CHAPTER 9. PARTITION FENCES
IC 32-26-9
Chapter 9. Partition Fences
IC 32-26-9-0.5
"Agricultural land"; nonapplicability of chapter
Sec. 0.5. (a) As used in this section, "agricultural land" meansland that is:
(1) zoned or otherwise designated as agricultural land;
(2) used for growing crops or raising livestock; or
(3) reserved for conservation.
(b) This chapter does not apply to a fence that separates two (2)adjoining parcels of property unless at least one (1) of the adjoiningparcels is agricultural land.
As added by P.L.57-2003, SEC.1.
IC 32-26-9-1
Existing fences
Sec. 1. A fence that is used by adjoining property owners as apartition fence, unless otherwise agreed upon by the property owners,is considered a partition fence and shall be repaired, maintained, andpaid for as provided under this chapter.
As added by P.L.2-2002, SEC.11.
IC 32-26-9-2
Lands outside or abutting municipal boundary
Sec. 2. (a) The owner of a property that:
(1) is located outside;
(2) abuts; or
(3) is adjacent to;
the boundary of the corporate limits of a town or city shall separatethe owner's property from adjoining properties by a partition fenceconstructed upon the line dividing or separating the propertiesregardless of when the properties were divided.
(b) Except as otherwise provided in this chapter, and if a divisionof the partition fence has not been made between the property ownersfor the building, repairing, or rebuilding of the partition fence:
(1) for a partition fence built along a property line than runsfrom north to south:
(A) the owner whose property lies to the east of the fenceshall build the north half of the fence; and
(B) the owner whose land lies to the west of the fence shallbuild the south half of the fence; and
(2) for a partition fence built along a property line that runsfrom east to west:
(A) the owner whose property lies north of the fence shallbuild the west half of the fence; and
(B) the owner whose property lies to the south of the fenceshall build the east half of the fence.
(c) Notwithstanding subsection (b), if either property owner hasconstructed one-half (1/2) of a partition fence that is not the portion
required under subsection (b) and has maintained that portion of thepartition fence for a period of not less than five (5) years, theproperty owner may continue to maintain the portion of the fence.
(d) If a property owner fails to build, rebuild, or repair a partitionfence after receiving notice under this chapter, the township trusteeof the township in which the property is located shall build, rebuild,or repair the fence as provided under this chapter.
As added by P.L.2-2002, SEC.11.
IC 32-26-9-3
Defaulting landowner; description of lawful partition fence;floodgate across watercourse
Sec. 3. (a) A partition fence shall be built, rebuilt, and kept inrepair at the cost of the property owners whose properties areenclosed or separated by the fences proportionately according to thenumber of rods or proportion of the fence the property owner ownsalong the line of the fence, whether the property owner's title is a feesimple or a life estate.
(b) If a property owner fails or refuses to compensate for building,rebuilding, or repairing the property owner's portion of a partitionfence, another property owner who is interested in the fence, afterhaving built, rebuilt, or repaired the property owner's portion of thefence, shall give to the defaulting property owner or the defaultingproperty owner's agent or tenant twenty (20) days notice to build,rebuild, or repair the defaulting property owner's portion of the fence.If the defaulting property owner or the defaulting property owner'sagent or tenant fails to build, rebuild, or repair the fence withintwenty (20) days, the complaining property owner shall notify thetownship trustee of the township in which the properties are locatedof the default.
(c) This subsection applies if the fence sought to be established,rebuilt, or repaired is on a township line. Unless disqualified undersubsection (h), the complaining property owner shall notify thetrustee of the township in which the property of the complainingproperty owner is located of the default under subsection (b), and thetrustee has jurisdiction in the matter.
(d) The township trustee who receives a complaint under thissection shall:
(1) estimate the costs for building, rebuilding, or repairing thepartition fence; and
(2) within a reasonable time after receiving the complaint, makeout a statement and notify the defaulting property owner of theprobable cost of building, rebuilding, or repairing the fence.
If twenty (20) days after receiving a notice under this subsection thedefaulting property owner has not built, rebuilt, or repaired the fence,the trustee shall build or repair the fence. The trustee may use onlythe materials for the fences that are most commonly used by thefarmers of the community.
(e) If the trustee of a township is disqualified to act undersubsection (h), the trustee of an adjoining township who resides
nearest to where the fence is located shall act on the complaint uponreceiving a notice by a property owner who is interested in the fence.
(f) A lawful partition fence is any one (1) of the following that issufficiently tight and strong to hold cattle, hogs, horses, mules, andsheep:
(1) A straight board and wire fence, a straight wire fence, astraight board fence, or a picket fence four (4) feet high.
(2) A straight rail fence four and one-half (4 1/2) feet high.
(3) A worm rail fence five (5) feet high.
