Don’t Get Fenced In

By
November 17, 2019

No matter how much credence the old saying “good fences make good neighbors” may hold, Chapter 90 of the Wisconsin Statutes exists to prescribe general rules regarding fences in agricultural areas of Wisconsin.  These laws lay out when a fence is required, what a legal fence is, who is responsible for the fence and how to resolve disputes between property owners.

In Wisconsin, a fence is required when one neighbor uses their land for farming or grazing purposes.  Even if only one neighbor is using their land to farm or graze, both neighbors share the obligation related to costs and maintenance of the fence.

Chapter 90 is in place for the benefit of neighbors and therefore retains flexibility in its guidance.  In the agricultural areas where the law applies, landowners of adjoining properties can mutually agree to not have a fence in place at all or agree to a fencing arrangement different from what the statutes lay out.

For example, say Sarah and Nick are neighbors. If both of their properties are simply wooded lands, then no fence is required. But if Sarah starts using her land for farming or grazing, both her and Nick would have to jointly construct and maintain a fence between their respective properties, unless they agree otherwise.  This applies even if Nick is not using his property for purposes of farming or grazing.

What is a Legal Fence?
Fences can be made of woven wire alone or with barbed wire or high tensile wire above; boards alone or with barbed wire or high tensile wire above; barbed wire or high tensile wire; or electric wire if agreed to in writing by both neighbors.  Generally, fences must be 50 inches high with the bottom not over 4 inches from the ground. Shorter heights will apply to electric fence, barbed wire fences and high tensile fences.

In the example above, if Nick does not use his property for purposes of farming or grazing, he may believe Sarah should own the entire responsibly for the fence because its necessity stems from Sarah’s decision to farm or graze on her property.  Under Chapter 90, however, both adjoining neighbors are responsible for erecting and maintaining their half of the fence.  The shared responsibility extends to the cost of the fence, which is to be split evenly between both neighbors.  The statutes also include guidance as to which neighbor is responsible for a given portion of the fence.  It directs that, whenever practicable, a neighbor who is standing on their own property line, facing their neighbor’s property, will have the duty to maintain the half of the fence on their right, with their neighbor maintaining the half on the left.

As is often the case throughout Chapter 90, neighbors are free to create and agree upon their own arrangement.

Binding Agreement
If neighbors should choose to agree to an arrangement different from what is set forth in Chapter 90, they should ensure the agreement is binding. The fence agreement should be in writing, signed and sealed by the owners and two witnesses, and filed with the town clerk.  Neighbors are encouraged to reach an agreement and resolve disputes among themselves. If a dispute cannot be resolved, either neighbor may engage their town or village.  Town supervisors (or applicable alderpersons or municipal trustees) are authorized “fence viewers” to resolve fence disputes.  If the land is partly in one town and partly in another, a “fence viewer” from each town is appointed, and each town clerk must maintain a record of the decision.

It is important to keep in mind that placement of fences do not equal boundary lines. “Fence viewers” do not have the authority to resolve boundary line disputes. Neighbors should look to a surveyor to determine actual boundary lines.

Different municipalities may have separate ordinances regulating fences in residential areas. It is recommended to engage the local municipal clerk or an attorney with questions involving fences.

 

© 2019 The Badger Common Tater Antigo, WI.  Reprinted with permission

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