44-8-101. Land in cultivation sufficiently fenced
Every planter shall make and keep a sufficient fence, of ordinarily sound and substantial material, around the planter's land in cultivation, and so close, for at least two and one-half feet (2 1/2') from the surface of the earth, as to prevent hogs large enough to do damage from passing through the same.
44-8-102 Various materials constituting sufficient fencing -- Rules.
(a) The following types of fence are deemed sufficient:
(1) Stone. -- A substantial stone fence or wall, three and one-half feet (3 1/2') high;
(2) Plank and post and rail. -- A post and plank or post and rail fence four feet (4') high;
(3) Rail. -- A common worm or crooked rail fence five feet (5') high;
(4) Bank. -- Every bank or other means used as a fence, or part of a fence, equivalent, as an obstruction to stock, to either of the three (3) classes of fence above named;
(5) Wire. -- Any enclosure made by nailing fast two (2) sound planks, each not less than six inches (6") wide, to posts set firmly in the ground not more than eight feet (8') apart, the bottom plank to be not more than three inches (3") from the ground, and the second plank from the ground not more than four inches (4") from the first; and then by stretching not less than four (4) strands of barbed wire tightly between the posts above the planks, the topmost wire to be not less than four and one-half feet (4 1/2') from the ground, and the bottom wire to be four inches (4") from the topmost plank; the next wire from the bottom one to be nine inches (9") from the topmost plank, and the third wire from the bottom to be twenty-one inches (21") from the topmost plank, the above distance as nearly as practicable;
(6) Osage orange. -- Bois d' arc or Osage orange fences, wholly of bois d' arc or Osage orange, or in part of bois d' arc or Osage orange, and in part of wire or other material, at least four feet (4') high, and at least eighteen inches (18") across the top and sufficiently close to prevent stock of all kinds from passing through; and
(7) Wire. -- Any enclosure made by nine (9) smooth, horizontal wires, the bottom and top or first and ninth of which are to be standard number nine (9), and the other seven (7) standard number eleven (11) wires; the first wire to be placed upon or very near the ground; the second three and one-half inches (3 1/2") from the first; the third three and one-half inches (3 1/2") from the second; the fourth four inches (4") from the third; the fifth four inches (4") from the fourth; the sixth six inches (6") from the fifth; the seventh eight inches (8") from the sixth; the eighth ten inches (10") from the seventh; the ninth ten inches (10") from the eighth. The vertical stays or pickets are to be two feet (2') apart between the first or ground wire and the fifth, and from the fifth to the top or ninth wire four feet (4') apart. The posts are to be one (1) rod apart and well stayed at the ends of the fence, so as to keep the fence from sagging.
(b) In addition to subsection (a), sufficient fencing shall include:
(1) A fence constructed from synthetic materials commonly sold for fencing, if such materials are installed pursuant to generally acceptable standards, to confine or restrict the movement of farm animals; and
(2) Systems or devices based on technology generally accepted as appropriate for the confinement or restriction of farm animals.
(c) The commissioner of agriculture may adopt rules and regulations regarding sufficient fencing consistent with this part to provide greater specificity as to the requirements of sufficient fencing. The absence of any such rule or regulation shall not affect the validity or applicability of this section or any section of this part as such sections relate to what constitutes sufficient fencing.
44-8-103. Horses, cattle, and mules sufficiently fenced
The following shall be sufficient and be deemed a lawful fence only as to horses, cattle, and mules: any enclosure made by stretching not less than five (5) strands of barbed wire tightly between posts firmly set in the ground, or between growing trees and posts firmly set in the ground, not more than twenty feet (20') apart; the topmost wire not less than four and one-half feet (4 1/2') from the ground, the bottom wire not less than six inches (6"), and the next to the bottom wire not less than fifteen inches (15") from the ground.
44-8-104. Paling and wire fence lawful
The paling and wire fence is made one (1) of the lawful fences; provided, the same be built upon good-sized, substantial posts, set firmly in the ground, not more than twelve feet (12') apart; and provided further, that there be firmly fastened upon these posts two (2) sets double-strand wire, one (1) near the top, the other near the bottom, into which there is woven substantial sawed or split palings, not less than three feet (3') long, with one (1) barbed wire one foot (1') above the paling, or four feet (4') without the wire, and not more than three inches (3") apart; but nothing in this section shall be construed as repealing any statute providing for lawful fences in this state.
