It’s not uncommon for disputes or confusion to arise when it comes to fences.Who’s responsible for building and maintaining them? What rights does a landowner have if another person’s animals amble onto his property? Since a strong, friendly relationship with neighbors can go a long way in mitigating potential land disputes, understanding fencing laws is an important area of expertise for every Texas landowner.
Fencing law can be broken down into four basic topics, with two focusing on liability and two on landowner responsibility.
Liability for Livestock on the Roadway
One common area of concern with fencing laws is whether or not a landowner is liable in the event of an accident caused by one of their animals meandering onto a roadway.
The main contributing factor in the question of liability is the fact that Texas is an open-range state, meaning that livestock owners are not required to fence in their animals to prevent them from roaming. This means that if a cow that doesn’t belong to you wanders onto your land, they’re not trespassing. The Texas Supreme Court has upheld that it’s the right of every domestic animal owner to let them run at large.
While the law of open range is still in effect in Texas today, there are two exceptions. The first exception are stock laws, or county-based ordinances, and the second is the extensive development of state highways that have changed large portions of the state from open range to closed range. Stock laws differ by county, and require animal owners to fence in their livestock under certain situations.
When stock laws are in place, closed-range law replaces the common rule of open range.
What you need to find out as a landowner
- Does a stock law exist in your area, or do you live in an open-range area or a closed-range area? If you live in a closed-range area with stock laws, you will be required to maintain a fence to keep your livestock on your property.
- Is there a specific animal species that the law covers?
- Do you meet those requirements laid out in the stock law?
Most local stock laws establish a standard of care a landowner has to meet to avoid liability if their livestock roam free, and many stock laws prohibit landowners from permitting their animals to run at large at all. If someone gets injured by your animal, a landowner is considered liable if they permitted the livestock to run free. ‘Permitting’ livestock to run free might mean leaving a gate open, being told that livestock were in a roadway and failing to remove them, or failing to maintain fences.
Main Takeaway: Failing to maintain fences can result in legal trouble if there is an accident involving some of your animals because they were able to escape your property in a closed-range area.
Liability for Livestock on Neighboring LandQuestions often arise between neighboring landowners regarding who is responsible for fences and livestock. The answers take us back to the conversation about closed and open-range counties.
If you live in an open-range county, you are responsible for building a fence if you want to keep your neighbor’s cattle off of your property. The Texas Supreme Court has said: “[i]t follows that one who desires to secure his lands against the encroachments of livestock running at large, either upon the open range or in an adjoining field or pasture, must throw around it an [enclosure] sufficient to prevent the entry of all ordinary animals of the class intended to be excluded. If he does not, the owner of animals that may encroach upon it will not be held liable for any damage that may result from such encroachment.”
However, if you as a landowner live in an open-range county, have built an adequate fence to keep other people’s animals off your property and cows still make their way in, you have the right to recover property damages from the animal’s owner. If you haven’t built a proper fence, then you have no recourse against a livestock owner when animals enter your property.
If you live in a county that’s passed a stock law, making it a closed-range county, livestock owners are required to keep their animals in by fencing them. Allowing animals that are covered by stock law to run at large is against the law. Accidents do happen, and cows have a way of escaping when they see a particularly tasty-looking bunch of grass on some neighboring property, so notifying your neighbor and helping them retrieve the cow in question off their property is the best course of action to avoid a legal dispute.
Main Takeaway: If one of your animals enters your neighbor’s property when you were supposed to maintain a fence since you live in a closed-range area, you can be held legally liable.
Responsibility for Fence Building and MaintenanceMaintaining correct boundary lines between your land and your neighbor’s is essential. Here are the different situations where landowners need to consider building a fence:
To Contain Animals By Highways
In Texas, all interstate and state highways are closed range, and all people who own animals are not permitted to knowingly allow their animals to roam at large, unattended, on the highway. To keep livestock off the highways, it’s the landowner’s responsibility to build and maintain a fence along all interstate or state highways that border their land. If you own land but no animals, you’re under no obligation to build a fence.
As a Boundary Between Neighbors
A landowner in Texas has no legal obligation to share in the cost or future maintenance of a fence built by his neighbor along their dividing property line unless they have agreed to. On that subject, the Texas Supreme Court has said that, “if one proprietor [encloses] his land, putting his fence upon his line, the owner of the adjacent land may avail himself of the advantage thereby afforded him of [enclosing] his own land without incurring any liability to account for the use of his neighbor’s fence.”
Basically, if your neighbor has built the fence, you’re not responsible for maintaining it or contributing to it financially.
However, if your neighbor doesn’t participate in the costs of putting up the fence, it is not considered a common fence-it’s the exclusive property of the builder. Also, if a fence is not built on a property line but is instead built on one landowner’s own property, then that fence is the exclusive property of that landowner.
Neighboring landowners can also agree to maintain a portion of the fence that creates a boundary between their properties. Such an agreement is legally binding, and can be enforced, and can be really useful for neighbors to make their rights and obligations specific and put them down in writing to protect both their rights, and their relationship from strain.
Main Takeaway: If your property borders a highway, you are legally required to build and maintain a fence. In the case that your property borders that of another landowner, you can either agree to maintain the border fence together, or one property owner takes sole responsibility.
Responsibility for Fencing Around Oil and Gas OperationsAs we’ve discussed in a previous article (link here), Texas oil and gas companies have the right to enter private property under “reasonable right to use the surface” law. What’s important for landowners to know, however, is that those companies are under no legal obligation to put a fence around their operations to protect the surface owner’s animals or livestock.
Whoever it is that owns the mineral estate, they do not need your permission or payment to conduct their business. The only thing the operator of an oil or gas lease owes the owner of the surface, who is pasturing animals, is to not injure the animals intentionally, willfully or wantonly.
This is of obvious importance to you if you own property where an oil or gas company is conducting business. If your livestock are injured, you might have legal claims if there is evidence that they acted in an intentional, willful or wanton manner, if they acted negligently in doing their work or if they used more of the surface than was absolutely necessary. Those things can be difficult to prove, and so as a landowner it’s in your interest to include contractual provisions that will require the oil or gas operator to fence off their operations to protect your livestock.
Main Takeaway: The best course of action to protect yourself and your animals from injury when an oil or gas company is operating on your property is to include legal provision in your written agreement that they put a fence around their operation.