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31-25-1. Fences across highways -- Petition by adjacent landowners -- Notice
and hearing -- Gates or grates required
The board of county commissioners of any county having within its boundaries, any county,
township, or section-line
highway not included in s 31-25-1.1 extending or running through or across grazing land,
may, upon petition, signed by a majority of the adjacent landowners along the portion of
such highway involved, and after a hearing is had, on notice mailed by the county auditor
to all of said landowners, not less than ten days before such hearing, authorize such
landowners to erect and maintain fences across such highway. However, the board of county
commissioners shall require the erection of gates or grates, or both, in such fences at
points designated by the board, so that the public may have access to the highway.
31-25-1.1. Fences erected across unimproved section-line highways -- Gates --
Access to highways protected -- Violation as misdemeanor
A landowner may erect a fence across an unimproved county, township or section-line
highway. For the purposes of this section an unimproved county, township or section- line
highway is any county, township or section line not commonly used as a public right-of-way
and never altered from its natural state in any way for the purpose of facilitating
vehicular passage. At any point where a fence crosses such highway, the landowner shall
erect and maintain an unlocked gate which may be opened easily or provide other suitable
access to the highway. If the gate or other access is not large enough or if the gate does
not open easily enough to satisfy the needs of those using the highway, the landowner
shall erect a larger gate or a gate that can be more easily opened or provide other
suitable access to the highway. The landowner shall erect the larger gate or the gate
which opens easily or provide the other suitable access upon a request filed with the
sheriff of the county in which the land is located by an adversely affected person. If a
request is filed, the sheriff shall notify the landowner. The landowner shall comply with
the provisions of this section within seven days of notice. A landowner who violates any
of the provisions of this section is guilty of a Class 2 misdemeanor.
31-25-2. Cattle ways authorized -- Application to highway authority -- Designation
of construction particulars -- Maintenance by landowner
Upon application to the department of transportation, board of county commissioners or
board of township supervisors, by any person for permission to construct a cattle way
across or under any public road, such highway authority maintaining the highway described
in the application may in its discretion grant the application upon condition that such
way shall be constructed in all particulars as directed by such department or board and
sall not interfere with public travel. The grade of the road over the cattle way shall not
at any point exceed one foot in ten feet. Applicant must construct and agree to keep the
same in repair at his own expense.
31-25-3. Failure of landowner to maintain cattle way -- Repair by highway
authorities -- Recovery of cost
If any person on whose land a cattle way is constructed pursuant to s 31-25-2 fails to
keep the same in repair, the proper board shall cause the same to be repaired and charge
the cost thereof to the owner of such cattle way and such cost shall be recovered by a
civil action by the state, county, or township against the owner of such land and cattle
way.
31-25-4. Livestock guards across county or secondary highways authorized -- Guards
not considered highway obstruction
The construction and maintenance of livestock guards over or across county or secondary
highways so constructed that automobiles and trucks may pass over the same and which will
prevent the passage of livestock across such livestock guards is hereby authorized. The
construction and maintenance of such livestock guards shall not be considered as creating
a barrier or obstruction on such highways.
31-25-5. Dimensions of livestock guard -- Passage for wider vehicles
All livestock guards shall be at least ten feet wide on the ground. In addition, at one
side of such livestock guard there shall be provided or constructed a gate, at least
twenty feet wide to accommodate the passage of teams, and wider vehicles.
31-25-6. Authority of governing body required -- Removal of livestock guard on
order of governing body
No livestock guards shall be constructed under s 31-25-4, unless constructed by or under
the express authorization of the governing body having jurisdiction over such highways,
provided that such livestock guards may be removed or ordered removed by such governing
bodies whenever such livestock guards shall be deemed no longer necessary.
31-25-7. Appeal from order authorizing or forbidding livestock guard -- Procedure
for appeal -- Trial de novo
Whenever any interested person shall feel aggrieved by reason of the action of the
governing body in authorizing or refusing to authorize the construction, erection and
maintenance of livestock guards, or ordering removal of said livestock guard, such person
may within sixty days after the decision of such governing body, appeal to the circuit
court for the county wherein such governing body is situated. Such appeal shall be in
writing, and signed by the person feeling aggrieved or by his attorney. Upon the serving
of such appeal and the filing of the same with the clerk of the circuit court, the same
may be brought on for trial de novo in said circuit court upon ten days' notice. The
circuit court shall hear all relevant evidence and shall make and enter such findings,
conclusions and judgment as it deems proper.
