Cross References.

Animals running at large,§ 25-2101 et seq.

Coterminous owners to maintain fences between them,§ 55-312.

Estrays,§ 25-2301 et seq.

Herd districts,§ 25-2401 et seq.

Liens on trespassing stock,§ 25-2201.

Disrepair.

Evidence sufficiently supported trial court’s findings that, at the time plaintiff’s automobile struck defendant’s calf on the highway, the fence, owned and maintained by defendant to inclose his cattle, was in disrepair and did not conform to the standards prescribed for lawful fences. Soran v. Schoessler, 87 Idaho 425, 394 P.2d 160 (1964), overruled on other grounds, Moreland v. Adams, 143 Idaho 687, 152 P.3d 558 (2007).

Fence Posts.

A finding that fence posts of defendant appellant, who was sued for damages sustained by plaintiff’s automobile when it struck defendant’s calf along the highway, “were not set substantially in the ground and were rotted at the ground causing many posts to lean perceptibly,” was sustained by the evidence. Soran v. Schoessler, 87 Idaho 425, 394 P.2d 160 (1964), overruled on other grounds, Moreland v. Adams, 143 Idaho 687, 152 P.3d 558 (2007).

Instructions.

In suit by motorist to recover for damage occasioned by a nighttime collision with a cow roaming a heavily traveled highway, the jury should have been instructed on the doctrine of res ipsa loquitur, that doctrine having application in view of lack of sufficient explanation of failure to keep cow inclosed and lack of showing fence through which cow broke conformed to the legal requirements of a fence. O’Connor v. Black, 80 Idaho 96, 326 P.2d 376 (1958).

Negligence.

Evidence sustained trial court’s conclusion that defendant, whose calf was struck by plaintiff’s automobile, failed to act as a reasonable and prudent person with respect to his pasture fence and in allowing his livestock on the public highway, that plaintiff acted prudently, and that defendant’s negligence was the proximate cause of plaintiff’s damage. Soran v. Schoessler, 87 Idaho 425, 394 P.2d 160 (1964), overruled on other grounds, Moreland v. Adams, 143 Idaho 687, 152 P.3d 558 (2007).

Purpose.

The legal fence laws of this state are “fencing out” statutes and recognize the rancher’s right to allow cattle to roam. Maguire v. Yanke, 99 Idaho 829, 590 P.2d 85 (1978).

Railroad Fence.

In suit by plaintiff against railroad to recover damages for loss of horse and colt on defendant’s right of way at a spot where the only barrier was a 15 foot fill, evidence that the defendant had erected a fence shortly after the accident where the accident had occurred was material for the purpose of showing antecedent negligence on defendant’s part, and defendant’s recognition of a defect it was bound to remedy. Zenier v. Spokane Int’l R.R., 78 Idaho 196, 300 P.2d 494 (1956).

Am. Jur. 2d.

35A Am. Jur. 2d Fences, § 1 et seq.

C.J.S.

§ 35-102. Lawful fences described.

Lawful fences are described as follows:

