Good Fences

Please read my general disclaimer. The following article is premised solely upon Montana law.  If you do not live in Montana, some of the material contained herein may not be applicable in your jurisdiction.  Please consult an attorney licensed in your state for personal legal advice.

Today my mind is drifting to the topic of rural life and mentally streaming some narrative blend of Garrison Keillor and Lyndel Miekle. Springtime in Montana is weeks ahead of schedule, and tuning up the fences on our own property is a task that is not very poetic in practice, but so very necessary.  With cow-calf pairs next door to horses, with my mares across the fence from the neighbor’s geldings, livestock drama often ensues.

Why IS the grass always greener on the other side the fence—and in both directions?  Perhaps a brief poetry break can answer the question:

P8140378_1

You never know when neighborly goodwill is going to be needed…

Before I built a wall I’d ask to know
What I was walling in or walling out,
And to whom I was like to give offense.
Something there is that doesn’t love a wall,
That wants it down. I could say ‘Elves’ to him,
But it’s not elves exactly, and I’d rather
He said it for himself. I see him there
Bringing a stone grasped firmly by the top
In each hand, like an old-stone savage armed.
He moves in darkness as it seems to me,
Not of woods only and the shade of trees.
He will not go behind his father’s saying,
And he likes having thought of it so well
He says again, ‘Good fences make good neighbors.’

—from Mending Wall by Robert Frost (1874 – 1963)

Frost’s narrator may have grumbled about the need of a wall for the purpose of separating pine and apple trees, but the neighbor, “an old-stone savage armed,” had it right.  Good fences actually do make good neighbors.  (At least sometimes.2)  And with equine “elves” definitely amongst those “that doesn’t love a wall, That wants it down,”  I get a lot of questions about fence laws in Montana.  Though they are complicated to read and scattered through several parts of the Montana Code, their practical application is simple:  Keep your fences up!

Big Belts

This appears to be a legal fence1

The open range doctrine is not dead in Montana, but it’s on life support, particularly for horse owners or anyone living close to town, and especially if an animal gets loose on most state or federal highways.  A livestock owner can be civilly liable for any damages their animals cause if the critters are loose where they are not supposed to be.  (Example: §60-7-203, MCA)  You can also be charged with a misdemeanor and subject to fines. (Example:  §81-4-209, MCA)

While much of rural Montana is still technically open range, many Montana horse owners live within herd districts, where the legal duty is to keep livestock fenced in.  There also are many, many exceptions to the general open range doctrine.  (An example of tragic consequences here and here.3) Your legally safest approach is to assume you have a duty to keep your horses contained and that you could be liable for any damage they cause if they escape.

If you have a “legal fence,” that does reduce your liability exposure, but the laws in Montana are archaic and confusing when applied to modern horse owners and modern fencing materials.   I don’t want barbed wire enclosing my horses, yet cattle are often oblivious to anything more subtle.  Wood or synthetic rails get very pricey for enclosing pastures. So a combo of electric fence and smooth wire is my compromise, and I try very hard to keep the juice flowing.  But the courts have seldom interpreted the legal fence question and decisions are generally very fact-specific.

The law states that if the fence isn’t as described in statute, you are liable; it describes any other kind of fence as “defective.” §81-4-103, MCA.  Now, as a lawyer, you could pay me a lot of money to test that presumption, but a better solution is probably to just do what I do along one of my own fencelines that abuts a cattle ranch:  The neighboring landowner installed his four-strand barbed wire fence, and I installed offset electric wire and a visible top line of electrifiable web (which could be lit up, but isn’t) on the other side of the same set of fenceposts.  (I could probably also install woven wire on “my” side, or even a separate fence, but this solution works.)

