344.01 Fence viewers
Supervisors in their respective towns, city council members in their respective wards, commissioners of public works in cities having a commission form of government, and city trustees in statutory cities are fence viewers.
A town board may, by resolution, exempt adjoining owners or occupants from this chapter when their land considered together is less than 20 acres.
344.02 Kinds of partition fences
Subdivision 1. Legal and sufficient fences. The following are legal and sufficient fences:
(a) fences consisting of at least 32-inch woven wire and two barbed wires firmly fastened to well-set posts not more than one rod apart, the first barbed wire being above and not more than four inches from the woven wire and the second barbed wire being above and not more than eight inches from the first wire;
(b) fences consisting of at least 40-inch woven wire and one barbed wire firmly fastened to well-set posts not more than one rod apart, the barbed wire being above and not more than four inches from the woven wire;
(c) fences consisting of woven wire at least 48 inches in height, and one barbed wire not more than four inches above the woven wire firmly fastened to well-set posts not more than one rod apart;
(d) fences consisting of at least four barbed wires with at least 40 barbs to the rod, the wires firmly fastened to posts not more than one rod apart, the top wire not more than 48 inches high and the bottom wire 12 to 16 inches from the ground; and
(e) fences consisting of rails, timbers, wires, boards, stone walls, or any combination of those materials, or streams, lakes, ditches, or hedges, which are considered by the fence viewers as equivalent to any of the fences listed in this subdivision.
Subd. 2. Determination of kind of fence. If adjoining land owners disagree as to the kind of fence to be built on any division line, the matter must be referred to the fence viewers, who shall determine what kind of fence should be built on the line and order it built.
Subd. 3. Special case. If the lands of two persons adjoin and the land of one is enclosed by a woven wire fence on all sides except the side forming a division line between the lands, each person shall erect and maintain a fence along one-half the total length of the division line. The fences must be similar in character and quality.
344.03 Expense; equal shares
Subdivision 1. Adjoining owners. If all or a part of adjoining Minnesota land is improved and used, and one or both of the owners of the land desires the land to be partly or totally fenced, the land owners or occupants shall build and maintain a partition fence between their lands in equal shares. The requirement in this section and the procedures in this chapter apply to the department of natural resources when it owns land adjoining privately owned land subject to this section and chapter and the landowner desires the land permanently fenced for the purpose of restraining livestock.
Subd. 2. Repealed, 1989 c 335 art 4 s 109; 1Sp1989 c 2 s 8
344.04 Failure to build or repair; rights of complainant
If a person fails to build, repair, or rebuild a partition fence which the person is required to build or maintain, the affected party may complain to the fence viewers. The fence viewers shall give notice to the parties and examine the fence or look into the need for a proposed fence. If they determine that an existing fence is insufficient or a new fence is necessary, they shall notify the delinquent owner or occupant in writing to that effect and order the owner or occupant to build, repair, or rebuild the fence within a reasonable time. If the delinquent fails to comply with the order, the complainant may build, repair, or rebuild the fence and obtain reimbursement pursuant to section 344.05.
344.05 Repair costs recoverable
If a complainant builds, repairs, or rebuilds a fence according to section 344.04 and the fence viewers consider it sufficient, they shall give the occupants reasonable notice and an opportunity to be heard, determine the cost of the fence or repair, and give to the complainant who built, repaired, or rebuilt the fence a signed certificate of their decision and of the cost of the fence or repair and the viewers' fees. The complainant may demand, either of the owner or the occupant of the adjoining land where the fence was wanting or deficient, the viewers' fees and double the amount of the ascertained expense. If the owner or occupant does not pay that amount within one month after demand, the complainant may recover the amount, with interest, in a civil action.
344.06 Controversy; decision by fence viewers
If a controversy arises concerning the rights in partition fences of the respective occupants or their obligation to maintain the fences, either party may apply to the fence viewers, who, after due notice to the parties, may assign to each a share in the fence and direct the time within which the fence must be erected or repaired. The assignment may be filed for record with the county recorder after which it is binding upon the parties and upon all succeeding occupants of the lands.
344.07 Failure to erect or maintain
If a party fails to erect or maintain the part of a fence assigned under section 344.06, the aggrieved party may erect and maintain the fence, and be entitled to double the cost of the construction and maintenance as ascertained and recovered in section 344.05 in the case of repairs.
344.08 Recorded division; binding on heirs and assigns
All divisions of fences which are made by fence viewers under this chapter, or which are made by owners of adjoining lands, in writing, witnessed by two witnesses, signed and acknowledged by the parties, and filed for record with the county recorder, are valid against the parties to the divisions and their heirs and assigns.
