Virginia Fence Law – The Basics
C. Corey Childs, Extension Agent, Warren County
I get
this question quite often: “Who is responsible for the establishment,
maintenance/upkeep or replacement of a/this fence in Virginia?”
Disclaimer
The information presented in
this document about Virginia Fence Law and legislation is meant to be for
educational purposes only. Any advice regarding general or specific cases of
applicability of any or all Virginia Fence Laws, in the Code of Virginia or locally,
should be dispensed by a qualified attorney at law.
Who
is responsible for building a fence in the State of Virginia is a commonly
disputed question?” The answer is, “It depends!” The Code of Virginia draws a distinction
between a newly constructed fence and a pre-existing fence. In some cases, a landowner wishing to
construct or repair a division fence can compel their neighbor to cover half
the cost of the fence. The clearest
situation justifying such an arrangement is where two adjoining landowners both
have livestock but the extent to which a fence must be repaired or the type of
fence to be constructed is still a possible source of disagreement. The duty to pay half the cost becomes less
certain when one of the landowners does not keep livestock.
Historical Perspective on
Virginia Fence Law
Virginia’s original fence law
was based on English Common Law with which many colonists were familiar. It was
the livestock owner’s liability to fence in his animals. Among the earliest
pieces of fence related legislation in America occurred in 1631 when the
Virginia House of Burgesses declared,
–“Every man shall enclose
his ground with a sufficient fence.”
The implication of this was,
for the first time, what constituted a “lawful” fence was being considered and
legislated in America. Then in 1643, another important legislative act came to
pass,
- “that every man shall make
a sufficient fence about his cleared ground.”
Now the priority for containing
livestock was shifted to the Planter and Virginia General Law was born.
Beginning in 1643, the livestock
owner no longer was primarily responsible for keeping his animals on his own
land or for damages resulting from escaped animals. In 1646, the fence law was
honed to define a lawful fence as being 4 ½ feet high and substantial at the
bottom particularly. “General Law” placed the liability of property protection
on the Planter and recovery of damages could only be sought if a lawful fence
was provided by the Planter. On October 3, 1862 the General Assembly
reconsiders the existing General Law applying to fences:
“Whereas a considerable
portion of the territory of the commonwealth having been ravaged by the public
enemy, and a great loss of labor, fencing and timber thereby sustained, it is
rendered difficult if not impossible for the people of many counties and parts
of counties, to keep up enclosures around their farms, according to existing
laws…therefore county courts shall have the power to dispense with the existing
law in regard to enclosures, so far as their respective counties may be
concerned, and in their discretion they may deem it expedient to exempt from
the operation of such law.”
Currently: § 55-299 Definition of Lawful Fence
Every fence shall be deemed a
lawful fence as to any livestock named in § 55-306, which could not creep
through the same, if
(1) Five feet high, including,
if the fence be on a mound, the mound to the bottom of the ditch,
(2) Of barbed wire, 42 inches
high, consisting of at least four strands of barbed wire, firmly fixed to
posts, trees, or other supports substantially set in the ground, spaced no
farther than 12 feet 2 part unless a substantial stay or brace is installed halfway
between such posts, trees or other supports to which such wires shall be also
fixed,
(3) Of boards, planks, or
rails, 42 inches high, consisting of at least three boards firmly attached to
posts, trees, or other supports substantially set in the ground,
(4) Three feet high within the
limits of any incorporated town whose charter does not prescribe, nor give to
the council thereof power of prescribing, what shall constitute a lawful fence
within such corporate limits, or
(5) Any fence of any kind whatsoever,
except as described in this section, and except in the case of incorporated
towns as set forth in subdivision (4), which shall be:
a. At least 42 inches high,
b. Constructed from materials
sold for fencing or consisting of systems or devices based on technology
generally accepted as appropriate for the confinement or restriction of
livestock named in § 55-306, and
c. Installed pursuant to
generally acceptable standards so that applicable livestock named in § 55-306
cannot creep through the same.
A cattle guard reasonably
sufficient to turn all kinds of livestock shall also be deemed a lawful fence
as to any livestock mentioned in § 55-306.
Nothing contained in this
section shall affect the right of any such town to regulate or forbid the running
at large of cattle and other domestic animals within its corporate limits.
