34 NEBRASKA CATTLEMAN March 2025 GOOD FENCES MAKE STEPHEN D. MOSSMAN, MATTSON RICKETTS LAW FIRM, LLP | FORMER CHAIR, NSBA SECTION ON NEBRASKA In 1914, poet Robert Frost wrote, “Good fences make good neighbors.” This is still true today in rural Nebraska where thousands of miles of fence are found. However, constantly monitoring and maintaining fences can be a large burden. The very nature of fences – dividing two parcels of land used for di erent purposes – can inspire intense disputes over where and how they should be built and who should pay for them. In the last 15 years, in an e ort to alleviate some burden and di use disputes, the Nebraska Legislature adopted substantial changes to the state’s fence law. THE PAST: NEBRASKA’S FENCE LAW There are two basic types of fence laws in the United States: “fence-in” and “fence-out.” The di erence between them lies in who ostensibly bene ts from a fence. The law generally requires the person bene ting from a fence to bear the burden of building and maintaining it. In states with fence-in laws, livestock owners are liable for damage their animals cause while wandering onto others’ properties. Livestock owners therefore bene t from fencing in their cows because the animals stay on their property. Conversely, in states with fence-out laws, livestock owners are not liable for damage caused by their wandering animals. Thus, landowners who want to keep livestock o their property must maintain fences for that purpose. Nebraska has traditionally been a fence-in state. For more than a century, disputes over fencing were solved by a group of three people who would determine how speci c adjoining landowners would share costs for maintaining a fence. POST-LEGISLATIVE CHANGES In 2007, that process was replaced through the passage of LB 108. Landowners now resolve disputes through lawsuits led in county court or mediation. The speci c process under Neb.Rev.Stat. §34-112.02 is for the landowner desiring to construct or repair a division fence provide written notice to the neighboring landowner prior to construction, CATTLEMAN requesting the neighbor satisfy their obligation by either performance or contribution. If the neighboring landowner does not respond or refuses, the landowner desiring a division fence can then le a complaint on a court-authorized form in county court to force contribution. When the complaint is led, the parties also receive information from the county court concerning the availability of mediation through the farm mediation service of the Nebraska Department of Agriculture. I have not personally utilized this service for fence disputes but have for other matters, and the Department of Agriculture mediators do a good job. I would highly encourage cattlemen and cattlewomen to utilize the cost-free mediation services through the Department of Agriculture rather than go through the uncertainty of a trial. In practice, neighboring landowners had traditionally split maintenance costs evenly. The easiest and most common method was the “right-hand rule,” under which each landowner would maintain the fence “to the right” of a speci ed center point. But in situations where only one neighbor owned livestock, the fence law produced less predictable results. LB 667 was enacted and took e ect in 2010. Legislative ndings were adopted as Neb.Rev.Stat. §34-101 as part of Nebraska’s fence law, noting the bene ts of separating property by a division fence. In addition, the bill amended Nebraska’s fence law in Neb.Rev.Stat. §34-012 to require neighboring landowners to share equally the cost of building and maintaining a four-wire barbed wire fence between their properties. Landowners can opt out entirely or can choose a di erent division of costs or a di erent type of fence. But, if they cannot agree, informally or through mediation, then a court will order them to split the cost of a barbed wire fence 50-50. The nal legislative change was LB 766, adopted in 2018. LB 766 revised Neb.Rev.Stat. §34-112.02 to require the written notice be delivered before construction of the division fence. PRACTICAL ADVICE Under the new standard, convincing one landowner to shoulder more than half of fence costs is di cult. Each PERSPECTIVES
RkJQdWJsaXNoZXIy NTMxNTA5