Marilyn Odendahl for www.theindianalawyer.com
A Starke County farmer who wanted to keep his cattle from roaming onto neighboring farms will have to pay for the entire fence to be built, the Indiana Court of Appeals has ruled.
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 the Indiana’s Partition Fence statute, Indiana Code section 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.
On appeal, Belork argued Ferch and DMK&H would benefit because the fences would keep his cattle off their properties.
However, the Court of Appeals found Latimer’s argument most persuasive. She contended the partition fence statute applies to a fence which is used by both adjoining parcel owners and not to a fence that merely exists between two parcels.
It affirmed the trial court’s determination that the evidence is uncontroverted that DMK&H and Ferch do not use and derive no benefit from the fences and thus do not fall under the partition fence statute.
“While Ind. Code §§ 32-26-9 provides a mechanism for adjoining parcel owners to share in the cost of maintaining a partition fence, the statute does not require township trustees or the courts to find that every fence on a shared boundary is used as a partition fence under Ind. Code § 32-26-9-1,†Judge Elaine Brown wrote for the court.
The case is John Belork v. Robin Latimer, Davis Township Trustee and DMK&H Farms, Inc., 75A04-1503-MI-100.
