By TIM HORAN
A fence viewing is scheduled to take place at 9 a.m. on Tuesday, June 11 by the Dickinson County Commission and many county rural residences have their eye on the outcome.
The meeting to be held at 3100 Avenue and Fair Road, north fence line of southwest quarter, is open to the public.
Commissioners LaVerne Myers and Craig Chamberlin will view the fence. Commissioner Lynn Peterson will be out of town that day.
The fence viewing is being held to settle a fence dispute between two property owners. The viewing of the fence has been delayed twice due to wet conditions.
Under Kansas law, the county commissioners in the county where the fence in question is located are the fence viewers. They either may act together collectively as a board or any two of them may be appointed to serve as fence viewers.
According to a brochure published by the Kansas State University Agricultural Experiment Station and Cooperative Extension Service, the fence viewers will view the fence in controversy and then assign to each party, in writing, an equal share or part of the fence to build, maintain or repair.
The decision of the fence viewers is recorded at the registrar of deeds’ office in the county where the fence is located and, while they are acting as fence viewers, their decision is final, conclusive, nonappealable, and binding upon the parties and all succeeding occupants of the land.
The county commissioners are not expected to make a final decision on Tuesday.
Part of the K-State brochure is published on page 6.
Kansas fence law
by Kansas State University Agriculture Experiment Station and Cooperative Extension Service
In general, the owners of adjoining lands are required to build and maintain in good repair all partition fences in equal shares, unless the parties agree otherwise.1 In practice, however, many adjoining landowners adopt the “right-hand” or “left-hand” rule — they face each other at the mid-point of their fence and agree to build and/or maintain the portion of the fence to either their respective right or left. But in Kansas, the law states that building and maintenance is to be in equal shares rather than in halves.
Kansas is a fence-in jurisdiction. That means that livestock owners are required to fence their animals in.4 But, as stated above, state law requires that the owners of adjoining lands build and maintain in good repair all partition fences in equal shares.5 That sometimes creates problems when a livestock owner shares a partition fence with a crop farmer or other landowner who does not graze livestock and, hence, has no need for a fence. In addition, if the adjacent nonlivestock owners do not participate in the maintenance of their share of the partition fence, and injury results to them because of the defective fence that they were required to main¬tain, they cannot recover for damages caused by the adjacent landowner’s stock. Also, a nonlivestock owner will be held liable to others who are damaged by the neighbor’s livestock escaping through the defective partition fence.
Kansas law does indeed provide that if nonlivestock owners do not want their land enclosed, they cannot be forced to build or pay for an equal share of any partition fence.
The statute states:“No person not wishing his land enclosed, and not occupying or using it otherwise than in common, shall be compelled to contribute to erect or maintain any fence dividing between his land and that of an adja¬cent owner; but when he encloses or uses his land otherwise than in common, he shall contribute to the partition fence …”
By its language, two conditions must be satisfied before the statute applies — one party must not want their land enclosed, and the adjoining tracts must be used in common. Unfenced tracts are not used in common when they are used for different purposes (i.e., crop raising and cattle grazing). Thus, when a crop farmer (or other nonlivestock owner) adjoins a livestock owner, both adjoining landowners must contribute an equal share to the building or maintaining of a partition fence because the tracts are not used in common. While K.S.A. 29-309 has never been interpreted by an appellate court in Kansas, the Kansas attorney general has twice opined that the statute applies only to relieve a landowner from responsibility for sharing equally the cost of building and maintaining partition fences when the land is used in common and the complaining party does not want the fence.103
Procedure for Handling Fence Disputes
In some instances, adjoining landowners may come to an agreement as to how to allocate the responsibility between themselves for the building and/or maintenance of a parti¬tion fence. If an agreement is reached, it may be wise to put the agreement in writing and record it in the register of deeds office in the county where the fence is located. If the adjoining landowners cannot reach an agreement concerning fence building and/or main¬tenance, the “fence viewers” should be called.
Under Kansas law, the county commissioners in the county where the fence in question is located are the fence viewers.11 They either may act together collectively as a board, or any two of them12 may be appointed to serve as the fence viewers. Either of the adjoining landowners may apply to the fence viewers to resolve the conflict. The fence viewers will view the fence in controversy and then assign to each party, in writing, an equal share or part of the fence to build, maintain, or repair. The decision of the fence viewers is recorded at the register of deeds office in the county where the fence is located 13 and, while they are acting as fence viewers, their decision is final, conclusive, nonappealable, and binding upon the parties and all succeeding occupants of the land.
However, if the commissioners do not appoint “any two of them” to serve as the fence viewers, any decision concerning fence building and/or maintenance is deemed to be an opinion of the county commissioners as a board and is appealable under K.S.A. 19-223. If either party decides to disregard the ruling of the fence viewers, the other party may erect, repair, or maintain the entire fence and charge the nonperforming party for its share of the cost of the fence plus interest and attorney fees, if legal action is necessary for collection.
However, a recent Kansas Court of Appeals opinion requires the fence viewers be called not only to make an initial view of the fence, but also to view the fence whenever there is any subsequent argument between adjacent landowners concerning the partition fence.17 Thus, if one party disregards the initial ruling of the viewers, the other party cannot build the nonperforming party’s portion of the fence or make necessary repairs until the viewers have made a second view and determined that the fence in question needs to be built or repaired. After the repairs have been made, a bill cannot be sent to the nonperforming party until the viewers have made a third view to certify the work and the amount claimed due.
The best way to avoid fence disputes with adjoining landowners is to maintain commu¬nication and have at least a general under¬standing of the Kansas rules involving partition fence building and maintenance. Many conflicts may be able to be resolved by mutual agreement of the parties. If an irreconcilable dispute does arise, it may be best to involve the fence viewers as soon as possible. In any event, it remains clear that good fences make