University of Vermont AAHS

South Dakota Livestock Laws

 

SOUTH DAKOTA CODIFIED LAWS
TITLE 31. HIGHWAYS AND BRIDGES
CHAPTER 31-25. FENCES, CATTLE WAYS AND LIVESTOCK GUARDS

 

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.

 

TITLE 40. ANIMALS AND LIVESTOCK
CHAPTER 40-28. DAMAGE BY ANIMALS TRESPASSING OR RUNNING AT LARGE

 

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.

 

Title 43 Property
Chapter 43-17. Water Boundaries and Riparian Lands

 

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.

 

TITLE 43. PROPERTY
CHAPTER 43-23. PARTITION FENCES

 

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.

 

TITLE 43. PROPERTY
CHAPTER 43-24. LOCAL OPTION WOVEN-WIRE FENCES

 

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.

 

TITLE 49. PUBLIC UTILITIES AND CARRIERS
CHAPTER 49-16A. INTRASTATE RAILROAD REGULATION

 

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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