Fence Laws in Kansas
In 1855, the first territorial legislation passed the first fence law in the Kansas Territory. Even as late as 1985, Kansas legislators were still trying to develop enforceable fence laws. Although the federal government did not enact a fence law until 1885, there were common law precedents for fencing requirements in the United States. These were carried to Kansas by emigrants from both the northern and southern states.
In New England in the 1850s, common law held that the stock owner was responsible for his animals and was, therefore responsible for the building of fences to control his herd, known as the herd law. In the American South, however, common law followed the interpretation originally held in Great Britain: the farmer was responsible for protecting his crop from livestock and responsible for building the fence. This came to be known as fence law.
It was the concept of fence law, with the responsibility of fencing out the livestock resting with the farmer, that was adopted by the territorial legislature in 1855. The fence law has retained its basic tenets for more than a century despite being modified by lawmakers over the years. Of the seventy- two counties that had been established by the end of 1872, most recognized the fence laws. With at least thirteen counties petitioning the legislature for herd laws at county option. Inconsistency in the law remained until 1929 when the legislature finally adopted herd law as the statewide requirement. While the responsibility for building the fence was debatable, the definition of what constituted a legal fence was not. The 1855 territorial legislature defined materials as posts and rails, posts and palings, posts and planks or palisades, turf, a hedge, or just rails. During the 1860s, stone, which must be at least 18 inches wide at the bottom and 12 inches at the top, and wire were added to the list: the 1883 legislature added barbed wire, which is the legal fence by law today that must have three wires. Other requirements for barbed wire fences include that the bottom wire be between 18 and 24 inches from the ground, center wire must be equidistant between the upper and lower wires, and all wires must be well stretched and barbed. Barbs must average not more than nine inches apart, the barbed wire must be composed of two wires not smaller than number 13, or one wire no smaller than number 9, or be wires not less than 950 pounds of breaking strength, all wires must be securely fastened to posts, post must not be more than two rods apart ( a rod is sixteen and a half feet) and not less than 20 inches in the ground. Electric fences do have requirements of at least 14-gauge wire not more than 48 inches from the ground that is deemed by the fence viewers to be equivalent to other legal fences.
However, the board of county commissioners could elect to declare that electric wire fence is not a legal fence in the county.
Since 1868, the law regarding fences has stipulated the height of fences, today it is at least four feet high, the distance between posts, the depth of the post holes, the height of the bottom plank or wire above the ground, the number of planks or strands of wire, and the weight of the wire. Partition fences, those separating the land of one farmer or stockman from another added the element of shared responsibility to the aspect of building and maintaining fences. Common practice required each landowner to pay half the cost of the fence which was on his right as he faced the fence from his property. This was not statutory law and could not be legally enforced. In cases where owners could not agree and each built on his own land running parallel to the property line, the space between the fences was called a “devil’s lane.”
Some counties allowed landowners that had disputes to have a panel of three arbiters settle the dispute, in 1868 the law was amended to designate the township treasurer, trustee, and clerk as the official viewers. If a disagreement arose regarding the viewers findings, the district court was empowered to act. In 1949 the law was again amended to name the county commissioners as the fence viewers and to give the district court the discretion in cases of dispute. In Greenwood County only seven uses of viewers were recorded between 1885 and 1914. The law did not provide those findings had to be recorded, so there may have been more viewings. In the judgement of the fence viewers, a brook, river, creek, ditch and equivalent construction may be deemed a legal fence.
In Smith v. Ott, Fred Ott sued when Smith’s cattle went through a defective section of the partition fence which was the section for which Smith was responsible. Ott was joined in the suit by several surrounding landowners from Greenwood County, and the district court found in their favor. The Supreme Court of Kansas concurred by finding that in the question of partition fences, the party that was negligent in maintaining the fence was liable for damages.
Matters were more confused by the passage of the Herd Law of 1929. This stated that the herd law was in effect statewide and no longer by county option: the existing fence laws were not rescinded, however. To the ongoing discrepancy between herd and fence law, the 1874 legislature added a new amendment to its fence statues that required railroads to fence off their tracks to avoid killing stock.
