AgDM Whole Farm Legal and Taxes Current Issues, March 2007

Recent weather events raise questions about Iowa fence law and rules for trespassing livestock

Roger McEowenby Roger McEowen, Leonard Dolezal Professor in Agricultural Law, (515) 294-4076, mceowen@iastate.edu

The recent winter weather has caused damage to numerous fences, particularly in western Iowa. Reports have come in that snow completely buried fences in some locations, severely damaging them and allowing livestock to walk out of enclosed pastures. So, a quick review of Iowa law on the rules for rebuilding fences and liability for trespassing livestock is in order.

Under Iowa law, adjoining landowners are deemed to own a partition fence (a fence that is located on the property line) in common. Thus, adjoining landowners have an obligation to share equally in building and maintaining partition fences. That’s the case even if one landowner doesn’t have livestock - that’s what the Iowa Supreme Court said in 2001. Prior to that, in 1995 the Court upheld the law as constitutional against a challenge by a non-livestock owner claiming that the rule constituted a taking of private property without compensation. So, the place to start is to discuss the matter with your neighbor on the other side of the fence. Many landowners use the so-called “right-hand” rule to settle the building and/or maintenance issue. That means they meet at the mid-point of the fence facing each other with each agreeing to fix that portion of the fence to their right.

If the parties can’t agree how to fix the fence, Iowa law vests the township trustees, acting in their capacity as “fence viewers” with jurisdiction over such matters. Upon request, the fence viewers will meet and assign the part of the fence which each owner shall rebuild or pay for and set the time for completion. The fence viewers may also specify the kind of repairs to be made. If the fence is not repaired within the time prescribed in the order, the fence viewers will require the complaining landowner to deposit enough money with them to pay for repairing the fence together with the fees of the fence viewers and costs. The complaining landowner will be reimbursed as soon as the taxes are collected.

Iowa law specifies that all orders and decisions made by the fence viewers are to be in writing, signed by at least two of them, and filed with the township clerk. Appeals of decisions of the fence viewers can be filed with the county district court. Under Iowa law, if livestock escape an enclosed pasture the presence of the livestock on a roadway gives rise to a rebuttable presumption or inference of negligence. The injured or damaged party, however, must still show that the livestock owner failed to exercise “due care” in keeping the livestock enclosed. An escape due to a weather-related event coupled with an attempt to recover the livestock as soon as possible would certainly relieve the livestock owner of liability.

 

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