The Board of Agriculture and
Consumer Services may adopt rules and regulations regarding lawful fencing
consistent with this section to provide greater specificity as to the requirements
of lawful fencing. The absence of any such rule or regulation shall not affect
the validity or applicability of this section as it relates to what constitutes
lawful fencing.
(Code 1950, § 8-869; 1977, c.
624; 2007, c. 574.)
Cattle Guards
Cattle guards provide a
convenient and effective way to contain cattle and other livestock where
private roads need to pass through a boundary or fence.
§ 55-304. Property owner may
place cattle guards or gates across right-of-way.
Any owner of property on which
there is a road or way, not a public road, a highway, street or alley, over
which an easement exists for ingress and egress of others may place cattle
guards or gates across such way when required for the protection of livestock.
(Code 1950, § 8-873.1; 1954, c. 461; 1977, c. 624.)
§ 55-305. Persons having
easement may replace gate with cattle guard; maintenance and use thereof;
deemed lawful gate.
Any person having an easement
of right-of-way across the lands of another, may, at his own expense, replace
any gate thereon with a substantial cattle guard sufficient to turn livestock.
These cattle guards shall be maintained by the owner of the easement, who shall
be responsible for keeping such cattle guards at all times in sufficient
condition to turn livestock. If a cattle guard is rendered inoperative by
inclement weather, the easement owner shall utilize and maintain any reasonable
alternative method sufficient to turn livestock from the inoperative cattle
guard until such cattle guard is rendered operative again. If the gate to be
replaced is needed or used for the orderly ingress and egress of equipment or
animals there over, then such persons acting under the authority of this
section shall construct such cattle guards so as to allow such ingress and
egress or, if such easement is of sufficient width, may place such cattle guard
adjacent to such gate. Such a cattle guard shall be deemed a lawful gate and
not an interference with such easement. (Code 1950, §§ 8-873.2, 8-873.3; 1954,
c. 461; 1977, c. 624; 1992, c. 483.)
Sections 55-304 and 55-305
guarantee the following regarding cattle guards:
Any landowner, who provides an
easement for others to travel on or off the property, may install a cattle
guard in that easement if they deem it necessary. Any tenant having an easement
or right of way across the lands of another may, at their own expense, replace
a gate with a cattle guard. The owner of the easement then assumes the
responsibility for maintaining the cattle guard. Cattle guards are lawful gates
and should not interfere with easement traffic.
Trespassing Animals
These laws deal with how land
owners, neighbors and courts handle trespassing livestock and the potential
resulting damage.
§ 55-306. Damages for
trespass by animals; punitive and double damages.
If any livestock domesticated
by man shall enter into any grounds enclosed by a lawful fence, as defined in
§§ 55-299 through 55-303, the owner or manager of any such animal shall be
liable for the actual damages sustained. When punitive damages are awarded, the
same shall not exceed twenty dollars in any case. For every succeeding trespass
the owner or manager of such animal shall be liable for double damages, both
actual and punitive. (Code 1950, §§ 8-874 through 8-876; 1977, c. 624; 1979, c.
486.)
§ 55-307. Lien on animals.
After a judgment of the court a
lien upon such animal shall enure for the benefit of the owner or tenant of
such enclosed ground, and execution shall thereupon issue from the court
rendering the judgment, and the animal or animals so trespassing shall be
levied upon by the officer to whom the execution was issued, who shall sell the
same, as provided by statute. (Code 1950, § 8-877; 1977, c. 624.)
§ 55-308. Impounding
animals.
Whenever any such animal is
found trespassing upon any such enclosed ground, the owner or tenant of such
enclosed grounds shall have the right to take up such animal and impound the
same until the damages provided for by the preceding sections shall have been
paid, or until the same are taken under execution by the officer as
hereinbefore provided, and the costs of taking up and impounding such animal
shall be estimated as a part of the actual damage. (Code 1950, § 8-878; 1977,
c. 624.)
§ 55-309. Duty to issue
warrant when animal impounded.
It shall be the duty of such
owner or tenant of such lands so trespassed upon, within three days after the
taking up and impounding such animal unless the damages be otherwise settled,
to apply to a person authorized to issue warrants of the county or city in
which such land is situated for a warrant for the amount of damages so claimed
by him, and such court, or the clerk thereof, shall issue the same, to be made
returnable at as early a date, not less than three days thereafter, as shall be
deemed best by him; and upon the hearing of the case the judge shall give such
judgment as is deemed just and right.
