Endres and Schlessinger report in their state of Illinois, if adjacent landowners cannot agree on splitting the cost of a fence, the law provides for the appointment of a disinterested third party—“a fence viewer”—who has the power to allocate the costs. And as recently as 1995 that concept was upheld by an appellate court. The court said the legislature has had 180 years to say each property owner pays half—but instead retained the law as saying each property owner should pay—what is termed—“just proportion”—and that can mean any percentage from zero to one hundred.
The agriculture law specialists have been looking at ways to make the Illinois Fence Law more fair and point to the Missouri law, which has evolved several times over the past 200 years, and has held up in a state which is the second largest livestock producing state in the US. The most current version of that law has the first livestock owner paying for a fence to keep his livestock in, but if a second adjacent landowner begins raising livestock, he is required to pay for half of the cost of the fence. And if they want a more expensive fence, then that is up to the second landowner.
"Good fences make good neighbors"
To help understand the impact of the law, the U of I ag law specialists say imagine a world without fences. The livestock owner would benefit from his animals grazing on someone else’s property. And the property owner without livestock would not get to enjoy his property due to the damage of someone else’s livestock. They conclude that a hybrid method of cost sharing would be the most equitable.
Such a hybrid would have adjacent livestock owners share the cost of the fence equally as current Illinois law holds. But if only one land owner had livestock, he would pay the full cost of the fence. But if the second owner began raising livestock, that person would pay half the cost, and also assume half of the maintenance.
Their analysis of current laws in Illinois cause one to wonder how fence laws in other states are structured and if they have kept up with modern day livestock dynamics. A fence may be horse high, steer strong, and hog tight, but without livestock around it does not do much to control corn pollen from one field to the next.
With changes in livestock production over the past few decades, many state fence laws may be out of date, and need either wholesale revision or only minor modification. Laws that call upon adjacent landowners to share the cost of the fence may be penalizing one landowner who has no livestock and no plans to use a fence. However some livestock owners still need fences, and laws need to be updated to accommodate those needs, which are growing rarer.
Source: FarmGate blog