A National AgLaw Center Research Article
The Constitutionality of Partition FenceStatutes in the Midwest
James L. Molloy
I. Introduction
Fence law deals with the regulation of boundaries and fence disputes. Typically, laws inthis category prescribe when a fence is required, what a legal fence is, howresponsibility for a fence is divided, and how to resolve disputes between propertyowners. A primary area of fence law concerns the rights and duties of landowners onadjoining properties to jointly erect and maintain partition fences. A “partition” or “line”fence is a fence on or very near the boundary line separating adjoining properties.Numerous states statutorily require landowners of adjoining rural properties to erect andmaintain partition fences between their properties. Generally, these statutes contain a“forced-contribution” or “cost-share” component that requires the adjoining landowners toshare the cost of erecting and maintaining the partition fence.In certain states, the forced-contribution component exists even where the partitionfence is not statutorily required and only one landowner wishes to enclose his property.When one landowner properly requests that an adjoining landowner share in the cost of the erection and/or maintenance of a partition fence, the adjoining landowner is requiredto do so.Frequently, partition fence statutes are enforced by “fence viewers,” typically localgovernment officials or appointees.
If a dispute arises, the fence viewers examine thesituation and allocate responsibility for these types of fences. Generally, each landowner is responsible for his “fare share” of the cost.
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Associate Professor of Business Law, College of Business and Economics, University of Wisconsin-Whitewater.
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Assistant Professor of Business Law, College of Business and Economics, University of Wisconsin-Whitewater
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In Wisconsin, for example, town supervisors, city aldermen, or village trustees. W
IS
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TAT
. §90.01.
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In most states, the “right-hand rule” applies. Each landowner stands in the middle of theboundary line and faces the fence (or where the fence is planned to be constructed), and each isresponsible for the construction and maintenance of the portion of the fence to his right. If thedivision is unfair due to water gaps, gullies, etc., the landowners, with the aid of fence viewers, if necessary, can agree to a different division.
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