A fence is a freestanding structure designed to restrict or prevent movement across a boundary. In other words, a fence is an enclosing structure, composed of any material which will present a sufficient obstruction intended to prevent intrusion from without or straying from within[i].
A fence can be made out of any material, such as wood, iron, or other material intended to prevent intrusion from without or straying from within. A fence is sometimes held as a building. The term “building” embraces all useful structures erected by man on land[ii]. In order to avoid injuries of one’s property by another party, an owner has the right to use fences as s/he may think proper[iii].
It is to be noted that several statutes define the essential ingredients that constitutes a good, lawful, and sufficient fence. For example, some statutes state that everyone has a right to compel his/her neighbor to contribute a certain cost of making and repairing a substantial and suitable party fence[iv]. Some statutes require that each person must keep his/her portion of a division fence in repair.
A division fence is a fence erected on the boundary line between adjoining proprietors[v]. In order to entitle a property owner to claim damages for the erection of a fence, by which his/her dwelling was darkened and made unwholesome, s/he must show a prescriptive right to the use of the light and air[vi].
Generally, no common law duty exists upon the adjoining land owners to fence their property[vii]. A partition fence considered the joint property of the adjoining landowners cannot be arbitrarily removed or destroyed by either of the owners without the consent of the other. If one owner improperly removes or destroys a partition fence, then s/he is liable to the other. It is to be noted that even if each adjoining landowner owned his/her part of the fence in severalty, neither of them can remove it to the damage of the other without complying with statutory provisions providing for removal[viii]. However, a duty to fence in one’s property can arise through an agreement[ix], statute, or by prescription. It can be seen that fences become a fixture and part of the realty in the absence of an agreement to the contrary.
It is to be noted that a person can be held liable for a civil action if s/he constructs or maintains a fence violating a statute. An individual possesses no right to destroy a fence that is situated in the property of another person. However, a person has the right to remove a fence located completely upon his/her own land if there is no statute to the contrary. Similarly, criminal liability is imposed by statute for wrongful removal or destruction or causing injury to a fence under certain jurisdictions.
[i] Kitrell v. Board of Adjustment, 201 Neb. 130 (Neb. 1978).
[ii] Parrish v. Hainlen, 124 Colo. 229 (Colo. 1951).
[iii] Jeffries v. Burgin, 57 Mo. 327 (Mo. 1874).
[iv] Hammond v. Lotz, 240 La. 734 (La. 1960).
[v] Grosby v. Harper, 4 Conn. Cir. Ct. 196 (Conn. Cir. Ct. 1966).
[vi] Guest v. Reynolds, 68 Ill. 478 (Ill. 1873).
[vii] Longfellow v. Sayler, 737 N.W.2d 148 (Iowa 2007).
[viii] Laughlin v. Franc, 247 Iowa 345 (Iowa 1955)
[ix] Longfellow v. Sayler, 737 N.W.2d 148 (Iowa 2007).