44-8-105. Three-wire, plank, or slat fence a lawful fence
In addition, the following shall also be a lawful fence, to wit: a fence built on good-sized, substantial posts, set firmly in the ground not more than nine feet (9') apart. Such fence shall consist of three (3) barbed wires, or three (3) planks, or three (3) slats running horizontally and fastened firmly to the posts, the first to be eighteen inches (18") from the ground, and the second and third eighteen inches (18") from the first and second respectively, counting from the center of each. Such fence may consist entirely of wire strands, or of planks or of slats; or it may be composed of a wire, plank, and slat.
44-8-106. Damages for trespass -- Determination -- Recovery
(a) When any trespass shall have been committed by horses, cattle, hogs, goats, sheep, or other stock upon the cleared and cultivated ground of any person having the same fenced, as is described in ss 44-8-101 -- 44-8-105, the person may complain to a judge of the court of general sessions of the county, who shall cause two (2) discreet and impartial freeholders to be summoned, and with them shall view and examine, on oath of the freeholders to do justice, whether the complainant's fence be a lawful fence, and what damage, if any, the person has sustained by the trespass, and certify the result of such view and examination under the hands and seals of the judge and freeholders, which certificate the judge shall deliver to the complainant. The certificate shall be prima facie evidence of the plaintiff's demand.
(b) The owner of the stock shall be entitled to a hearing, but, if not successful, shall make full satisfaction for the trespass and damages to the party injured, to be recovered as such damages and costs, subject to the right of appeal of either party. To secure the payment of any judgment, execution may be levied upon the stock committing the trespass; and after ten (10) days' notice such stock may be sold to satisfy the judgment so recovered.
44-8-107. Defense of insufficiency of fence
If it appears that the fence is insufficient, the owner of the animals shall not be liable to make satisfaction for the damages.
44-8-108. Injury to animals
If any person, whose fence is adjudged insufficient, maims, wounds, or kills any such animal, or causes or procures it to be done, such person shall make full satisfaction to the person injured for all damages sustained, to be recovered before any tribunal having cognizance thereof.
44-8-109. Notoriously mischievous stock to be confined
All persons owning notoriously mischievous stock, known to be in the habit of throwing down or jumping fences, shall be required to keep the same confined upon their own premises.
44-8-110. Liability of owners of notoriously mischievous stock
The owners of such stock shall be liable for all damages done by the same to enclosure or crops of others.
44-8-111. Stock liable to execution
a) To secure the payment of such damage and costs, executions may be levied upon the stock committing the trespass.
(b) After ten (10) days' notice, such stock may be sold to pay such amount of damages and costs.
44-8-112. Pulling and leaving down fence, or opening and leaving open gate, a misdemeanor
Any person who pulls down the fence of another and leaves the same down, without permission of the owner, or opens and leaves open the gate of another, without such permission, commits a Class C misdemeanor.
44-8-201. Partition fence defined -- Joining fences
Partition fences, within the meaning of this part, are fences erected on the line between lands owned by different persons; but no owner of land is compelled to allow a neighbor to join a fence exclusively on such person's own land.
44-8-202. Fences to be erected and maintained at joint expense
Partition fences may be erected and repaired at the expense, jointly, of the occupants or owners; or if a person makes a fence a partition fence, by joining to it or using it as such, such person shall pay to the person erecting it such person's proportion of the expense.
44-8-203. Damages for failure to maintain fence
If either of the persons having a joint or partition fence refuses or neglects to keep such person's part of the fence in good repair, such person shall be liable for all damages the other may sustain to enclosures or crops, by trespassing stock, in consequence of such refusal or neglect.
44-8-204. Pay for fence
If the parties cannot agree as to the amount to be paid to the owner erecting or repairing a partition fence as provided in ss 44-8-202 and 44-8-206, on application by either to a judge of the court of general sessions, the judge shall issue an order to three (3) disinterested freeholders, not related to either of the parties, to examine such fence, and to ascertain the amount to be paid to the owner erecting or repairing it.
44-8-205. Judgment and execution
The freeholders, first taking an oath before the judge to discharge their duty fairly and impartially, on a day to be by them appointed, of which both parties shall have notice, shall examine the fence, and report to the judge, in writing, the amount to be paid the person erecting it; whereupon, unless the money be paid within ten (10) days thereafter, the judge shall enter up judgment (subject to appeal) and issue execution for the same.
44-8-206. Rebuilding or repairing fences
The like proceedings may be had in cases where partition fences are rebuilt or repaired by either of the joint proprietors, the jury of view being judges, in the first instance, of the necessity or advisability of the improvement.
