Township trustees may determine what constitutes a “legal fence”

by Eric Christianson

Hopkins vs. Dickey
Iowa Court of Appeals, October 25, 2017

This dispute concerns the repair and maintenance of a 600 foot fence separating the properties of Matthew Hopkins and Robert Dickey. Iowa’s Fence Code 359.17(1) uses the “right hand rule” to determine who is responsible for the maintenance of a fence. Essentially, if the two property owners were to stand facing one another at the center of their adjoining property line, each is responsible for the fence to his/her right unless an alternate agreement is made in writing. In this case, Dickey is responsible for the west 300 feet and Hopkins is responsible for the east 300 feet.

In 2010 after several instances of cattle escaping, Dickey informed Hopkins that he needed to repair that portion of the fence. Hopkins declined to do so, stating “that’s not what the law requires” and he already had “too many projects.” Dickey filed a complaint with the local township trustees, who are responsible for managing fence disputes. The trustees ordered Hopkins to “erect and maintain the East 300 feet of the partition fence” and that such be a “lawful fence” having “five barb wires attached to posts not more than 10 feet apart.”

Hopkins appealed the trustees’ decision to district court. The district court upheld the trustees’ decision, finding the application of the right-hand rule was both “a customary practice” and “fair and equitable.” Hopkins then appealed to the Iowa Court of Appeals alleging:

  1. A verbal agreement with the previous landowner excused Hopkins from all responsibility to maintain the fence.
  2. The fact that the decision only applied to him violated case law that states that Iowa’s fence law exists “to equalize the partition fence burden.”
  3. The specifications that he was ordered to build the fence to exceeded those required by law.

The court of appeals affirmed the district court on all three points.

The alleged prior verbal agreement is hearsay and therefore inadmissible. Further, even if a prior agreement existed, it should be legally recorded according to Iowa Code 359A.13 to have any authority.

The fact that the court order only applies to Hopkins does not violate the principle of equalizing the burden as, at the time of trial, Dickey had recently rebuilt half of the partition fence. The court stated that it is undisputed that the portion of the fence built by Dickey was “in good repair” at the time of the fence viewing. Therefore it was not necessary to order Dickey to maintain the fence.

Finally, the appeals court found that the trustees have some leeway in deciding what constitutes a legal fence:

The term “legal fence” as defined in the statute is not a prescription, however, for how every partition fence must be constructed or what fence viewers must require, but sets forth a minimum standard for a “legal fence.” […] In this case, the fence viewers and the court determined Hopkins was responsible for a portion of existing fence that was in such disrepair it did not constitute a “legal fence.” The district court ordered Hopkins to construct a new fence in keeping with the style and character of the existing fence and in keeping with the fence constructed by Dickey and approved by the fence viewers.

Indianola fence ordinance not a taking

by Gary Taylor

Iowa Assurance Corporation v. City of Indianola
(Federal 8th Circuit Court of Appeals, August 16, 2011)

Vinton Watson races figure eight cars, and owns seven to eight cars at any one time. In March 2006 Watson began leasing a shop and adjacent parking lot from Ron Inman to store his cars. Inman’s property is located in Indianola and is zoned for commercial use. The shop that Watson leases consists of half of one building and amounts to “a little over 900 square feet.” The parking lot included in the lease is located immediately adjacent of the building and is twenty-seven by thirty-four-feet. Watson can store up to three cars in the shop, although it is difficult to store more than two cars when repairing vehicles inside the shop. Additionally, Watson stores up to three cars in the parking lot, although cars are not always stored there.

Neighbors have complained to the Indianola city council on numerous occasions about the appearance and noise of Watson’s cars.  As a result, the city council passed an ordinance in 2007, amended in 2009, requiring figure eight cars and other race cars to be inclosed by a fence in all outdoor areas where two or more vehicles are present.  Watson sued the city, specifically alleging that the ordinance creates an uncompensated regulatory taking by requiring him to install a fence and by reducing the overall value of the property.  The suit was brought in state court but the city had the case removed to federal court.  The Federal District Court for the Southern District of Iowa found in favor of the city and Watson appealed.

The 8th Circuit noted that regulatory takings claims come in four types:

The first type is a regulation which requires an owner to suffer a permanent physical invasion of her property. The second type is a regulation that completely deprive[s] an owner of all economically beneficial use of her property. The third type is a governmental requirement that, without sufficient justification, requires an owner to dedicate a portion of his property in exchange for a building permit. The fourth type is any other regulation which, after considering its economic impact upon the plaintiff and its essential character, is functionally equivalent to the classic taking in which government directly appropriates private property or ousts the owner from his domain.

Watson claimed that the city’s action violated the first and third types: physical invasions and land-use exactions.  The Court rejected both of Watson’s claims.  It rejected the physical invasion claim because the ordinance does not require Watson to permit either the city or any third party to enter his property to install a fence, and consequently does not erode his right to exclude others from his property.  It rejected the land use exaction claim because in those cases the government is demanding that a landowner dedicate an easement allowing public access to her property as a condition of obtaining a development permit, or other type of license.   The Indianola ordinance does not require Watson to dedicate any portion of his property to either the City’s or the public’s use as a condition of anything.

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