31-25-8. Appeal upon failure of governing body to act on request for authorization
If any person shall file a request for authorization to construct a livestock guard, with
the governing body having jurisdiction over such highway, and the governing body shall
fail or neglect to act upon such request at its next regular meeting, such failure or
neglect to take any action shall be deemed to be a refusal of such authorization, and the
person filing such request may appeal the same as provided in s 31- 25-7.
31-25-9. Livestock guards constructed prior to enactment of statute
Sections 31-25-4 to 31-25-8, inclusive, shall not apply to livestock guards which had been
constructed and maintained and were in existence on February 20, 1959.
31-25-10. Regulatory signs for unfenced roads in livestock grazing area --
Application for erection
Any person grazing livestock in an area where there are no fences along a road may apply
to the governing body that has the responsibility to maintain that road to erect a
regulatory sign that livestock will be at large along the road. If the governing body
permits the erection of such sgns, it shall erect at least one sign where the road enters
the grazing area which shall state how far the grazing area continues and one sign where
the road leaves the grazing area.
31-25-11. Uniform signs
The transportation commission shall design, produce and make available a uniform sign
pursuant to s 31-25-10.
31-25-12. Cost of signs
The cost of the sign shall be arranged between the governing body and the person applying
for it. The sign shall be erected by the governing body.
40-28-1. Permitting adult male animal to run at large as petty offense
It is a petty offense for the owner or person in charge of any stallion over the age of
eighteen months, or any bull over the age
of ten months, or any ram or boar over the age of eight months to permit the same to run
at large.
40-28-2. Castration lawful for adult male animal running at large -- Liability for
unauthorized castration
It shall be lawful for any person to castrate or cause to be castrated any animal
described in s 40-28-1 found running at large; but if any person shall castrate any
stallion, bull, ram, or boar, and it shall be proved that such animal was not of a class
of stock prohibited from running at large by s 40-28-1, such person shall be liable for
damages to the amount of the value of such animal so castrated.
40-28-3. Running at large defined
For the purpose of ss 40-28-1 and 40-28-2 the term "running at large" shall mean
intentionally left outside of the inclosure of a legal fence, and off of the lands owned
or controlled by the owner of such animal.
40-28-4. Liability for trespass by livestock -- Exception where fence inadequate
Except as in this chapter otherwise provided, any person owning or having in his charge or
possession any horses, mules, cattle, goats, sheep, or swine, which such animals shall
trespass upon the land, either fenced or unfenced, owned by or in possession of any
person, or being cropped by any person injured by such trespass, shall be liable to any
such person injured for all damages sustained by reason of such trespassing. No person
shall be liable under this chapter where the person injured has maintained an inadequate
partition fence and notice thereof has been given pursuant to s 43-23-5 or if he is not
required to build such fence because of frozen earth pursuant to s 43-23-7.
40-28-5. Trespass liability not applicable to unfenced lands within national
forests
No person shall be liable for damages caused by horses, cattle, mules, goats, or sheep
owned by him, which trespass upon lands within the exterior boundaries of the Black Hills
and Harney national forests, which lands were not at the time of the trespass inclosed by
a legal fence, as defined in ss 43-23-3 and 43-23-4.
40-28-6. Notice to livestock owner of injury from trespass
The person claiming injury from trespass of livestock, before commencing action thereon
shall notify the owner or person having in charge such livestock, of the injury and
probable amount of the damages, provided he knows to whom such livestock belongs.
40-28-7. Retention of trespassing livestock until damages paid
Any person suffering injury from trespass of livestock may retain and keep in custody such
offending animal or animals until the damages and costs are paid, or until good and
sufficient security be given for the same.
40-28-8. Notice to owner of seizure of trespassing animals
Whenever any animal or animals are restrained under s 40- 28-7, the person restraining the
same shall forthwith notify the owner or person in whose custody the same were at the time
the trespass was committed, of the seizure thereof, providing the owner or person who had
the same in charge is known to the person making said seizure.
40-28-9. Security given by owner for release of trespassing animals held for
damages
The security required by s 40-28-7 shall be in the form of a bond or other undertaking,
signed by the owner of the trespassing animal or animals and shall run to the person
claiming damages. The bond or other undertaking shall be for twice the amount of damages
claimed and in no case less than one hundred dollars.
