“Don’t ever take a fence down until you know why it was put up.”
— Robert Frost
“Good fences make good neighbors.”
Though I didn’t get the awesome experience of judging the rabbit and poultry costume competition at the fair this year, I’ve been enjoying the pictures of Junior Fair competitors that friends and neighbors have been sharing online. I’ll be just fine without my annual infusion of elephant ears and cotton candy, but these kids put in a year’s worth of work, and it’s wonderful to see them able to earn the payoff for it. All these photographs of kids with rabbits, goats, ducks, sheep, pigs, cows, and horses got me to thinking about how Ohio law makes for good neighbors.
Staying true to the old adage, Ohio has long required some neighbors to put fences up. That’s not necessary, of course, if you live in the city or in suburbia, but if your parcel of land is more than five acres, if you plant more than a backyard garden, if the family pet has udders or horns or if the name John Deere means more to you than a riding lawn mower, then you’re likely to need a fence. In fact, the Ohio Revised Code has an entire chapter on fences.
Chapters in the Ohio Revised Code are not like chapters in a book. The Ohio Revised Code is 61 volumes of law. It fills an entire bookshelf. The code is divided into broad titles like Crimes (Title 29), Education (Title 31) and Insurance (Title 39), and each of those titles is then broken down into smaller chapters and sections. Title 9 is Agriculture and chapter 971 is fences.
Ohio law essentially requires those who own livestock to make sure that their animals don’t end up roaming onto their neighbors land, and to do so by building a fence. Livestock is defined in the law as, “horses, mules, asses, hogs, sheep, goats, cattle and any other animal that is raised or maintained domestically for food, fiber or hunting purposes.” That law, which is nearly as old as the state itself, was last amended in 2008.
In the past, landowners were required to split the total cost of constructing the portion of the fence that ran along their adjoining properties. They were also required to share the cost of maintaining and repairing that fence to make sure that their livestock continued to be contained over time. The 2008 amendments to the law made some major changes in that division of costs now require some action on the part of those who already have a fence in existence.
More importantly, the way that the costs of maintaining existing fences are shared by the adjoining landowners changed in the 2008 amendments, as well. It’s simply not a 50-50 split anymore. Other issues, like the lay of the land, the presence of waterways, the placement of trees and other vegetation, the risk of trespassers, and the number and type of livestock kept by each owner can now also play into the equation. Because of this, the split in cost is now referred to as being “equitable” instead of “equal.”
Perhaps most important were new requirements about the filing of affidavits where fences have been removed. If a partition fence previously existed but had been taken down, the landowners were required to file a sworn statement with the office of county recorder by Sept. 30, 2009. If the affidavit wasn’t filed, then any new construction is to be treated as though a fence was never there, and that’s something a landowner definitely doesn’t want.
That’s because new fence construction is now the sole responsibility of the person building the fence. The person who built the fence can also file an affidavit with the county recorder and if their neighbors use the fence to keep in livestock in the next 30 years, then the neighbor can become responsible for a portion of the cost of building and maintaining the fence. If the neighbors can’t agree, the township trustees or the general division of the court of common pleas can be asked to settle the dispute.
Title 9 also has entire chapters about apiaries, dogs, dairy products, snakes, and even bakeries. And, though there haven’t been any amendments to it since 1994, there is also an entire chapter about horse meat. Perhaps my favorite section of Title 9 of the O.R.C. is section 951.02. It provides, in part, that no person who keeps bison, llamas, or alpacas shall recklessly permit them to roam onto a public roadway. So please, no llamas on the highway.
David Hejmanowski is judge of the Probate/Juvenile Division of the Delaware County Court of Common Pleas, where he has served as magistrate, court administrator, and now judge, since 2003. He has written a weekly column on law and history for The Gazette since 2005.