344.09 Party erecting more than share
If there is a controversy between occupants of adjoining lands as to their respective rights in any partition fence and the fence viewers decide that either occupant has voluntarily erected or otherwise become the proprietor of more than that occupant's just share of the fence before a complaint was made, the other occupant shall pay for the share of the fence assigned to the other to repair and maintain. The value of the fence must be ascertained and recovered pursuant to section 344.05.
344.10 Lands bounded by stream
If lands of different persons must be fenced and are bounded upon or divided by a stream or pond which, in the judgment of the fence viewers, is not in itself a sufficient fence, and if the viewers determine that it is impracticable, without unreasonable expense, for a partition fence to be made on the waters at the true boundary line, and if the occupant on either side fails to join with the occupant on the other side in making a partition fence on one side or the other, then the fence viewers, on application of either party, shall view the stream or pond, and, after giving due notice to the parties, determine, in writing, on which side of the stream or pond the fence must be erected and maintained, or whether partly on one side and partly on the other. If either party fails to build or maintain the assigned part of the fence according to the viewers' determination, the other party may build and maintain the fence, and the delinquent party must pay the charges and costs provided for in other cases in this chapter.
344.11 Lands occupied in common
If one of the occupants of enclosed lands belonging to different persons in severalty, which have been occupied by them in common without a partition fence, desires that the part occupied by that person be occupied in severalty, and the other party fails to divide the land or to build a fence on part of the land when it has been divided, the party desiring it may have the land divided and assigned by the fence viewers in the manner provided in this chapter.
344.12 Viewers to fix time for building
If fence viewers have divided land and assigned fence responsibilities, they may set in writing a reasonable time for building the fence, having regard to the season of the year. If either party fails to build part of the fence within the time assigned, the other party may, after completing part of the fence, build the other part, and recover the viewers' fees and double the cost of building the other part, as determined pursuant to this chapter.
344.13 Lands first enclosed
When unenclosed lands are afterwards enclosed, the owner or occupant of the lands shall pay one-half of the value of each partition fence extending upon the line between that person's land and the enclosure of any other owner or occupant. If the parties do not agree, the value must be ascertained by the fence viewers and stated in writing. If an owner or occupant fails to pay within 60 days after the value is ascertained and a demand made, the owner of the fence may recover the value and the cost of ascertaining it in a civil action.
344.14 Viewers when fence on town line
If a partition fence is to be built on a line between towns, or partly in one town and partly in another, two supervisors, one from each town, shall be the fence viewers.
344.16 Division or recorded agreement runs with the land
If the line upon which a partition fence is to be built between unimproved lands has been divided by the fence viewers or by the recorded agreement of the parties, the several landowners, and their heirs and assigns forever, shall erect and maintain fences in accordance with the divisions.
344.17 Failure of viewer to perform duty; penalty
A fence viewer who unreasonably fails to perform a duty required by this chapter shall forfeit $ 5 to the town or city and be liable to the injured party for all resulting damages.
344.18 Compensation of viewers
Fence viewers must be paid for their services by the person employing them at the rate of $ 15 each for each day's employment. $ 60 must be deposited with the town or city treasurer before the service is performed. Upon completion of the service, any of the $ 60 not spent to compensate the fence viewers must be returned to the depositor.
344.19 Viewers in counties not organized into towns
In counties not organized into towns, the county commissioners are fence viewers and are governed by this chapter, except that county commissioners shall not receive the per diem provided in section 344.18 but may be paid a per diem pursuant to section 375.055, subdivision 1, and their necessary expenses, including mileage in accordance with section 471.665.
344.20 Town option
If eight or more freeholders in a town petition the town board for a vote on a partition fence policy, the town board may adopt its own policy and procedures for dealing with partition fences, including enforcement procedures. The policy must be approved by the electors of the town at an annual or special town meeting, in which case this chapter does not apply in that town.
This chapter applies to any partition fence lying on the boundary between a town which has adopted its own partition fence policy and any other political subdivision unless the other political subdivision is a town which has adopted a similar policy.
346.01. Who may take up
No person shall take up any estray, except horses or mules, unless such estray shall be found on lands owned or occupied by the person in the town wherein the person resides.
346.02. Finder to give notice; penalty
A person who finds an estray and knows who owns it shall notify the owner within seven days after finding the estray and request the owner to pay all reasonable charges and take such estray away. A finder who does not know who owns the estray shall within ten days file a notice with the town clerk. The clerk shall transmit a copy thereof to the county recorder, who shall record the same in a book designated "estray book." The finder shall give posted notice of the finding of the estray in said town. The notice shall briefly describe the estray, giving its marks, natural and artificial, as nearly as practicable, naming the residence of the finder, and specifying the town, section, and time when taken up. For failure to give such notice, the finder shall be liable to the owner of the estray in double the amount of damages sustained by the owner thereby.
Every finder of an estray of the value of $10 or more at the time of taking up shall, within one month, have it appraised by a county or municipal judge. The certificate of appraisement shall be filed with the town clerk. The finder shall pay 50 cents for the certificate and six cents per mile for each mile necessarily traveled to make the appraisal.
