When pondering Iowa fence law, my mind drifts back to a client and I busting through some thick nasty cover one sultry day a few July’s back, swatting flies as we walked, and checking out the fenceline on a 120-acre farm along the Des Moines river, in Iowa.
“This fence is pretty rough,” he said, as we paused at the top of a little ravine.
Your right this fence-line can barely be called a fence-line, that’s for sure. I answered back.
From the looks of things, no livestock had been on either side of that fence in a long, long, time.
And it appeared that neither landowner really cared about the condition of the fence anymore since neither seemed to have livestock to contain.
“What are my obligations for the fence,” my client asked. “Am I required to make the fence better or build a new fence if I buy the place”?
A look into The Iowa fence law code:
(The Iowa fence law code is very old and some of it dates back to the late 1800’s and earlier!)
If you are an Iowa landowner then you may already be familiar with Iowa fence law.
The law is rather out-dated and there are plenty of folks who disagree with some or all of it (especially those that don’t own livestock, it seems.)
The law states that existing border fences be maintained by both landowners and that the expense shared by both adjacent landowners.
Additionally, if there is no border fencing, and if one owner decides to have one, then that person can demand, by written request, the adjacent landowner to build a legal fence.
“Respective owners of adjoining tracts of land shall upon written request of either owner be compelled to erect and maintain partition fences, or contribute thereto, and keep the same in good repair throughout the year.” (a)
Who Pays for the Fence?
In determining how to apportion fence responsibilities under the statute, many landowners have traditionally applied the right-hand rule: two adjoining property owners, facing each other at the center of the fence along their shared property boundary, each agree to build the right half from the center of the property to the end of the property line. While this is an acceptable practice, it is not based in statutory or case law. Thus, it is not a required method of allocation. ( Iowa Fence Requirements: A Legal Review By Kristine A. Tidgreni July 27, 2016 )
Let’s go back to the question of my client.
Does he need to make that poor, below-code, fence-line better if he buys the land? Even though neither side owns or runs livestock?
He may need to make that border fence-line better – it all depends upon what the adjacent landowner desires.
For one thing, if the adjacent landowner requests a fence then it needs to be a legal fence. (If neither neighbor cares about having a fence then there is no statutory requirement to have one).
What if the adjacent landowner desires, an even better fence than the Iowa fence law code has established as the minimum allowance for a legal fence? The Iowa fence law provides that all partition fences may be made tight by the party desiring it, and when that party’s portion is so completed, the adjoining landowner must follow suit. ( Iowa Code § 359A.19.) A tight fence must be “securely fastened to good substantial posts, set firmly in the ground, not more than 20 feet apart.” (Iowa Code § 359A.20 )
359A.20 TIGHT FENCE:
All tight partition fences shall consist of:
1. Not less than twenty-six inches of substantial woven wire on
the bottom, with three strands of barbed wire with not less than
thirty-six barbs of at least two points to the rod, on top, the top
wire to be not less than forty-eight inches, nor more than fifty-four
2. Good substantial woven wire not less than forty-eight inches
nor more than fifty-four inches high with one barbed wire of not less
than thirty-six barbs of two points to the rod, not more than four
inches above said woven wire.
3. Any other kind of fence which the fence viewers consider to be
equivalent to a tight partition fence or which meets standards
established by the department of agriculture and land stewardship by
rule as equivalent to a tight partition fence.
You may wonder if you have a duty to build and or to maintain a boundary partisan fence if you do not own livestock?
It would seem that the answer would be no.
But the real and legal answer, it seems, is yes.
In Iowa, landowners with livestock have a duty, by law, to fence their livestock in so that they don’t run at large. (lawful duty to fence livestock in)
However, adjacent landowners who do not own livestock are obligated by law to maintain their portion of any boundary partisan fence. (lawful obligation to keep livestock out)
This means that even if you do not own livestock and you do not maintain a sufficient and legal partition fence then you have little to no recourse for any possible damages that may be caused by livestock escaping onto your land.
