Fence Laws in Kansas (Continued From Last Week)
Most court decisions after 1874 where railroads had not built or sufficiently maintained fences, were lost by the railway companies. The problem for the railroads, just as for other builders of fences, had been that either they had not built or had not maintained their fences, and had therefore, incurred liability.
Today, Kansas is a fenced-in jurisdiction. That means that livestock owners are required to fence animals in.
The beauty of the hedge fence was that it kept renewing itself, but in order to diminish his possible lability, its owner was required to keep the hedge trimmed, especially if it ran along a public road. In 1867, the legislature passed a law that provided hedges of Osage Orange or Hawthorne trees that constituted legal fences and provide a bounty of two dollars per year per forty rods for a period of eight years commencing the year that the fence reached the specifications for a legal fence. The lack of trees in many areas hampered farmers and the legislature reasoned that the hedge bounty would encourage the planting of trees. The public interest in roadside hedges surfaced in the 1897 legislature, not in relation to the bounty, but as a result of untrimmed hedges creating blind intersections.
The legislature decided that the public interest gave the county the right to order a hedge trimmed and eventually removed if the landowner did not comply with the order to trim. The landowner was allowed thirty days to comply with the trim order, after which the county could justifiably remove the hedge. Hedge fences must be high enough and thick enough to enclose domestic animals (other than cats and dogs).
On November 13, 1985, the legislature’s Interim Committee on Agriculture and Livestock began consideration of a bill that would change the fence law. The changes included adding one more strand for barbed wire, requiring fence posts to be no more than one rod apart, and adding electric fences to the types of legal fences but were not adopted.
The necessity of fences seems to be simple, and the statues regarding fences also seems to be understandable. However, following the fence law can be complicated, and has, through time, resulted in a seemingly inordinate number of supreme court decisions. Fences continue to be a necessity in Kansas, and fence law with its companion, but not necessarily compatible, herd law will continue to be the source of litigation wherever there are land, livestock, crops, fences, and liability.
The Kansas Journal, winter 1989, and the Washburn Agriculture Law Report were sources used for this article.
