To Fence or Not to Fence: That is the Question
Updated: Apr 3, 2021
This column originally appeared in the March 25, 2014 issue of the Delmarva Farmer newspaper.
Note: This article is not a substitute for the advice of an attorney and should not be viewed as legal advice.
According to the 2007 Census of Ag, Maryland had roughly 5,970 livestock operations and Delaware had roughly 1,372 livestock operations. These livestock operations are asked to co-exist among grain, vegetable, or orchard production, or commercial or residential development. For these livestock producers, a good fence can be one way to be a good neighbor and limit disputes. But who exactly has the duty to build the fence, how costs are allocated, and what standards should a fence be built to?
Delaware and Maryland have adopted a traditional English common law rule of “fence-in.” The fence-in rule requires landowners to fence-in livestock to prevent livestock from damaging neighbors’ properties or be liable for those damages. Landowners without livestock on their property are under no duty to construct a fence to keep livestock off their property; only landowners with livestock would need to construct a fence.
Maryland and Delaware differ on set standards a fence should be constructed to and who pays the construction costs. Maryland has no statute or court decision that defines standards a fence should be built to. Because Maryland has adopted no standards that a fence should built to, a landowner should consider building the fence to a height, number of wires, post distance, and with materials necessary to keep the livestock in.
Maryland also has no statute or court decision requiring construction and maintenance costs to be split between neighboring landowners. Under Maryland’s view, the livestock owner would be required to build the fence and neighboring landowners would not be required to share in the expense of the division fence. Neighboring landowners looking to split maintenance and construction costs could use a fencing agreement, or an agreement on who is to build and maintain a fence. This agreement would need to be in writing and recorded against title of the property to make it binding on future owners (you will probably need an attorney here to ensure the agreement meets all the requirements).
Delaware has defined the standards a fence should be built to. Delaware Code Title 25, § 1301 defines a lawful fence to be constructed of wood, iron, wood, and iron rods or wire, stone, or well set thorn. In New Castle and Kent counties a fence needs to be 4 ½ feet high or 4 feet high and having a ditch within 2 feet of it, and in Sussex County would need to be 4 feet in height to be a lawful fence.” The same section of the Delaware Code allows for the use of any type of barbed wire to fences used to enclose a farm. The Delaware Code also specifies that costs should be shared equally for a division fence by neighboring landowners when both properties are enclosed by a fence. When both properties are not enclosed by a fence, then the burden would be on the livestock owner to build and maintain that division fence, but again a fencing agreement could be used to share construction and maintenance costs.
In Maryland, to be liable for damages the fenced-in livestock must escape through the negligence of the livestock owner. For example, if Greg had erected a fence and does no maintenance on his fence, Greg’s cattle become spooked by lightening, and damage Bobby’s farm Greg maybe liable for the damages to Bobby’s farm. In Maryland, the livestock owner’s negligence will be determined by a court and the court will award the damages.
In Delaware, the issue of damages from escaping livestock is reviewed by 5 to 8 fence viewers. When livestock damage another owner’s fenced-in property Delaware law requires the appointment of fence viewers, 5 to 8 residents with experience in fencing and livestock issues, to determine the amount of damages, if any, to be awarded. In Delaware, if the livestock has escaped before and does so again then the fence viewers can award double damages.
Both Maryland and Delaware require a livestock owner to fence in his animals and holds the owner responsible for damages caused by escaping livestock, but the similarities end there. Maryland has no set statutory standards a fence should be built to or statutory methods for splitting costs with a division fence. Delaware on the other hand does have statutory standards that a fence should be built towards and methods to split costs.