(Code 1950, § 8-879; 1968, c.
639; 1977, c. 624.)
“No-Fence Law”
Harkening back to the actions
of the Virginia General Assembly in October of 1862, ultimately county courts
yielded to Boards of Supervisors to enact local law, but when the No-Fence Law
was locally approved, it created an absolute duty of animal owners to fence in
their animals to contain them and prevent them from crossing onto the lands of
another. This gave rise to the terms “Fence-In” and Fence-Out”.
§ 55-310. How governing body
of county may make local fence law.
The board of supervisors or
other governing body in any county in this State after posting notice of the
time and place of meeting thirty days at the front door of the courthouse, and
at each voting place in the county, and by publishing the same once a week for
four successive weeks in some newspaper of such county, if any be published
therein, and if none be published therein, in some newspaper having a general
circulation therein, a majority of the board being present and concurring, may
declare the boundary line of each lot or tract of land, or any stream in such county,
or any magisterial district thereof, or any selected portion of such county, to
be a lawful fence as to any or all of the animals mentioned in § 55-306, or may
declare any other kind of fence for such county, magisterial district or
selected portion of the county than as prescribed by § 55-299 to be a lawful
fence, as to any or all of such animals. (Code 1950, § 8-880; 1977, c. 624.)
Fence-In
• Source is English Common Law
•Boundary lines have been
declared to be lawful fences under §55-310 of the Virginia Code. Landowners
must fence their animals in.
•In 1862, most eastern VA
counties enacted this option
Fence-In Example
A shepherd in Augusta County,
which is “Fence-In”, has several sheep escape through a gate and find their way
to a neighbor’s property whereby they commence to destroying a flower garden.
In this case, Augusta
County, being Fence-In recognizes a property boundary line as a legal fence.
This places liability for the damage incurred by the flower garden squarely on
the Augusta County shepherd since it is his duty to control his animals. The
moment those sheep crossed into the neighbor’s property, they crossed a “lawful
fence”.
Fence-Out
• Source is Virginia General
Law
•Landowners must construct a
lawful fence around their properties in order to keep wandering animals out.
This is like, open range law in some western states.
•In 1862, timber was still
plentiful in most of western Virginia and some of these counties chose to
remain with General Law.
Fence-Out Example
A cattleman in Rockbridge
County has a few cows wander into a neighbor’s corn field whereby the cattle
consume a large quantity of corn and fodder.
Here the question of
liability for the damage to the corn becomes two fold. First, Rockbridge County
is “Fence-Out”, meaning that boundary lines are not legal fences and citizens
must erect a legal fence to bear no liability for unwanted livestock entering
their premises. So, was there a fence around the corn field? The second concern
then becomes, if there was a fence, did it meet the “legal fence” definition?
Legal fence YES –the cattlemen is liable for the damages
Legal fence NO –the damages are a loss for the owner of the corn
“Fence
In” Counties are Albemarle, Arlington, Augusta, Bedford, Botetourt, Buckingham,
Campbell, Charles City, Chesterfield, Clarke, Culpeper, Cumberland, Dickenson,
Fauquier, Floyd, Fluvanna, Gloucester, Goochland, Greene, Halifax, Hanover,
Isle of Wight, King George, Loudoun, Louisa, Madison, New Kent, Orange, Page,
Patrick, Pittsylvania, Pulaski, Rappahannock, Roanoke, Rockingham, Russell,
Scott, Southampton, Spotsylvania, Smyth, Sussex, Washington, Wise, Wythe, York.
Fence
Out” Counties are Accomack, Alleghany, Amelia, Amherst, Appomattox, Bath,
Bland, Brunswick, Buchanan, Caroline, Carroll, Charlotte, Chesapeake, Craig,
Dinwiddie, Essex, Fairfax, Franklin, Frederick, Giles, Grayson, Greensville,
Hampton, Henrico, Henry, Highland, James City, King & Queen, King William,
Lancaster, Lee, Lunenburg, Mathews, Mecklenburg, Middlesex, Montgomery, Nelson,
Newport News, Northumberland, Northampton, Nottoway, Orange, Powhatan, Prince
Edward, Prince George, Prince William, Richmond, Rockbridge, Shenandoah,
Stafford, Suffolk, Surry, Tazewell, Virginia Beach, Warren, Westmoreland.