40-28-10. Livestock owner's bond to be approved by sheriff -- Release of animals
-- Sheriff's fee
If the person aggrieved is not satisfied with the sufficiency of the bond and the parties
cannot agree, a bond shall be furnished and shall be approved by the sheriff and after his
approval the person holding the trespassing animal or animals is required to turn them
over to the owner. Failure to do so makes him a trespasser. The owner of the trespassing
animal or animals shall pay the sheriff five dollars for approving the bond and the owner
shall be taxed with the costs if a suit is instituted later.
40-28-11. Notice to sheriff when livestock owner fails to take up trespassing
animals -- Sheriff to take possession and care for animals
If the owner or person who formerly had the animals in charge is unknown, or if he
neglects or refuses for three days after receiving notice as provided in s 40-28-8 to take
up the animals or to furnish the bond provided for in s 40- 28-9, then the person
restraining the animals may, instead of retaining them in his own custody, notify the
sheriff of the county in which the animals were taken. It is the duty of the sheriff,
within three days after receiving notice, to take the offending animals into his
possession and to handle them in the same manner as estray animals under the provisions of
chapter 40-29.
40-28-12. Sheriff's lien for expenses
The sheriff has a lien upon animals taken into his possession pursuant to s 40-28-11 for
the expenses incurred by him as outlined in chapter 40-29.
40-28-13. Unauthorized taking of animal from person with lawful possession as
misdemeanor
Every person who takes or attempts to take any animal, restrained under the provisions of
this chapter, from the possession of the person having the same in charge, without the
consent of such person, except by due course of law, is guilty of a Class 2 misdemeanor.
40-28-14. Recovery of animals from sheriff by giving bond and paying costs
The owner or person having in charge animals taken into the sheriff's possession pursuant
to s 40-28-11 may recover the same from the sheriff at any time before the sale by paying
all damages and costs or by furnishing to the sheriff the bond provided for in s 40-28-9
and at the time of furnishing such bond, paying to the sheriff the costs and disbursements
already incurred.
40-28-15. Foreclosure of lien by sheriff's sale of animals -- Service of notice on
parties
If possession of animals taken into the sheriff's possession pursuant to s 40-28-11 shall
not be recovered from the sheriff by the owner or person who had the same in charge as
provided in s 40-28-14, within three days after such taking, then the sheriff shall
forthwith proceed to foreclose the lien provided by s 40-28-12 by a sale of the animals
taken, upon the notice and in the manner provided by law for the foreclosure of chattel
mortgages. If the owner or person having such animals in charge is known, such sale may be
had upon three days' notice to be given by the sheriff to such owner or person having such
animals in charge and to any person or persons holding a lien of record against such
animals, such notices to be served in the same manner as provided for service of summons
in civil actions.
40-28-16. County reimbursement of sheriff for costs not recovered from sale --
Recovery from owner of animals
If the proceeds of a sale pursuant to s 40-28-15 shall be insufficient to reimburse the
sheriff for his costs and disbursements as provided in s 40-28-12, then the county shall
reimburse the sheriff for such costs and disbursements as he may have expended in the
taking, caring for, and sale of the animals in excess of the amount received from such
sale, and the county may recover in a civil action, any amount so expended by it from the
owner or person having such animals in charge at the time of such taking.
40-28-17. Actions by county and landowner for costs and damages -- Application of
proceeds of sale
The county and the person suffering damage from such trespass may sue jointly or severally
for their several costs, expenses, and damages; provided that the receipts of the sale
shall be applied in the following manner: first, in payment of costs, expenses, and
disbursements of the sheriff and any remainder shall be paid to the clerk of the circuit
court to be applied upon the payment of any judgment thereafter secured by the person
suffering damage, provided that such action shall be brought in the proper court within
sixty days from the date of such sale.
40-28-18. Civil action for damages from trespassing animals -- Venue -- Procedure
Damages under s 40-28-4 may be recovered in a civil action, in any court having
jurisdiction thereof in the county where such damage may have occurred, and the
proceedings shall be the same as in other civil actions, except as modified in this
chapter.
40-28-20. Limitation of actions for damages
Any person seeking to recover damages pursuant to s 40- 28-18 shall file suit no later
than one year after the trespass occurred or six months after he knew or should have known
of the injury resulting from the trespass.
40-28-21. Surplus proceeds of sale -- Disposition
If the person suffering damage fails to bring an action within the time required or if
there is a surplus remaining after the satisfaction of the judgment, the proceeds of a
sale pursuant to s 40-28-15 shall be paid by the clerk of courts to the owner of the
animals. If the owner of the animals fails to claim the proceeds within six months, the
money shall be paid over to the county treasurer and credited to the school fund of the
county and shall be accounted for and expended as other school money.