A few basics:

  • Title 81, Chapter 4 of the Montana Code Annotated (MCA) has most, though not all, of the Montana statutes governing containment of livestock. (Title 60, part 7 has a few crucial statutes about horses and roadways, and other relevant laws are sprinkled throughout the Montana Code)
  • Legally, horses are livestock. §15-1-101 (1)(l), MCA, §60-7-102, MCA.
  • Stallions can’t run loose on the open range ever, even where there is open range. §81-4-204, MCA.
  • There are no other special fencing rules for stallions.  (This means yes, in Montana, your neighbor could put a stallion next door to your mare with only a four-foot high, three-strand barbed wire fence between them.  Just saying…)
  • Horses can’t run “at large” in a herd district.  §81-4-324, MCA. To find out if you live in one, call your local County Commissioners’ office.
  • Herd districts are established by and tracked in each county by a rather complex process. §81-4-301, MCA. These generally are areas where cultivation of land or residential development is common.  For the most part, herd districts were created by farmers many decades ago to keep cattle off of their crops.
  • Horse herd districts can be created more easily than a general herd district.  §81-4-322, MCA. Historically, this statute was enacted in part due to large numbers of feral horses let loose to roam open land during the Great Depression.
  • Even on the open range, if animals break into someone else’s property (at least, if it has a legal fence), the livestock owner can be liable for damages. §81-4-215, MCA.  Similarly, on the open range, highway safety dictates that livestock owners keep their animals of the highway. Larson-Murphy v. Steiner, 2000 MT 334, 272 Mont. 64, 15 P. 3d 1205.
  • A “Highway” includes the right of way. §60-1-103, MCA.  Though many roads in Montana run through open range, the right of way is mandated to be fenced.
  • A legal fence is defined at  §81-4-101, MCA.  A legal fence can include the following (see the statute for all the details on height, fencepost placement, and so on):
    • a four-board, -rail, or -pole fence,
    • a three-strand barbed wire fence,
    • woven wire topped with two strands of barbed wire,
    • “electric fences consisting of three or more wires”  — but the law is unclear if all three wires must be electrified or if electric wires combined with non-electric wires would meet the definition of a legal fence.
  • Interestingly, there is no legal definition of “wire” in the MCA.  There is also no definition of “board, rail or pole” in the code, either (nor is size/diameter specified for any of the above). There is also no discussion of whether non-electrified smooth wire or coated high-tensile wire could meet the definition of a legal fence.
  • Fallen-down wire fences are considered a public nuisance and the owner has to fix them—or at least clean up the wire. §81-4-105, MCA.
  • Owners are obligated to keep fences in good repair. §81-4-104, MCA
  • While “open range” is defined in law as land ” not enclosed by a fence of not less than two wires in good repair,”  §81-4-203, MCA, be aware that a two-strand barbed wire fence which converts open range land is not adequate to constitute a “legal fence.” (see dissent of Indendi, cited below)
  • Adjacent landowners have equal responsibility to repair and maintain a common fenceline, though only to the minimum standards of a “legal fence.”  (i.e. if your neighbor wants barbed wire and you don’t, you will probably be picking up the cost of anything more expensive.)  Details at §70-16-205, MCA.
  • If your pasture borders a railroad, there are entirely different laws. (See, e.g.,  §69-14-701, MCA.)

So, watch your gates, keep your fences in good repair, and make friends with your neighbors.   You never know when goodwill is going to be needed.


Footnotes:

  1. Said fence has not been adjudicated by any court of law to be a legal fence, but appears to consist of at least three strands of barbed wire in good repair and within the height requirements provided by Montana law.
  2. “…Whereas in Robert Frost’s New England good fences make good neighbors, in Montana, generally speaking, messing with your neighbor’s fence is a good way to start trouble that comes cheap and leaves expensive.”  James C. Nelson, Guthrie v. Hardy, 2001 MT 122, ¶38citing State v. Mumford (1924), 69 Mont. 424, 222 P. 447 (wherein “defendant accuses neighbor of cutting down his fence, which neighbor denies; gun play ensues resulting in neighbor’s death and defendant’s conviction for manslaughter”)
  3. See Indendi v. Workman272 Mont. 64, 899 P.2d 1085 (1995).  A horse and a mule got out onto a state highway near Norris at night and the horse was hit and killed by a vehicle. The driver was injured and her vehicle was totaled.  Be aware that parts of this case have been superceded by amended statutes and other case law, but this is an example of what can happen; the law often places responsibility on the livestock owners.  The legal issues in this case were superceded by Larson-Murphy v. Steiner, 2000 MT 334, 272 Mont. 64, 15 P. 3d 1205, wherein a driver was severely injured in a collision with a bull, and the Court found that even on open range, a duty of care was owed by a livestock owners to motorists.  That decision has also been altered by some subsequent statutory changes.

Copyright 2016, Brenda Wahler

Disclaimer

Advertisements