In reality, the obligation to
construct a fence is considerably more complicated than these two legal
provisions suggest. A livestock owner
that knowingly permits his livestock to enter a public road is very likely to
be found negligent should the animals cause an accident, regardless of whether
the locality is “Fence-In” or “Fence-Out.”
Furthermore, other sections of Code of Virginia pertaining to fences
appear to supersede the “Fence-Out” or “Fence-In” law.
Beyond § 55-310
The infamous “No-Fence Law”
gives certain authority to localities determining their own fence law status,
but successive laws limit other possible implications of §55-310.
§ 55-311. Effect of such law
on certain fences.
Such declaration shall not be
construed as applying and shall not apply to relieve the adjoining landowners
from making and maintaining their division fences, as defined by § 55-299, but
as to such division fences, §§ 55-317 to 55-322, inclusive, shall be
applicable. (Code 1950, § 8-881; 1977, c. 624.)
§ 55-312. Application to
railroad companies.
No action taken under the
provisions of § 55-310 shall relieve any railroad company of any duty or
obligation imposed on every such company by § 56-429, or imposed by any other
statute now in force, in reference to fencing their lines of railway, and
rights-of-way. (Code 1950, § 8-882; 1977, c. 624.)
§ 55-313. No authority to
adopt more stringent fence laws.
Nothing in § 55-310 shall
authorize or require the boards of supervisors or other governing bodies of
counties to declare a more stringent fence as a lawful fence for any county,
magisterial district, or selected portion of any county, than as prescribed by
§ 55-299. (Code 1950, § 8-883; 1977, c. 624.)
§ 55-314. Effect on existing
fence laws or no-fence laws.
Nothing in § 55-310 shall
repeal the existing fence laws in any county, magisterial district or selected
portion of any county, until changed by the board of supervisors or other
governing body, in accordance with the provisions thereof; nor shall the
provisions of such section apply to any county, magisterial district, or
selected portion of any county, in which the no-fence law 6 is now in
force, if such no-fence law exists otherwise than under an order of the board
of supervisors or other governing body of such county entered pursuant to such
section. (Code 1950, § 8-884; 1977, c. 624.)
§ 55-316. When unlawful for
animals to run at large.
It shall be unlawful for the
owner or manager of any animal or type of animal described in § 55-306 to
permit any such animal, as to which the boundaries of lots or tracts of land
have been or may be constituted a lawful fence, to run at large beyond the
limits of his own lands within the county, magisterial district, or portion of
such county wherein such boundaries have been constituted and shall be a lawful
fence. (Code 1950, § 8-886; 1977, c. 624; 1979, c. 486.)
Division Fences
Good fences make good neighbors
only after the law ensures that obligation to build and maintain them, now and
in the future, is assured.
§ 55-317. Obligation to
provide division fences.
Adjoining landowners shall
build and maintain, at their joint and equal expense, division fences between
their lands, unless one of them shall choose to let his land lie open or unless
they shall otherwise agree between themselves. (Code 1950, § 8-887; 1970, c.
713; 1977, c. 624; 2005, c. 873.)
In 2005, when this law was
amended, the intent was to remove the ability for an owner of commercial
property to label the land as “lying open” regardless of interest in
agricultural use. However the key to interpreting §55-317 is the
absence of an existing division fence. If one neighbor needs a fence,
typically for livestock, and the other neighbor does not, then both neighbors
are not equally liable for the fence, as long as one neighbor allows the land
to basically remain fallow.
§ 55-318. When no division
fence has been built.
When no division fence has been
built, either one of the adjoining owners may give notice in writing of his
desire and intention to build such fence to the owner of the adjoining land, or
to his agent, and require him to come forward and build his half thereof. The
owner so notified may, within ten days after receiving such notice, give notice
in writing to the person so desiring to build such fence, or to his agent, of
his intention to let his land lie open, in which event, and if the one giving
the original notice shall build such division fence and the one who has so
chosen to let his land lie open, or his successors in title, shall afterwards
enclose it, he, or they, as the case may be, shall be liable to the one who
built such fence, or to his successors in title, for one-half of the value of
such fence at the time such land shall be so enclosed, and such fence shall
thereafter be deemed a division fence between such lands.