40-28-22. Dismissal of action when defendant is not owner or person in charge of
animals -- Treatment as estrays
If upon the trial of an action brought under s 40-28-18 it appears that the defendant is
not the owner or person in charge of such offending animal or animals, the action shall be
dismissed, and such animal or animals shall be held and considered as estrays and the
person claiming damage shall be governed by the provisions of this code relating to
estrays.
40-28-23. Damages and expenses recovered by landowner
Upon the trial of an action under the provisions of this chapter, the plaintiff shall
recover the amount of damages sustained and the expenses of keeping the trespassing animal
or animals during the time he has restrained and retained the custody thereof.
40-28-24. Judgment against plaintiff when no damage sustained
If it shall appear upon the trial of an action under the provisions of this chapter that
no damage was sustained, judgment shall be rendered against the plaintiff for cost of suit
and damage sustained by defendant.
40-28-25. Judgment as lien on trespassing animals
Any judgment rendered in an action under the provisions of this chapter shall be a lien
upon such animals and the same may be sold and the proceeds applied to the satisfaction of
the judgment as in other cases of sale of personal property on execution.
40-28-26. Exemptions limited to absolute exemptions
No property shall be exempt from seizure and sale under executions issued upon any
judgment obtained under or by virtue of this chapter except such as is absolutely exempt.
43-17-35. Fencing certain land on both sides of navigable stream permitted --
Violation as misdemeanor
Any person who owns any tract of agricultural land on both sides of a navigable stream
may, individually, fence such tract, or any persons who collectively own any tract of
agricultural land on both sides of a navigable steam may, collectively, fence such tract:
(1) If livestock are annually pastured on such tract;
(2) If the fence is reasonably necessary to prevent the livestock from straying from such tract;
(3) If the fence is so constructed and so marked that it does not, under daytime and nighttime conditions, constitute a danger to the public; and
(4) If the fence is so constructed that the right of the public to utilize the navigable stream is not prohibited or unduly restricted. This section does not apply to any river or stream or portion of any river or stream that has been determined to be navigable pursuant to federal law. Construction of a fence in violation of this section is a Class 2 misdemeanor.
43-23-1. Erection and maintenance of partition fence -- Liability of owners of
adjoining land
Unless adjoining landowners otherwise agree, every owner of land shall be liable for
one-half of the expense of erecting
and maintaining a partition fence between his own and adjoining lands. However, no owner
of land is liable for such expense if neither keeps livestock on the affected tract of
land and neither derives any other substantial benefit from the fence for a period of five
years from the date of erection or repair of the fence.
43-23-2. Duty of adjoining owner of land to build half of partition fence
Unless otherwise agreed upon, if adjoining landowners are liable for one-half of the
expense of erecting and maintaining a partition fence pursuant to s 43-23-1, each owner of
adjoining lands shall build that half of the fence which shall be upon his right hand when
he stands upon his own land and faces the line upon which the proposed fence is to be
built.
43-23-3. Fence agreed to by owners of adjoining land is legal fence
Any fence upon which owners of such adjoining lands may agree, shall be a legal fence.
43-23-4. Description and specifications for legal partition fence -- Wire spacing
Where such owners do not agree upon a different sort of fence, a legal partition fence shall consist of sound wood posts at least six and one-half feet long and four inches in diameter, and firmly set at least two feet in the earth and not over thirty feet apart, or concrete posts six feet or more in length, having a diameter of not less than four inches and having a reinforcing rod not less than one-fourth inch in diameter throughout the full length thereof, firmly set and spaced as in the case of wood posts, or of steel posts not less than five and one-half feet in length, firmly set at least seventeen inches in the earth and not over twenty feet apart, or a combination of steel and concrete or wood posts in a ratio of not more than three steel posts to one of wood or concrete as above specified, firmly set as aforesaid according to the type of post and not over twenty- five feet apart. Such posts shall be firmly braced at ends, corners, and gateways or openings, to prevent sagging, and upon them shall be firmly stretched and securely attached to each at least four strands of ordinary commercial barbed fencing wire, the lower strand to be eighteen inches, the next twenty-eight inches, the third thirty-eight inches, and the fourth forty-eight inches from the earth. A deviation of not more than two inches in the wire spacing shall be considered to be in compliance with this section.
s 43-23-5. Neglect or refusal to erect and maintain half of legal fence --
Enforcement by adjoining landowner -- Service of notice and demand
If any owner of any land who is liable for one-half of the expense of erecting and
maintaining a partition fence pursuant to s 43-23-1 neglects or refuses to so erect and
maintain one-half of a legal fence on the lines separating his land from adjoining land,
the owner of the adjoining land may serve upon the delinquent owner a notice in writing
demanding that the delinquent owner shall erect or repair, as the case may be, a legal
fence along one-half of such line, describing it, within thirty days from the date of the
service of the notice and demand upon him.