44-8-207. Fees of court and fence reviewers
The court is entitled to fifty cents (50~) for issuing the order, and the fence reviewers to one dollar ($1.00) each, one half ( 1/2) of which is to be paid by each party; and, if not paid within ten (10) days after the report, execution shall issue for such amount.
44-8-208. Fences not removed without six months' notice
No partition fence, or any part of such fence, shall be removed without the mutual consent of the owners, unless the party desiring to remove the fence, or part thereof, shall first give six (6) months' notice in writing to the other owner of such owner's intention to remove the fence. After the expiration of the time of the notice, the party may remove the fence, or part thereof.
44-8-209. Removing fence without notice a misdemeanor -- Damages
Any person who removes a partition fence, or any part thereof, without first giving the notice required by s 44-8- 208, commits a Class C misdemeanor, and moreover is liable to the person injured for any damages sustained by reason of the removal.
44-8-210 Disclaiming responsibility for fence erection -- Definitions.
(a) In cases when the property on one (1) side of an existing or proposed partition fence is agricultural land, and the property on the other side is non-agricultural land, the owner of the non-agricultural land may disclaim any responsibility for the erection or maintenance of a partition fence pursuant to § 44-8-202. Such disclaimer shall be in writing, executed by the non- agricultural land owner and mailed to the owner of the agricultural land by registered mail, return receipt requested, or sent by some other means pursuant to which a written verification of receipt is obtained. The disclaimer shall be effective on the date of receipt by the owner of the agricultural land.
(b) Delivery of the disclaimer as described in subsection (a) shall have the effect of:
(1) Relieving the owner of the non-agricultural land of any responsibility to erect or maintain a partition fence pursuant to § 44-8-202; and
(2) Releasing the owner of the agricultural land from any claims by the owner of the non-agricultural land arising out of the non-existence or condition of a partition fence.
(c) As used in this section, unless the context otherwise requires:
(1) "Agricultural land" has the same meaning as set forth in § 67-5-1004; and
(2) "Non-agricultural land" means land:
(A) That is not agricultural land;
(B) That is the site of a residence; and
(C) On which the owner does not keep livestock.
(d)(1) If property that meets the definition of non-agricultural land at the time of delivery of a disclaimer as described in subsection (a) subsequently ceases to qualify as non-agricultural land, then the disclaimer, and all effects of the disclaimer as described in subsection (b), shall cease to be effective as of the date property ceases to be non-agricultural property.
(2) If a fence is erected by the owner of agricultural land during a period when a disclaimer as described in subsection (a) is in effect, and if the land owned by the disclaiming party subsequently ceases to be qualified as non- agricultural land, then the owner of the non-agricultural land shall reimburse the owner of the agricultural land a proportionate share of the cost of erecting the fence. If the parties cannot agree as to the amount to be paid to the owner of the agricultural land, the process described in § 44-8-204 shall be applicable.
44-8-301. Damages for failure to keep up fences, or for trespass
It is lawful for two (2) or more owners of adjoining farms to enclose the same under one (1) common fence or enclosure, such to be kept up to the standard of a lawful fence by each owner upon such owner's own land, or in such manner and proportion as the owners may agree upon in writing. In the absence of such agreement, the owner of any of the land embraced in such common fence shall be liable to the owners of the other lands and their tenants for all damages to their lands, pastures, fruit trees, crops, or vegetables, occasioned by the failure or neglect of such other owner to keep and maintain the common fence on such owner's land up to the standard of a lawful fence, or by the owner's own stock or that of the owner's tenants trespassing beyond the owner's own land within the common enclosure.
44-8-302. Common enclosure of lands under written agreements -- Specifications
It is lawful to prescribe, in such agreement, the means and method by which such common enclosure shall be constructed and maintained, regulations for the use and enjoyment by each owner of the lands embraced therein, the penalties to be imposed upon each for violations and how the same shall be imposed, the mode of assessment of damages occasioned by trespassing stock of the parties to the agreement, and the length of time it shall continue in force; it may also provide for impounding, feeding, and caring for trespassing stock of the parties to the agreement found within the common enclosure, and for a lien upon such stock to secure the penalties and damages assessed against the owner on that account, and for the enforcement of same by sale; and all such provisions, not in violation of any law, shall be binding upon all parties to such agreement.
