Some time ago, I posted about dealing with the neighbors when it comes to trees. This entry will be about another common neighbor issue — fences. Unlike trees, the topic of fences has its very own Title in the Idaho statutes (Title 35). Rightly or wrongly, this puts it on a level with other Titles, such as “Courts and Court Officials,” “Revenue and Taxation,” “Insurance,” and “Crimes and Punishments.” Accordingly, there are a number of specific laws that deal with fences, highlighting the unique role fences have played in the development of the West.
For starters, Idaho Code Section 35-101 defines a “lawful fence” to include the following:
- at least 4.5 feet high;
- the bottom must be no more than 20 inches above the ground; and
- the space between the top and the bottom must be “well divided.”
Section 35-102 goes on to describe lawful fences in more detail, including specific instructions for fences made of stone, worm fence, posts with boards, and wire. It also provides that virtually anything that presents a suitable obstruction to livestock is a lawful fence, including rivers, mountains, creeks, etc.
Section 35-104 sets up the general rule governing “line fences,” or fences that run along the boundary between two tracts of land. Essentially, each landowner is responsible for erecting and maintaining half of the boundary fence between the property — specifically the left half. This almost sounds like a joke, but it isn’t: “Each adjoining land owner . . . must construct and keep in repair that half of the line fence between their respective tracts of land which is to his left when he is standing on his own land facing the other. . . .”
So why does Idaho have these specific fencing laws? Cows. Idaho follows the rule of most western states: cattle that wander onto someone else’s land are not trespassing. This can be a big deal — cattle can do significant damage to land if given the opportunity. So it is incumbent on land owners to fence out the neighbor’s cows and the fence laws establish the minimum standard for doing so. If a landowner erects a lawful fence and the neighbor’s cows still make it through the fence, then the fence owner does have a claim against the livestock owner. Thus the specific rules regarding fencing. (This general rule has been limited somewhat over time by the creation of herd districts and other legislative efforts to restrict the free-roaming of livestock.)
But these laws don’t necessarily help resolve the inevitable disputes that arise in urban areas between two homeowners regarding the fences between their properties. Often CCRs on the property will dictate particular types of fencing and may define who will pay for the fencing. Often, however, the rule is simply that each neighbor pays for half of the cost of the fence, in the spirit of Section 35-104. This is great, in theory, but can breakdown in practice where, for example, one neighbor wants to make a significant upgrade to the style of fence, or where the neighbors disagree about the location or orientation of the fence. Another issue that can arise is where one landowner wishes to “allow his land to be uninclosed [sic]. . . .” In that case, the unenclosed landowner would not have to pay for the cost of half of the fence.
As with most legal disputes involving people in ongoing relationships (neighbors, ex-spouses, business and supplier, etc.), the best solution may well be whatever the parties can agree to, rather than going through a judicial proceeding. In these cases, the “wine and cheese” or “coffee and cookies” approach may be the best solution (present the neighbor with plenty of wine and cheese, and only then broach the issue of paying for that new fence).
As a final note, be aware that anyone who carelessly exposes livestock to injury by leaving barbed wire “strewn around on the ground” face a fine of no less than $5 and no more than $25. Idaho Code Sections 35-301, 35-305. You just never know what interesting laws you’ll find on the books…