43-23-6. Aggrieved owner of adjoining land -- Erection or repair of fence after
notice and demand on delinquent owner -- Recovery of costs and damages
If a delinquent owner neglects or refuses to erect or repair a partition fence within the
time specified in s 43- 23-5, the aggrieved owner may erect or repair the partition fence.
The aggrieved owner may recover the cost of erecting or repairing the partition fence in a
civil action and, in addition, recover an amount to be determined by the court as
compensation for the time spent by the aggrieved owner.
43-23-7. Erection of partition fence not required when earth is frozen
The delinquent owner shall not be required to build such partition fence at any season
when the earth is frozen.
43-23-8. Judgment for construction or repair of partition fence is lien upon land
of delinquent owner
The judgment entered for construction or repair of a partition fence shall be a lien upon
the land of the delinquent owner for which it was constructed, superior to all other liens
thereon except taxes.
43-23-9. Removal of partition fence restricted to repair or construction of new
fence
If adjoining owners of land have shared the expense of erecting and maintaining a
partition fence pursuant to the provisions of this chapter, neither owner shall have the
right as against the owner of the adjoining lands to remove the same or any part thereof,
except for the purpose of making immediate repairs or constructing a new fence.
43-23-9.1. Privileges and obligations of persons in physical possession --
Contract with owner -- Rights and liabilities of parties absent contract
For the purposes of ss 43-23-1 to 43-23-9, inclusive, any person who is in physical
possession of real property, whether by fee, lease, conveyance or other lawful means, has
the same privileges and obligations as the owner of such property. If the person in
physical possession of real property is different from the owner of such property, they
may provide for the disposition of rights and responsibilities pursuant to ss 43-23-1 to
43-23-9, inclusive, by contract. In the absence of such a contract, both the person in
physical possession of real property and the owner of such property may, individually or
jointly, exercise such rights and be held liable for such responsibilities as are provided
for in ss 43-23-1 to 43-23- 9, inclusive.
43-23-10. Opening or injuring fence or gate as misdemeanor
Any person who shall intentionally open, or leave open, let down, throw down, tear down,
or prostrate any fence, gate, or bars, legally constructed, located and lawfully
maintained, which encloses a meadow, pasture, livestock range or private other inclosure,
is guilty of a Class 2 misdemeanor.
43-24-1. Townships covered by chapter -- Assessed value of farmland -- Petition
for township election to make chapter applicable -- Form of ballot -- Effect of majority
vote
This chapter shall not take effect and be in force in any township in this state where the
average assessed valuation of agricultural or farmlands is less than thirty dollars per
acre, unless a petition signed by at least ten percent of the legal freeholders of said
civil township on or before February first, in any year, shall be submitted to the
township board of supervisors by filing the same in the office of the town clerk,
requesting such supervisors to submit to the voters of such civil township at the next
township election on a separate ballot, the question whether or not this chapter shall be
of force and effect in such civil township. Such ballot shall be in the following form:
"Yes No for division and partition fence law." If a majority of voters of such
township voting on such proposition shall vote in favor of the division and partition
fence law, then this chapter shall be in force and effect in such township.
43-24-2. Adoption of chapter by civil township supersedes partition fence law
So long as this chapter is operative in any civil township, its provisions shall supersede
the provisions of ss 43-23-1 to 43-23-9, inclusive.
43-24-3. Owners of adjoining land -- Liability for expenses of erecting and
maintaining local option partition fence
Every owner of land is bound to bear one-half of the expense of erecting and maintaining
partition fences between his own and adjoining lands.
43-24-4. Duty of owner of adjoining land to build half of local option partition
fence
Unless otherwise agreed upon each owner of adjoining lands shall build that half of the
fence which shall be upon his right hand when he stands upon his own land and faces the
line upon which the proposed fence is to be built.