If, however, the person so
notified shall fail to give notice of his intention to let his land lie open,
as hereinabove provided, and shall fail to come forward within thirty days
after being so notified, and build his half of such fence, he shall be liable
to the person who builds the same for one-half of the expense thereof, and such
fence shall thereafter be deemed a division fence between such lands.
Notwithstanding the provisions
of this section, no successor in title shall be liable for any amount prior to
the recordation and proper indexing of the original notice in the clerk's
office of the county in which the land is located. (Code 1950, § 8-888; 1977,
c. 624; 1985, c. 486.)
Does “lie open” mean forever? The
key to §55-318 is whether or not the intention to build the original fence was
put in writing and the decisions made were recorded in the county clerk’s
office.
§ 55-319. When division
fence already built.
When any fence which has been
built and used by adjoining landowners as a division fence, or any fence which
has been built by one, and the other afterwards required to pay half of the
value, or expense thereof, under the provisions hereinbefore contained, and
which has thereby become a division fence between such lands, shall become out
of repair to the extent that it is no longer a lawful fence, either one of such
adjoining landowners may give written notice to the other, or to his agent, of
his desire and intention to repair such fence, and require him to come forward
and repair his half thereof, and if he shall fail to do so within thirty days
after being so notified, the one giving such notice may then repair the entire
fence so as to make it a lawful fence, and the other shall be liable to him for
one-half of the expense thereof. (Code 1950, § 8-889; 1977, c. 624.)
Sometimes the most contentious
fencing issues between adjoining property owners arises over the disrepair or
“unlawfulness” of an existing division line fence. The question of who pays for
what if they don’t each agree that the fence is in need of repair or
replacement can cause significant angst.
§55-319 addresses this.
Important things to remember are:
• When an existing and lawful
division fence is in place and is in need of repair, adjoining landowners both
assume responsibility for half the repair costs.
• Since §55-319 deals with an
existing fence, there is no avoidance of financial obligation for maintenance
by one landowner choosing to let their land “lie open”.
• Like §55-318, notice of fence
repair has to be filed at the county clerk’s office for 30 days before no
response from the adjoining landowner obligates financial responsibility for
half the fence.
§ 55-321. Requirements for agreement to bind successors in title;
subsequent owners.
No agreement made between
adjoining landowners, with respect to the construction or maintenance of the
division fence between their lands, shall be binding on their successors in
title, unless it be in writing and specifically so state, and be recorded in
the deed book in the clerk's office of the county in which the land is located,
and properly indexed as deeds are required by law to be indexed. If any notice, as required by § 55-318 or §
55-319 is recorded in the deed book in the clerk's office of the county in
which the land is located and is properly indexed as deeds are required by law
to be indexed, then any subsequent owners of such land shall be liable for any
sum which may be due pursuant to § 55-320.
Thus, the answer to the
question regarding whether new owners of adjacent lands are bound by old
agreements concerning division fences is going to depend on whether the
requirements of § 55-521 have or have not been met.
Summary
• The history and
interpretation of Virginia Fence Law can be both fascinating and complex.
• The “No-Fence Law” and
division laws are probably the most misunderstood pieces of Virginia Fence
legislation.
• It is important that, where
boundary fences are concerned, landowners understand their obligations before
construction to avoid contractors being caught in a conflict.
• Meeting the requirements of a
“lawful fence” is critically important for enforcement of any of the Virginia
Fence related laws.
• Fence maintenance agreements
between adjoining landowners should be filed with the County Clerk’s office in
the jurisdiction of the fence location.
• Properly filed fence agreements
are binding for successive generations and landowners
Virginia fence law refers only
to landowners. The Code does not mention ‘tenants’ or ‘owners of
livestock.’ This has very real
implications for landowners who lease land to farmers with an understanding
that the farmer-tenant maintains all fences.
Landowners should be aware of their potential obligations and liability
related to maintaining boundary fences.
Thanks to Eric Eberly (eeberly@vt.edu), Extension Agent, Farm Business
Management, Central District; Tom Stanley (stanleyt@vt.edu), Extension Agent,
Farm Business Management, Northwest District; Jason H Carter, previous Extension Agent, Augusta County for
information used in this publication.
