Scott Roberts for www.theindianalawyer.com
A divided Indiana Court of Appeals overturned an earlier decision Thursday, finding residents that border a property where a man wants to build fences to keep his cattle in must help fund the fences because they are partition fences and fall under Indiana Code 32-26-9.
John Belork rebuilt portions of the fence along the eastern and southern boundaries of his property to keep his herd penned in. He felt his neighbors, Jan Ferch and DMK&H Farms Inc., should rebuild the remaining portions as required by Indiana’s partition fence statutes, Indiana Code 32-26-9.
When the neighbors balked, Belork turned to Robin Latimer, Davis Township trustee, and asked that she require Ferch and DMK&H to build or fund the uncompleted fences. Latimer refused and the Starke Circuit Court agreed, finding that statute did not apply because neither neighbor derived a benefit from the fences.
The COA issued a decision on Nov. 16, 2015, which found Indiana Code 32-26-9-1 does not require every fence on a shared boundary is used as a partition fence, but the appellate court reversed its decision on rehearing.
The neighbors argue the effect of 32-26-9-1 is to limit the application of the chapter to those circumstances in which both adjoining property owners make or would make beneficial use of a partition fence separating their properties. However, on rehearing, Judge Elaine Brown wrote that part of the code is not applicable because the fence has not been treated as a partition fence by the adjoining parcel owners.
However, just because the neighbors won’t make use of the partition fences doesn’t exempt them from other parts of Indiana Code 32-26-9, namely sections 2 and 3. Because they are partition fences and subject to these codes, the court said the neighbors must help.
Judge Patricia Riley dissented in the opinion, saying Belork did not bring up any new evidence and the only thing different is the presence of an amicus curiae brief from the Indiana Agricultural Law Foundation.
“Amicus curiae briefs are often attempts to inject interest-group politics into the appellate process by flaunting the interest of the trade association or other interest group into the outcome of the appeal. From its brief, it is apparent that Indiana Agricultural Law Foundation is not a neutral advisor, but rather is clearly in the driver’s seat in these rehearing proceedings.”
She said the COA majority should not have considered the amicus as an equal partner, so the request for rehearing should have been denied.
The case is John Belork v. Robin Latimer, Davis Township Trustee and DMK&H Farms Inc., 75A04-1503-MI-100.