43-24-5. Fence upon which owners of adjoining lands agree is a legal fence
Any fence upon which the owners of such adjoining lands may agree, shall be a legal fence.
43-24-6. Legal local option partition fence -- Disagreement of owners of adjoining
lands as to sort of fence -- Definition
When such owners do not agree upon a different sort of fence, a legal partition fence
shall consist of sound posts at least six and one-half feet long and four inches in
diameter, or standard steel posts, and firmly set at least two feet in the earth and not
over twenty feet apart. Such posts shall be firmly braced at ends, corners, and gateways
or openings, to prevent sagging, and upon them shall be firmly stretched and securely
attached to each a woven-wire fence thirty-two inches high, the bottom of which shall be
firmly stretched even with the ground, which woven-wire fence shall be of eight bars, with
six inch stays, and wire to be not smaller than number ten or number thirteen wire; above
such woven-wire fence shall be firmly stretched and securely attached to each post at
least two strands of ordinary commercial barbed fencing wire, the lowest strand to be four
inches from the top of such woven-wire fence and the upper strand to be sixteen inches
from the top of such woven-wire fence.
43-24-7. Neglect or refusal to erect half of local option partition fence --
Enforcement by adjoining landowner -- Service of notice and demand
If any owner of any land neglects or refuses to so erect and maintain one-half of a legal
fence on the lines separating his land
from adjoining land, the owner of the adjoining land may serve upon such delinquent owner
a notice in writing, demanding that the delinquent owner shall erect or repair, as the
case may be, a legal fence along one-half of such line, describing it, within thirty days
from the date of the service of the notice and demand upon him.
43-24-8. Aggrieved owner of adjoining land -- Erection or repair of local option
fence after notice and demand on delinquent owner -- Recovery of costs and damages
If the delinquent owner so served with notice fails or refuses to erect or repair such
partition fence within the time specified in s 43-24-7, the aggrieved owner of such
adjoining land may erect or repair such partition fence, and may recover the cost of
erecting or repairing the partition fence in a civil action and, in addition, recover an
amount to be determined by the court as compensation for the time spent by the aggrieved
owner.
43-24-9. Erection of local option partition fence not required when earth is
frozen
Such delinquent owner shall not be required to erect such partition fence at any season
when the earth is frozen.
43-24-10. Judgment for construction or repair of local option partition fence is
lien upon land of delinquent owner
The judgment entered for construction or repair of a partition fence shall be a lien upon
the land of the delinquent owner for which it was constructed, superior to all other liens
thereupon except taxes.
49-16A-91. Fenced lands -- Duty of railroad to fence along right-of-way -- Type
of fence -- Maintenance
If the owner of a tract of land abutting on a road within this state plans to inclose the
tract and constructs a good and sufficient fence about the tract on all sides except
along the side abutting the road, the railroad shall supply the landowner with the
materials needed to construct a fence not less than four and one-half feet high. If the
owner incloses a tract of land with a woven wire fence with wires crossing each other
close enough to keep sheep and hogs confined, the railroad shall supply the landowner with
the materials needed to construct a like fence along its right- of-way on the side of the
tract so far as it extends along the road. The railroad shall maintain or supply the
materials to maintain the fence in good repair and condition until released by the owner
of the tract, or until the owner of the tract ceases to maintain his portion of the fence
in good repair and condition for one year.
49-16A-92. Notice to railroad to erect fence -- Contents of notice -- Time for
compliance
If the owner of a tract of land has completed his portion of the fence around the proposed
inclosure, he shall give written notice of its completion to the railroad on whose road
the tract is situated, by service on the railroad describing in the notice the situation
of the tract and the appropriate number of acres to be inclosed and the length of the
fence required along the line of the railroad to complete the proposed inclosure. The
railroad shall supply the materials needed to construct and complete its portion of the
fence within forty-five days after the service of the notice.
49-16A-93. Fencing right-of-way -- Noncompliance by railroad -- Construction by
owner -- Liability of railroad
If a railroad neglects or refuses to comply with the requirements of ss 49-16A-91 and
49-16A-92, the owner of the tract may construct or repair the fence along the road, and
the railroad is liable to the owner for an amount not exceeding the actual cost of all
materials used in the construction or repair of the fence of like construction but
excluding all cost of labor, which may be recovered in a civil action. The railroad is
also liable for all damages accruing by reason of its neglect or refusal. However, a
railroad is not required to build fences nor be liable for any damages for refusal to
build fences when the earth is frozen.
Reviewed by AAHS in December 2001.
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