346.04. Charges for keeping
The person entitled to the possession of any estray, at any time within one year after notice is filed with the town clerk, may have it restored upon proving the right to it and paying all lawful charges that occur in relation to it. If the person and the finder cannot agree as to the amount of the charges, or upon what should be allowed for the use of the estray, either party, on notice to the other, may apply to a district court judge to settle the disagreement. The judge may examine witnesses on oath. If any amount is owed to the finder, over the value of the use of the estray, the money, with costs, shall be a lien upon the estray. The costs of the adjudication shall be allocated by the judge.
346.05. Sale of estray
If no claimant for such estray shall cause its return to the claimant as before provided, and if such estray shall not have been appraised at more than $10, the finder shall thereupon become the owner thereof; but, if such appraised value exceeds $10, the estray shall be sold at public auction by any constable of the county on the request of the finder. Notice thereof shall be given and the sale conducted and the same fees allowed as in case of sales upon justice's execution. The finder may bid at such sale, and at the time thereof shall deliver to such officer a statement, in writing, of the finder's charges. After deducting such charges, if reasonable, and the costs of sale, the officer shall deposit the remainder of the money, together with the written statement and a statement of the costs of sale, with the county treasurer, taking the treasurer's receipt therefor. If the finder of any such estray shall fail to cause the sale to be made, the finder shall pay to the town the value of the estray, to be recovered in an action by the town.
346.06. Money, how disposed of
If the money so deposited be not claimed by the former owner of the estray within one year after such sale, the same shall be paid by the county treasurer into the public school fund.
346.07. Removal of estray; neglect to give notice
If any person, without the consent of the finder, shall take away any estray taken up pursuant to this chapter, without first paying all lawful charges incurred in relation to the same, the person shall be liable to the finder for the value of the estray; and, if any person taking up the estray shall neglect to comply with the provisions of this chapter, that person shall be precluded from acquiring any right of property in such estray and from receiving any charges or compensation in relation thereto.
346.08. Distraint of animals doing damage
The owner or occupant of lands may distrain any beast doing damage thereon, either while upon the premises or upon immediate pursuit of such beast escaping therefrom, and before returning to the enclosure or immediate care of the owner or keeper, and keep such beast upon the distrainer's premises, or in some public ground in the distrainer's town, until the damages shall be appraised, as hereinafter provided.
346.09. Animals doing damage
Subdivision 1. Notice; appraisers. The person distraining shall give notice to the owner of the beast, if known to the distrainer, within 24 hours if the owner resides in the same town, and within 48 hours if the owner resides in another town in the same county, Sundays excepted. The notice shall specify the time when and the place where distrained, the number of beasts, and the place of their detention, and that at a time and place stated therein, which shall not be less than 12 hours after the service of the notice, nor more than three days after the distress, the distrainer will apply to a designated county or municipal judge of the county for the appointment of appraisers to appraise the damages. If the owner is unknown or does not reside in the county, the distraining person shall apply for the appointment of appraisers within 24 hours after the distress without notice. After the application, the judge shall appoint three disinterested residents of the town to appraise the damages.
Subd. 2. Owners' right to appraisal. If the distraining person fails to apply for appointment of appraisers within the time designated in subdivision 1, the owner of the beasts distrained may in the same manner apply for appointment of appraisers.
346.10. Appraisement; procedure
The appraisers, immediately after their appointment, shall be sworn and view the damage done. They may take the evidence of any witnesses of the facts and circumstances necessary to enable them to ascertain the extent of such damage, and the insufficiency of any line fence on the premises where the damage was done, if any dispute shall arise touching the same, and may administer oaths to such witnesses. They shall certify, under their hands, the amount of such damages, and the costs of keeping such beasts to that time, with their fees, not exceeding $1 per day each; and their determination as to such damages, and the sufficiency of such fence, if in dispute, shall be conclusive.
346.11. Tender by owner; effect
At any time before proceedings are begun for such appraisement, or before action is brought for the recovery of damages, the owner or the owner's agent may tender, to the person aggrieved by the depredation of such animal, the amount of damages which such owner may believe has been sustained. If the tender be accepted, no further damages shall be recovered in any way; if refused, and the person aggrieved fails to substantiate or recover as damages a sum greater than that tendered, no costs, disbursements, or expenses shall be collected or recovered in the aggrieved person's favor, but the aggrieved person shall pay the costs and disbursements of such owner.
