We finally did it!  After more than twenty years of introducing different fencing law bills, the General Assembly passed and the governor signed into law major changes to our fencing statute (Chapter 272).  These changes took effect August 28, 2001. 

What were the major changes?

1. Allows for “forced contribution and maintenance” only if the neighbor has livestock running against the division fenceAdopted the “right-hand” ruleClarified what constitutes a “lawful fence”
2. Removed “double damages” language

General vs. Optional Fence Law Counties

Change #1:  Modified Forced Contribution and Maintenance

    Only if the neighbor has livestock placed against the division fence can he be forced to pay for half the cost of construction, as well as be required to maintain the right-hand half.  If the neighbor doesn’t have livestock against the fence, you will have to put up the entire cost of the division fence and maintain the entire fence.  But you are to report the total cost to the associate circuit judge who will authorize the cost to be recorded on each neighbor’s deed.  If your neighbor later places livestock against the division fence, then you can get reimbursed for one-half the construction costs.  See 272.060.1 and 272.132 of the new statute at <http://www.moga.state.mo.us/STATUTES/C272.HTM>.    Under the prior law, either neighbor could force the other neighbor to pay for half of both the construction and maintenance of a division fence, regardless of whether the reluctant neighbor had livestock against the fence. 

Change #2:  The Right-Hand Rule

    Most of us assumed there was a “right-hand rule” as a custom, but there was no such language in the former statute.  Now the statute clearly says neighbors who cannot reach agreement as to which portion is whose to build and to maintain shall apply the right-hand rule.  Each neighbor stands on his land looking at the common boundary, finds the midpoint, and is responsible for the half to his right (272.060.1).  This assumes each neighbor has livestock against the division fence.  Where your neighbor doesn’t have livestock against the fence, then you will have to build and maintain the whole fence until such time as your neighbor places livestock against it.    Under the prior law, you would have to take your neighbor to court if you and your neighbor couldn’t reach a fencing agreement. 

Change #3:  What Is A “Lawful Fence?”

    Some of you may still think the statutory definition of “lawful fence” is too cumbersome and confusing, but you should have seen it under the prior law!    Basically, 272.020 says that “lawful fence” is any fence consisting of posts and wire or boards at least four feet high (and mutually agreed upon by adjoining landowners or decided upon by the associate circuit court), with posts set firmly in the ground not more than twelve feet apart.     One frequent question is the situation where both neighbors have “livestock” against the division fence but one neighbor wants a more costly fence, probably because his livestock require a stronger, perhaps higher fence.  The associate circuit court for your county will be the ultimate decider on that issue.  The new statute in 272.136 does state that you can build the neighbor’s portion in excess of the lawful fence required.    The three-fence-viewers approach remains in the revised law as the court’s mechanism to settle disputes (272.040).  Each fence viewer is to receive $25/day, and such costs are to be shared equally by the neighboring landowners. 

Change #4:  Actual vs. Double Damages?

    What if your right-hand division fence is in need of repair and your animals trespass onto your neighbor and cause damages to crops and/or livestock?  Are you liable?  Yes.  But for the actual damages done.  See 272.030.   Under the prior law, there was language in 272.110 (now deleted) allowing double damages if your livestock escaped through your defective portion of the division fence. 

Neighboring Landowners Still Free To Make Their Unique Fence Agreement

    In both the new statute and the prior provisions, neighboring landowners are free to contractually bind themselves to fencing provisions different from those in the statute.  And this includes agreeing that no division fence is needed (272.134).  The fencing statute is simply a default provision for those situations where the neighbors cannot reach agreement.   

Fencing Agreements Should Be In Writing AND Recorded Against Both Titles

    When you and your neighbor reach an understanding about what type of division fence and who is to build and maintain which portion, put it down in writing, sign it, and record it against the land title (county recorder’s office) of both neighbors.  Oral fencing agreements violate the statute of frauds and are unenforceable.  Furthermore, only recorded written agreements will bind successor owners (buyers, gift recipients, and/or heirs). 

How Are Things Different In An “Optional Fence Law” County?

·        Forced Contribution and Maintenance:  If either neighboring landowner needs a division fence, the neighbor has to pay for half the cost of the “lawful fence” (different definition in optional counties) AND maintain half.·        Lawful Fence is defined basically as one equivalent to a fence of four barbed wires supported by posts not more than twelve feet apart, or fifteen feet apart with one stay (272.210.1).  If either neighbor wants a more costly fence, then he will have to build it and pay for it.·        No Right-Hand Rule:  The optional county fence statutes make no mention of any right-hand rule.  Each neighbor is to build and to maintain “half.”  Disputes are to be taken to the associate circuit court, who appoints three fence viewers to report back to the court.·        Actual Damages:  If your livestock trespass through your portion of the division fence and it was in need of repair, then you may be liable for the actual damages caused to your neighbor’s crops and/or livestock (not double damages).  See 272.230. ·        Neighbors are still free to make a fencing agreement which is different from these statutory provisions.  Just be sure it is in writing, signed, and recorded properly (best to have an attorney do this).

  For further information:

• Missouri Ag Law Center website:  http://aglaw.missouri.edu/MALC.htm
• Missouri Statutes, Chapter 272:  http://www.moga.state.mo.us/STATUTES/C272.HTM