Candace Smith: Is Your Fence Your Actual Boundary Line?

Is Your Fence Your Actual Boundary Line?

Candace Smith Steptoe & Johnson, PLLC

If you are a cattle owner, you likely have a fence around your property. You might have installed the fence, it may have already existed when you bought the property, or your neighbor may have built the fence. Regardless of who installed the fence, you should make sure that the fence is in the proper location. This is because a fence can be one factor of many that a court considers when someone claims to have acquired another’s land through the theory of adverse possession. Essentially, adverse possession allows someone who has openly and exclusively possessed property for at least fifteen years in a row to take title to that property away from the record owner (such as the deed holder). The theory is built on the idea that the record owner had notice that someone else was claiming to own the property and should have acted before the fifteen-year period expired. There are several requirements that must be met before a court will find that someone has sufficiently possessed property to do so. However, one type of evidence courts will consider is whether the person claiming adverse possession put a fence on the record owner’s land.

In Mudwilder v. Claxton, Claxton sued claiming that he had taken ownership of a small strip of land from the Mudwilders by adverse possession. Mudwilder v. Claxton, 301 S.W.2d 3 (Ky. 1957). The strip of land at issue was located between where Claxton’s actual boundary ended and a fence that was on the Mudwilders’ original property. Claxton presented evidence that he had used his field and the strip at issue as pasture land for cattle; livestock grazed the strip of land; Claxton used the fence to enclose his cattle; and he had strung barbed wire along the fence to keep in the cattle. On the other hand, the Mudwilders did not use the strip of land at all, other than to occasionally cut down a Christmas tree. As a result, the Court found that Claxton “openly treated the property as his own, and utilized it continuously for the purposes for which the land was best suited—pasturing and timber-cutting.” Id. at 4. Because of this and other factors, the Court ruled that Claxton’s “possession [of the strip of land] ripened into title after the passage of 15 years.” Id. Therefore, while a fence alone might not be enough to create adverse possession, the use of a fence plus other factors like using the property up to the fence line, can be evidence that supports adverse possession. To avoid a neighbor potentially claiming your land by adverse possession, it is important that you ensure any fences around your property are in the correct location. If you suspect that your neighbor is placing a fence on land that you own, you should act promptly and not wait until the fifteen-year period expires. Again, there are many steps that must be followed for someone to take property by adverse possession. If you suspect a fence is in the wrong location, an attorney can help advise you as to your correct boundary line, and help you avoid having your property taken by adverse possession.

These materials are public information and have been prepared solely for educational purposes. These materials reflect only the personal views of the authors and are not individualized legal advice. It is understood that each case is fact-specific, and that the appropriate solution in any case will vary. Therefore, these materials may or may not be relevant to any particular situation. Thus, the authors and Steptoe & Johnson PLLC cannot be bound either philosophically or as representatives of their various present and future clients to the comments expressed in these materials. The presentation of these materials does not establish any form of attorney-client relationship with the authors or Steptoe & Johnson PLLC. While every attempt was made to ensure that these materials are accurate, errors or omissions may be contained therein, for which any liability is disclaimed.