Unless the damages so ascertained, together with the fees of the appraisers and justice, shall be paid within 24 hours after appraisal, the person distraining shall cause the beasts to be put into the nearest pound of the same town, if there be one; and, if not, then in some secure enclosure therein, where the same shall remain until sold, as hereinafter directed, or until the damages, fees, and the costs of keeping the beasts after appraisal shall be paid, or until otherwise seized or discharged according to law. From the time of seizure until discharged or sold, such beasts shall be furnished with suitable food, the expense of which, after the appraisal, shall be added thereto as additional costs; and, if the beasts be put in a pound, the certificate of appraisal shall be delivered to the keeper thereof.
346.13. Poundmaster; custody; sale; time; notice
The poundmaster shall receive and keep in the public pound any beasts so delivered to the poundmaster; and, unless seized or discharged according to law within six days, shall sell the same or as many as shall be necessary to pay such damages, fees, and costs, at public auction, giving three days posted notice thereof, and posting one such notice on the pound.
346.14. Sale of animal not impounded
If, by reason of there being no pound within such town, such beasts shall be kept within some other enclosure, and shall not be discharged therefrom in the manner hereinbefore provided within six days after being placed therein, the sheriff or any constable of the county shall sell such beasts, or so many as may be necessary to pay such damages, fees, and costs of keeping, upon the same notice as is required in sales of personal property, on execution.
The purchaser of any animal sold under sections 346.13 and 346.14 shall keep the same at least two months, during which time the owner may redeem such animal by paying all costs and charges of keeping, and the amount paid therefor at the sale, with interest thereon at 12 percent per annum
346.16. Running at large; defined; prohibited; treble damages
The herding of any animal of the species of cattle, horse, ass, mule, sheep, swine, or goat upon any land over the protest and against the will of the owner shall be deemed a running at large.
It shall be unlawful for any owner or any person having the control of any such animal to permit the same to run at large in the state.
Any person who shall knowingly permit the running at large of any such domestic animal shall be liable to the person aggrieved for treble damages sustained by the aggrieved person, to be recovered in a civil action brought for that purpose.
346.17. Proceeds of sale
From the proceeds of such sale the person making it shall retain sales fees, which shall be the same as are allowed constables on execution sales, and the costs of keeping such beasts, and shall pay to the distrainer the damages so certified, with fees of the appraisers and justice; and the surplus, if any, shall be paid to the owner of the beasts, if known. If no one appears at the time of the sale, or within one week thereafter, who claims such surplus, the same shall be paid to the treasurer of the town, to be paid to the owner of the beasts, if claimed within one year after the distress. If not applied for within one year, the money shall be applied to the use of the town.
346.18. Taking distrained beasts a misdemeanor
If any person, without authority of law, and without first paying the damages and costs, takes any distrained beast out of the possession of the person making the distress, or that of the sheriff, constable, or poundmaster, as the case may be, without the possessor's consent, the taker shall be guilty of a misdemeanor, and shall also be liable to the person injured in double the amount of the damage done by such beasts.
346.19. Certain male animals or breachy cattle
Subdivision 1. Running at large; penalty. The owner of any stallion over the age of one year, bull over the age of nine months, boar or ram over the age of three months, or of any breachy cattle, who shall suffer the same to run at large in any town, shall forfeit to such town $5 for each day any such animal shall be so at large. "Run at large" means any animal which is not picketed, confined in a corral or otherwise restricted by a properly constructed and maintained legal fence as defined by Minnesota Statutes 1945, section 344.02.
Subd. 2. Owner notified; proceedings; sale. Upon notice that any such animal is running at large, the chair of the town board shall forthwith notify its owner, and, if the owner does not immediately confine such animal, the chair shall cause suit to be brought against the owner, in the name of the town, to recover the forfeiture, and the animal may be sold under execution in such action to pay the forfeiture and costs.
Subd. 3. Disposal of proceeds. After deducting the costs and expenses of suit, all such forfeitures collected shall be paid into the town treasury for the use of the road and bridge fund.
Subd. 4. When owner not found. If unable to find the owner of any such animal, the chair shall cause it to be confined in the public pound, if there be one, and, if not, in some other enclosure, for three days; and, if not then claimed, the chair shall cause it to be sold, at public auction, upon five days' posted notice. From the proceeds of the sale the chair shall deduct the amount of the forfeiture and expenses, and deposit the balance with the town treasurer, which shall be paid to the owner of the animal if applied for within one year. If not so applied for, the same shall be paid into the town treasury for the use of the town.
Subd. 5. Castration; limitation of liability in case of rams. If, after being notified, the owner of any such stallion, bull, boar, or ram shall permit the same to continue or again to run at large, such chair shall forthwith cause the same to be taken up and castrated in the usual manner, and shall have a lien on such animals for the expenses of so doing, and may also recover the amount of such expenses from the owner of the animal in a civil action brought in the name of the town; provided, that any such ram running at large may be castrated without liability for damages by any person among whose sheep he shall be found. Any chair who shall refuse or neglect to perform any of the duties required by this section shall be guilty of a misdemeanor.
Reviewed by AAHS in December 2001.
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