2017-10-10 / Front Page

Agricultural attorney explains Texas laws about fences

BY DAVID LOWE
DISPATCH RECORD


Agricultural attorney Jim Bradbury speaks about fence laws in Texas during the recent Lampasas County Farm Bureau annual meeting. 
DAVID LOWE | DISPATCH RECORD Agricultural attorney Jim Bradbury speaks about fence laws in Texas during the recent Lampasas County Farm Bureau annual meeting. DAVID LOWE | DISPATCH RECORD In a state known for its appreciation of property rights, fence laws are of great significance.

Agricultural attorney Jim Bradbury sought to explain key principles of Texas fence laws during a recent presentation in Lampasas.

Bradbury, whose firm has offices in Fort Worth and Austin, spoke during the recent Lampasas County Farm Bureau annual meeting.

The attorney explained the basics of fence requirements, liability if livestock wander onto a roadway, what to do if another person’s animals stray onto one’s property, and what landowners should know about building and maintaining fences.

Those same topics are addressed in the free booklet “Five Strands: A Landowner’s Guide to Fence Law in Texas,” which Bradbury wrote with assistant professor and Texas A&M AgriLife Extension Service Specialist Tiffany Lashmet, as well as Texas A&M University School of Law student Kyle Weldon.

While he sought to explain legal requirements about fences, Bradbury emphasized that knowing the law is only part of the way to pursue good dealings with other landowners about fences. Good communication and a neighborly spirit are the keys, he said.

“Everything you deal with in fence law probably is going to deal with a neighbor,” Bradbury said. “Solutions are made not by the law book. Solutions are based on relationships and having a cup of coffee.”

After offering that advice, Bradbury explained under what circumstances landowners are obligated to fence in their livestock.

In counties where voters have approved closed-range stock laws, people must contain their livestock within fences so animals do not run at large. Bradbury added that some counties’ closed-range laws apply only to certain species of livestock.

He also said closed-range laws may set standards for liability when livestock get out of a fenced area and run at large.

The lawyer advised people to contact the county clerk's or county judge's office to determine whether their county is open or closed-range. Because many closed-range elections took place in the 1930s or earlier, Bradbury said it can take a fair amount of research to determine a county's status.

While some counties in Texas remain open-range, there is an exception for land adjacent to highways, Bradbury said. In all parts of the state, those who own land adjacent to a U.S. or state highway must fence in their livestock to keep the animals off the roadway.

Bradbury advised those who own land near a highway to make sure the fences along highway frontage are in good condition. He said that can provide protection from liability if livestock do manage to escape and a motorist hits them.

An audience member asked Bradbury what happens if a vehicle hits a livestock fence and damages it. The attorney said in that case, the landowner is not liable for loose livestock for a short period of time. He advised people to fix a damaged fence within about two days of an accident.

“You may be able to get that car to pay for the repair of your fence, but the responsibility to make sure your animals are not getting out there, then that’s on you,” Bradbury said.

He emphasized that landowners do not have automatic liability for damages any time livestock escape from their property. A landowner is responsible for damages, however, if the person “knowingly permits” animals to run at large, the attorney said.

After discussing the obligation to fence in livestock and what happens if animals are on a roadway, Bradbury talked about procedures when livestock roam off their home property and onto another property.

He said a landowner cannot keep or shoot livestock – including exotic deer or other livestock that people hunt – that wander onto their property. Instead, a landowner must call the sheriff’s office so authorities can follow the estray procedures established by law.

Under estray law, if the owner does not redeem the animal, the sheriff’s office impounds the stray, posts public notice and sells it.

The “Five Strands” fence law booklet states that the Texas Agriculture Code requires a landowner who finds stray livestock on his or her property to report the stray animal “as soon as reasonably possible” to the sheriff’s office in the county where the animal is discovered.

Landowners who claim another person’s loose livestock without following the proper estray procedure through the sheriff’s office may be considered to have committed livestock theft, the “Five Strands” booklet adds.

Bradbury advised landowners to contact the sheriff’s office or a veterinarian if a loose animal appears likely to cause harm to one’s own livestock.

After discussing estray law, the attorney talked about building fences.

He said contrary to “coffee shop talk,” a landowner is not obligated to pay half the cost of a fence a neighbor builds along a boundary line. Some states require adjoining property owners to share the cost of a fence, but Texas does not, Bradbury said.

Recalling his earlier “pot of coffee” comment, the lawyer advised landowners to talk to their neighbors to see if all parties involved can reach a mutually satisfactory agreement about fence-building.

“If you’ve got a bad fence between you and a neighbor, go spend some time talking with them,” Bradbury said, “because you don’t have a law that says they have to [pay a portion of the fence cost]. See if you can figure out a way to work it out.”

The attorney said if only one neighbor pays for building a fence on a property line, the fence is that person's property.

“Now it's right on the boundary, so of course [the neighbor] gets the benefit of it, but when it comes down to whose property is the fence, it's your fence,” Bradbury said.

The lawyer also emphasized that people have no right to enter a neighbor's property to build a fence. As a result, he encouraged landowners to communicate clearly and get neighbors' permission in advance if they need to be on an adjoining property to build a fence.

In some cases, a landowner may build a fence just inside the property boundary. That prompts concerns for some property owners about an adjacent landowner claiming ownership of a piece of ground through the legal concept of adverse possession. Bradbury sought to alleviate those concerns, however, as he said it is very difficult for a person to prove adverse possession.

He said for extra reassurance, a property owner can let the neighbor know they still intend to use a strip of land, even if it is behind a fence-within-a-fence. Bradbury suggested calling the neighbor first and then sending a short letter explaining the intent to use one's property all the way to the boundary line. A person also may file the letter in official county records, the attorney said.

On other fence matters, Bradbury said:

• a person may trim tree branches that hang over his or her property line. The location of the trunk determines who owns the tree, according to the “Five Strands” booklet. A neighbor may trim the branches of trees or shrubs on his or her property “as long as no damage to the other adjoining landowner occurs,” the booklet adds.

• a person who has the right to use an easement has the right to maintain it.

• the survey line, not the fence line, is the actual property boundary.

• oil and gas companies have no legal obligation to install fences around their operations. Nevertheless, Bradbury said it is a good idea for landowners to seek an agreement to have a fence built around oil and gas operations. He noted a fence can protect energy companies from liability if livestock get into a work area and get hurt.

On the topic of water rights, Bradbury commented about the Texas Supreme Court's ruling in the Coyote Lake Ranch LLC v. City of Lubbock case. The attorney said in a unanimous decision, the court ruled that the accommodations doctrine -- long applied to oil and gas matters -- also applies when the groundwater and surface rights on a piece of land have different owners.

Bradbury said landowners benefit from the ruling that groundwater owners must accommodate the surface owner's uses of the property. He said the more important result of the case, however, is the Supreme Court's statement that groundwater rights, legally speaking, are dominant to surface rights -- just as mineral rights are dominant. The attorney said that means groundwater users have the right to use the surface of a property -- without paying the surface owner -- to produce groundwater.

As a result, Bradbury urged those who buy and sell land to pay attention not just to who owns the mineral rights but also who owns the groundwater rights.

“Because there are lots of interests out there who are buying tracts of property across the state, severing the groundwater off of that, and then they'll put the surface back on the market,” the lawyer said.

He said those who own a ranch and have retained the groundwater rights have no reason to worry.

“But if you do buy and sell pieces of property ... you're always looking to see who own the minerals,” he added. “You [also] need to be looking and determine, ‘Is the groundwater there, and who owns the groundwater?’ ”

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