44-8-303. Force and binding power of agreement
Any such agreement shall continue in force and be binding upon all the parties thereto and their heirs and devisees, for the period therein prescribed, unless rescinded by mutual consent; but the same may be modified or amended in writing signed by all the parties, at any time; and after the expiration of the period prescribed, such agreement shall be deemed continued by unanimous consent, unless between November 1 and January 1, some party thereto or the party's heir or devisee shall give notice in writing to all the other parties thereto, resident in the county, of the party's intention to terminate the same, in which event such agreement shall terminate at the expiration of ninety (90) days from the service of the notice.
44-8-304. Agreement if registered is binding on purchaser, his heirs and assigns
(a) The agreement may be acknowledged and registered in the county or counties wherein the lands and any part thereof are situated.
(b) In case of registration, such agreement shall be binding upon any purchaser of any of the lands embraced in the common enclosure, and the purchaser's heirs and assigns, in the same manner and to the same extent as if the purchaser had been an original party to the same.
44-8-305. Liability of persons not parties to agreement for trespass by stock
Any person not a party to such agreement, whose stock shall trespass upon the common enclosure, shall be liable to the party injured for all damages which such person may thereby sustain, and such party, so damaged, shall have all the rights and liens given by law to persons damaged by stock trespassing upon enclosures which are not common; provided, the common enclosure be at the time a lawful enclosure or fence.
44-8-401. Livestock not to run at large -- Punishment
(a) It is unlawful for the owners of any livestock, as the same are commonly known and defined, to willfully allow the same to run at large in this state.
(b) A violation of this section is a Class C misdemeanor.
44-8-402. Lien for damages
For any damages occasioned by stock running at large in violation of s 44-8-401, the person so damaged shall have a lien upon the stock, which lien shall be enforced by attachment before a judge of the court of general sessions in the same manner and to the same extent as other liens are enforced.
44-8-403. Penalty for stallion or jackass running at large
No person shall suffer any stallion or jackass over fifteen (15) months old to run at large, under fine of not less than five dollars ($5.00) nor more than twenty-five dollars ($25.00), the fine to be paid into the county treasury.
44-8-404. Animal to be advertised
Such animal running at large may be brought before a judge of the court of general sessions of the county, who shall cause the same to be advertised, with a description of its marks, color, size, and age, and the name and residence of the taker-up, in three (3) public places in the county, one (1) of them being the courthouse door.
44-8-405. Gelding unclaimed animal -- Costs
If such animal is not claimed within three (3) months after being taken up, and the fees and expenses paid as herein provided, the court may order the animal to be gelded by some person competent to perform the operation, at the risk and expense of the owner.
44-8-406. Treated as strays when owner unknown or residing out of county
If the owner is unknown, or resides out of the county, the same course shall be pursued by the taker-up in regard to such animals as in the case of other estrays.
44-8-407. Compensation to taker-up
The taker-up is entitled to receive five dollars ($5.00) from the owner, and a reasonable compensation for keeping, to be determined as in the case of estrays, and the court to receive one dollar ($1.00).
65-6-301. Cattle guards on unfenced track
Each railroad company whose unfenced track passes through a field or enclosure is required to place a good and sufficient cattle guard or stops at the points of entering such field or enclosure, and keep the same in good repair.
65-6-302. Enlargement of unfenced area
In case a field or enclosure through which such unfenced railroad track passes shall be enlarged or extended, or the owner of the land over which such unfenced track passes shall open a field so as to embrace the track of such railroad, such railroad company is required to place good and sufficient cattle guards or stops at the margin of such enclosure or fields, and keep the same in repair; provided, that such owner shall give the nearest or most accessible agent of such company thirty (30) days' notice of such change.
65-6-303. Penalty for noncompliance
Any railroad company neglecting or refusing to comply with the provisions of this part shall be liable for all damages sustained by anyone by reason of such neglect or refusal; and, in order for the injured party to recover all damages such person sustained, it shall be only necessary for such person to prove such neglect or refusal, and the amount of such damages; provided, that such company shall not be liable if it shall be shown that the opening of such field was made capriciously and with intent to annoy and molest such company.
65-12-114. Standard of care required when livestock on tracks
Whenever livestock appears on the tracks as an obstruction ahead of a railroad train, it shall be the duty of the engineer, or the person in charge of the operation of the train, to blow the alarm whistle and apply the brakes, in order to prevent, if reasonably possible, the striking of the livestock.
Amended in 1999.
Reviewed by AAHS in December 2001.
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