The livestock owner would likely not be held responsible for damages if you do not maintain a legal partisan fence to keep his livestock out.
The law is pretty crazy in this regard if you ask me. But that is the way it is.
But that is the way it is.
It is sort of like saying, I’ve got this pit-bull here in my yard on this leash.
But he is big and mean and nasty and he may break that thing and dash off. If he comes into your yard and mauls you, I can’t be held responsible because you didn’t put up an appropriate barrier to stop him.
I realize that sounds like a silly and extreme example but it is based on the same logic as the Iowa fence code is using in regard to livestock.
What do you think?
The Iowa fence law code does establish a nice base point at which boundary line disputes and rights of ownership can be corrected and maintained.
Disputes between neighbors regarding boundary fencing are resolved by fence viewers who are township trustees – either 3 or 5 registered voters of the township – that have been given special power to resolve fence-line controversies. They do not have the authority, however, to resolve legal boundary issues.
There are ways in which property ownership rights can be established and transferred based simply upon where the partisan fence is located.
If a boundary fence exists and both sides don’t dispute it’s location for a period of at least 10 years, then that it becomes the legal boundary (boundary by Acquaintance). This is important because even though a boundary fence exists this does not mean it is on the real legal boundary or that it is on the exact location that a survey of the land would reveal. But after ten years, if neither landowner disputes the location of the partition fencing, then that becomes the legal border regardless (Iowa Code § 650.6)
This important for landowners to realize because often certain sections of border fencing is placed for convenience.
Fencing by convenience is not uncommon at all, and in fact, is done all the time, especially on rough and rugged terrain.
This is done to make it easier get around something when fencing off the border – perhaps the real line is close to the edge of a rock bluff or goes across a creek with big, steep hillside, for example.
In these cases, a landowner may place fencing just off to the edge of these places or slightly off and around the edge of these areas to more conveniently run the fence and, thus, dodge the obstacle.
If you are a landowner and have any questions regarding your land borders, I suggest going to the courthouse and looking at your plat-of-land. (county auditor).
Again, is not uncommon to have at least some portion of a fence-line, to be run by convenience, especially on large or “rugged” farms. If you find such to be the case on your farm, you should notify your neighbor right away, in writing, that you have knowledge of the real border in those areas and that the partition fence is not on it.
The are other ways ownership rights can be dictated and transferred by way of Iowa fence law code.
Something similar to Easement by Acquaintance is Easement by Prescription
With Easement By Prescription, both owners have knowledge that a border fence exists in the wrong area but they continue to use it as though it is placed correctly. If both sides continue to use the borders as the “real border” for a period of 10 years or more, then ownership rights can transer by means of easement by prescription. (When a landowner “uses another’s land under a claim of right or color of title, openly, notoriously, continuously, and hostilely for ten years or more” an easement by prescription is created. Iowa Code § 564.1.)
Finally, misplaced fences could result in land acquired via “adverse possession.” Adverse possession is a similar doctrine to an easement by prescription, however adverse possession is obtained by occupying the land, not simply using it. (Iowa Code § 564.1.)
This covers some of the basics regarding Iowa fence law to get more details you should download
Iowa Fence Requirements: A Legal Review By Kristine A. Tidgreni July 27, 2016 (button at the bottom of this post)
Something fishy with Iowa fence law:
In Iowa, landowners own the bottom of any lake or pond bed that sits on their land. In certain instances, the boundaries between adjacent landowners may run through a portion of a lake or pond.
Can a landowner put up a fence that runs through a lake or pond and on their property border, and fence other’s out?
However, many owners choose to make different agreements that allow all owners of a shared lake to enjoy the whole water source. (b)
a: Gravert v. Nebergall, 539 N.W.2d 1184 (Iowa 1995).
b: Fence Feuds: A Two-Sided Story
posted by Shannon Holmberg | Jul 16, 2015