1. If made of stone, four feet (4′) high, two feet (2′) base, and one foot (1′) thick on top.
2. If it be a worm fence, the rails must be well laid and at least four feet (4′) high.
3. If made of posts, with boards, rails or poles, the posts must be well set in the ground and not more than eight feet (8′) apart, with not less than three (3) six-inch (6″) boards, or rails, or poles not less than two and one-half inches (2 ½″) in diameter at the small end; if four (4) poles are used, they must not be less than two inches (2″) in diameter at the small end. The top board, rail or pole must not be less than four feet (4′) from the ground, the spaces well divided, and the boards, rails or poles securely fastened to the posts; if poles not less than three inches (3″) in diameter at the small end are used, the posts may be set twelve feet (12′) apart.
4. If wire be used in the construction of fences, the posts must not be more than twenty-four feet (24′) apart, set substantially in the ground, and three (3) substantial stays must be placed at equal distances between the posts, and all wires must be securely fastened to each post and stay with not less than three (3) barbed wires, or four (4) coiled spring wires of not less than number nine (9) gauge. The bottom wire shall be not more than twenty-one inches (21″) from the ground, and the other wires a proper distance apart. The wires must be well stretched and the fence not less than forty-seven inches (47″) high. If all woven wire fencing is used, the top and bottom wire must be not less than number nine (9) gauge, or two (2) number thirteen (13) gauge wires twisted together, with intermediate bars not less than twelve inches (12″) apart and of not less than number fourteen (14) gauge wire, and the stay wires not more than twelve inches (12″) apart, and the top wire not less than forty-seven inches (47″) from the ground. If woven wire less in height is used, it must be brought to the height of forty-seven inches (47″) by additional barbed wires, or coiled spring wire of not less than number nine (9) gauge, and not more than twelve inches (12″) between the wires: provided, that if barbed wire only is used, and the posts are not more than sixteen feet (16′) apart, no stays need be used. Provided further that the minimum forty-seven inch (47″) fence height specified above may be reduced to forty-two inches (42″) for right-of-way fences on the state highway system when mutually agreed by the Idaho director of department of transportation and the director of the Idaho fish and game department as necessary to accommodate big game animals at major migration crossings.
5. If made in whole or in part of brush, ditch, pickets, hedge, or any other materials, the fence, to be lawful, must be equal in strength and capacity to turn stock, to the fence above described.
6. All fences in good repair, of suitable material and of every description, and all creeks, brooks, rivers, sloughs, ponds, bluffs, hills or mountains, that present a suitable obstruction to stock are deemed lawful fences.

History.

R.S., § 1301; am. 1901, p. 207, § 1; am. 1907, p. 132, § 1; reen. R.C. & C.L., § 1265; C.S., § 1957; I.C.A.,§ 34-102; am. 1967, ch. 261, § 1, p. 731.

Cross References.

Director of department of fish and game,§ 36-106.

Director of department of transportation,§ 40-503.

Lien on livestock breaking into inclosure,§ 25-2201.

Compiler’s Notes.

The name of state highway engineer in subdivision 4 has been changed to director of department of transportation on authority of S.L. 1974, ch. 286, § 1 and S.L. 1974, ch. 12, § 13.

Disrepair.

Evidence sufficiently supported trial court’s finding that, at the time plaintiff’s automobile struck defendant’s calf on the highway, the fence, owned and maintained by defendant to inclose his cattle was in disrepair and did not conform to the standards prescribed for lawful fences. Soran v. Schoessler, 87 Idaho 425, 394 P.2d 160 (1964), overruled on other grounds, Moreland v. Adams, 143 Idaho 687, 152 P.3d 558 (2007).

Fence Posts.

A finding that fence posts of defendant appellant, who was sued for damages sustained by plaintiff’s automobile when it struck defendant’s calf along the highway, “were not set substantially in the ground and were rotted at the ground causing many posts to lean perceptibly,” were sustained by the evidence. Soran v. Schoessler, 87 Idaho 425, 394 P.2d 160 (1964), overruled on other grounds, Moreland v. Adams, 143 Idaho 687, 152 P.3d 558 (2007).

Instructions.

In suit by motorist to recover for damage occasioned by a nighttime collision with a cow roaming a heavily traveled highway, the jury should have been instructed on the doctrine of res ipsa loquitur, that doctrine having application in view of lack of sufficient explanation of failure to keep cow inclosed and lack of showing fence through which cow broke conformed to the legal requirements of a fence. O’Connor v. Black, 80 Idaho 96, 326 P.2d 376 (1958).

Negligence.

Evidence sustained trial court’s conclusion that defendant, whose calf was struck by plaintiff’s automobile, failed to act as a reasonable and prudent person with respect to his pasture fence and in allowing his livestock on the public highway, that plaintiff acted prudently, and that defendant’s negligence was the proximate cause of plaintiff’s damage. Soran v. Schoessler, 87 Idaho 425, 394 P.2d 160 (1964), overruled on other grounds, Moreland v. Adams, 143 Idaho 687, 152 P.3d 558 (2007).