(g) This subsection applies if a ditch or creek crosses the divisionline between two (2) property owners, causing additional expense inthe maintenance of the part over the stream. If the property ownerscannot agree upon the proportionate share of each property owner,the township trustee shall appoint three (3) disinterested citizens whoshall apportion the partition fence to be built by each property owner.
(h) If a township trustee is:
(1) related to any of the interested property owners; or
(2) an interested property owner;
the trustee of any other township who resides nearest to where thefence is located shall act under this chapter.
(i) This subsection applies if a ditch or creek forms, covers, ormarks the dividing line or a part of the dividing line between theproperties of separate and different property owners so that partitionfences required under this chapter cannot be built and maintained onthe dividing line. The partition fences shall be built and maintainedunder this chapter as near to the boundary line as is practical, andeach property owner shall build a separate partition fence on theproperty owner's property and maintain the fence at the propertyowner's cost.
(j) This subsection applies where a partition fence required underthis chapter crosses a ditch or creek and it is impracticable toconstruct or maintain that portion of the fence that crosses the ditchor creek as a stationary fence. Instead of the portion of the fence thatwould cross the ditch or creek, there shall be constructed, as a partof the partition fence, floodgates or other similar structures that aresufficiently high, tight, and strong to turn hogs, sheep, cattle, mules,and horses or other domestic animals. The floodgates or other similarstructures shall be constructed to swing up in times of high water andto connect continuously with the partition fences.
(k) This subsection applies if the building and maintenance of thefloodgates or other similar structure required under subsection (j)causes additional expenses and the property owners cannot agreeupon the character of floodgates or other similar structure, or uponthe proportionate share of the cost to be borne by each propertyowner. The township trustee, upon notice in writing from eitherproperty owner of a disagreement and the nature of the disagreement,shall appoint three (3) disinterested citizens of the township whoshall determine the kind of structure and apportion the cost of thefloodgate or other structure between the property owners, taking intoconsideration the parts of the fence being maintained by each
property owner.
(l) The determination of a majority of the arbitrators of any matteror matters submitted to them under this section is final and bindingon each property owner. The compensation of the arbitrators is twodollars ($2) each, which shall be paid by the property owners in theproportion each property owner is ordered to bear the expense of agate or structure.
(m) This subsection applies if either or both of the propertyowners fail to construct or compensate for constructing the structuredetermined upon by the arbitrators in the proportion determinedwithin thirty (30) days after the determination. The township trusteeshall proceed at once to construct the gate or structure and collect thecost of the gate or structure, including the compensation of thearbitrators, from the defaulting property owner in the same manneras is provided for ordinary partition fences. The floodgate or otherstructure shall be repaired, rebuilt, or replaced according to thedetermination of the arbitrators.
As added by P.L.2-2002, SEC.11.
IC 32-26-9-4
Expenses; construction and maintenance by township
Sec. 4. (a) As soon as the township trustee has had a fence built,rebuilt, or repaired under this chapter, the trustee shall make out acertified statement in triplicate of the actual cost incurred by thetrustee in the building, rebuilding, or repairing the fence. One (1)copy must be handed to or mailed to the property owner affected bythe work, one (1) copy must be retained by the trustee as a record forthe township, and one (1) copy must be filed in the auditor's officeof the county in which the fence is located and in which the propertyof the property owner affected by the work is located. At the sametime the trustee shall also file with the county auditor a claim againstthe county for the amount shown in the statement filed with thecounty auditor.
(b) The county auditor shall:
(1) examine the claims and statement as other claims areexamined; and
(2) present the claims and statements to the board of countycommissioners at the next regular meeting.
Unless there is an apparent error in the statement or claim, the boardof county commissioners shall make allowance, and the countyauditor shall issue a warrant for the amount claimed to the townshiptrustee submitting the claim out of the county general fund withoutan appropriation being made by the county council.
(c) The amount paid out of the county general fund undersubsection (b) shall be:
(1) placed by the county auditor on the tax duplicate against theproperty of the property owner affected by the work;
(2) collected as taxes are collected; and
(3) when collected, paid into the county general fund.
As added by P.L.2-2002, SEC.11.
IC 32-26-9-5
Construction and maintenance by township; personal liability oftrustees
Sec. 5. The township trustee has no personal liability for acontract the trustee makes under this chapter for building, rebuilding,or repairing fences under this chapter. The contractor shall receivepayment from the township funds, which shall be reimbursed whenthe contract price is paid into the county treasury.
As added by P.L.2-2002, SEC.11.
IC 32-26-9-6
Construction and application of law
Sec. 6. This chapter shall be liberally construed in favor of theobjects and purposes for which it is enacted and shall apply to allagricultural land, whether enclosed or unenclosed, cultivated oruncultivated, wild or wood lot.
As added by P.L.2-2002, SEC.11. Amended by P.L.57-2003, SEC.2.