Railroad Fence.

In suit by plaintiff against railroad to recover damages for loss of horse and colt on defendant’s right of way at a spot where the only barrier was a 15 foot fill, evidence that the defendant had erected a fence shortly after the accident where the accident had occurred was material for the purpose of showing antecedent negligence on defendant’s part, and defendant’s recognition of a defect it was bound to remedy. Zenier v. Spokane Int’l R.R., 78 Idaho 196, 300 P.2d 494 (1956).

Cross References.

Coterminous owners to maintain fences between them,§ 55-312.

Partition of decedents’ estates,§ 15-3-911.

Partition proceedings,§ 6-501 et seq.

Railroad rights of way, damages in eminent domain proceedings to include costs of fences and cattle-guards,§ 7-711; bond for payment authorized,§ 7-714.

Trespass of animals,§ 25-2201 et seq.

Failure to Maintain.

Where erection and maintenance of fence is provided for by agreement which has run for some years, upon failure of one of the parties to keep up fence as agreed, other party may resort to remedy provided by statute or action for breach of contract. Tsuboi v. Cohn, 40 Idaho 102, 231 P. 708 (1924).

Limitation.

Prerequisite.

This section does not allow the erection of a statutory fence on another’s property. Porter v. Bassett, 146 Idaho 399, 195 P.3d 1212 (2008). Prerequisite.

A prerequisite for the application of this section is that the adjoining parcels of land be enclosed by one fence. Where property owners claimed that the parcels were enclosed by one fence, but presented no evidence of such, this section does not apply. Porter v. Bassett, 146 Idaho 399, 195 P.3d 1212 (2008).

Cross References.

Coterminous owners to maintain fences between them,§ 55-312.

Compiler’s Notes.

The bracketed insertion in the last sentence was added by the compiler to conform to the statutory citation style.

Failure to Maintain.

Where erection and maintenance of fence is provided for by agreement which has run for some years, upon failure of one of parties to keep up fence as agreed, other party may resort to remedy provided by statute or action for breach of contract. Tsuboi v. Cohn, 40 Idaho 102, 231 P. 708 (1924).

Am. Jur. 2d.

C.J.S.

Cross References.

Report of viewers to conform to law,§ 35-104.

Amendments.

The 2012 amendment, by ch. 20, substituted “magistrate judge” for “justice of the peace of the township, if there be one, if not, to the probate judge” near the middle of the introductory paragraph.

Compiler’s Notes.

The bracketed insertion near the end of the section was added by the compiler to conform to the statutory citation style.

Legal Boundary.

This section did not require the landowner to move the fence because there was no evidence the fence was erected in its current location by accident; although the fence encroached on the neighbor’s deeded property, it now marked the legal boundary between the parties. Flying Elk Inv., LLC v. Cornwall, 149 Idaho 9, 232 P.3d 330 (2010).

Compiler’s Notes.

The bracketed insertion near the middle of the section was added by the compiler to conform to the statutory citation style.

Compiler’s Notes.

The bracketed insertion near the middle of the section was added by the compiler to conform to the statutory citation style.

ALR.

§ 35-304. Procedure in case of unknown owner.

It shall be the duty of any sheriff, deputy sheriff or constable who by personal knowledge or otherwise knowing of any barbed wire or barbed wire fence being so strewn or down as provided in section 35-301[, Idaho Code], on any ranch or fence which has been abandoned, and the owner of such fence or ranch is unknown or has left the state so that notice cannot be served on such person, firm or corporation to take or cause to be taken up, such barbed wire or barbed wire fence, and sell the same at public auction to the highest bidder and the proceeds shall go to cover the expense of the removal of said barbed wire or barbed wire fence, and if there be any money left over from such sale, it shall be turned in to the county treasurer of the county wherein such fence or ranch is located.

History.

1915, ch. 123, § 4, p. 269; reen C.L. 114:4; C.S., § 2599; I.C.A.,§ 34-304.

Compiler’s Notes.

The bracketed insertion near the middle of the section was added by the compiler to conform to the statutory citation style.