CHAPTER 70. FENCES. Section numbers to notes refer to the Revised Statutes of 1914 and sections herein. 7364a. Turkeys, chickens, ducks and 7379. Cost apportioned, township trusgeese trespassing. tee building, lawful fence. [Acts 1921, p. 119. In force May 31, 1921.] 7364a. Turkeys, chickens, ducks and geese trespassing.-1. No person owning or harboring any turkeys, chickens, ducks or geese shall permit such turkeys, chickens, ducks or geese to wander upon, feed upon or pasture upon the lands of another, and if the owner of such turkeys, chickens, ducks or geese shall fail or refuse, after five days' notice in writing from the owner or tenant of the land, to keep such turkeys, chickens, ducks or geese from said owner's premises, the owner of said turkeys, chickens, ducks or geese shall be liable in an action of trespass for any damages such turkeys, chickens, ducks or geese may cause. Any person who shall fail or refuse to comply with the provisions of this act shall be fined in any sum not more than ten dollars ($10) nor less than one dollar ($1) for each and every day that such turkeys, chickens, ducks or geese are allowed to trespass after such written notice shall have been given. [Acts 1915, p. 638. In force April 26, 1915.] 7379. Costs apportioned, township trustee building, lawful fence.3. That all partition fences shall be built, rebuilt, kept in repair at the cost of the several landowners whose lands are enclosed or separated by such fences equally according to the number of rods or proportion thereof such landowner may have along such line of fence whether his, her or their title be in fee simple, or a life estate. That if any landowner as above defined, shall fail or refuse to compensate for building, rebuilding or repairing his, her or their proportion of fence, any landowner interested in such fence after having built, rebuilt or repaired his proportion of such fence, shall give to the defaulting landowner, his agent, or tenant twenty days' notice to build, rebuild or repair his proportion of such fence as the case may be, and if such defaulting party shall fail to build, rebuild or repair such fence within said time, such landowner shall then notify the township trustee of the township wherein said lands are located of such fact: Pro vided, That where the fence sought to be established, rebuilt or repaired, is on a township line, in such case the owner or owners shall notify the trustee of the adjoining township to the one in which the defaulting party lives of the improvement he or they may desire made, and such trustee shall have jurisdiction of such matter, unless disqualified as hereinafter provided, estimate the costs for such fence, building, rebuilding or repairing the same, as the case may be, and within a reasonable time after being notified such trustee shall make out a statement and notify such defaulting party of the probable cost of building, rebuilding or repairing such fence, as the case may be, and if after twenty days, said fence is not built, rebuilt or repaired by such defaulting landowners, such trustee of such township shall build, rebuild or repair such fence as the case may be: Provided, That such trustee shall use only the materials for such fences as is most commonly used by the farmers of such community: Provided, further, That if such trustee of such township is disqualified to act, then it shall be lawful and it shall be the duty of the trustee of the adjoining township, residing nearest to where such fence is situated to act in the premises upon receiving a notice so to do by any landowner interested therein: Also, Provided further, That a lawful partition fence shall be a straight board and wire fence or a straight wire or a straight board fence or a picket fence four feet high, a straight rail fence four and one-half feet high, a worm rail fence five feet high and all fences of every structure to be sufficiently tight and strong to hold hogs, sheep, cattle, mules and horses: Provided further, That if a ditch or creek crosses the division land [line] between two landowners, necessitating additional expense in the maintenance of the part over such stream, if such landowners can not agree upon the proportionate share of each, the township trustee shall appoint three disinterested citizens who shall apportion the partition fence to be built by each landowner: Provided, further, That any trustee related to any of the parties interested or if an interested party himself, then it shall be lawful for the trustee of any other township residing nearest to where such fence is situated to act in the premises. Provided, further, That in all cases where a ditch, creek, forms, covers, or marks the dividing line or any part thereof of the lands of separate and different landowners of this state so that partition fences such as are required and provided for in this act can not be built and maintained on such dividing line, then and in all such cases such partition fences shall be built and maintained under the provisions of this act as near to such boundary line as may be, and each landowner shall be required on his own land to build a separate partition fence, and to maintain the same at his own cost. Provided further, That in all cases where partition fences such as are required and provided for in this act, cross any ditch or creek and by reason thereof it is impracticable to construct or maintain that portion of said fence as would cross said ditch or creek, as a stationary fence, then and in all such cases there shall be erected in lieu of such portion of said fence across said ditch or creek, and as a part of such partition fence, flood-gates or other similar structures, sufficiently high, tight, and strong to turn hogs, sheep, cattle, mules and horses or other domestic animals, and so constructed as to swing up in times of high water. And such flood-gates or other similar structures shall be so built and constructed as to connect continuously such partition fences. And provided further, That if the building and maintenance of such floodgate or other similar structure occasions additional expenses, and such landowners can not agree upon the character of flood-gate or other similar structure, or upon the proportionate share of the cost thereof to be borne by each, the township trustee upon notice in writing from either landowner of such disagreement and the nature thereof, shall appoint three disinterested citizens, of said township, who shall determine the kind of structure and apportion the cost of such flood-gate or other structure between such landowners, taking into consideration the parts and portion of such fence being maintained by each landowner. And the determination of a majority of such arbitrators of any matter or matters submitted to them shall be final and binding on each landowner. The compensation of such arbitrators shall be two dollars each, which shall be paid by said landowners in the proportion they are ordered to bear the expense of such gate or structure. In case either or both of such landowners shall fail to construct or compensate for constructing the structure determined upon by such arbitrators in the proportion determined, within thirty days from such determination, such township trustee shall proceed at once to construct such gate or structure and collect the cost thereof, including the compensation of such arbitrators, from such defaulting landowner or landowners in the same manner as is provided for ordinary partition fences. And such flood-gate or other structure shall be repaired, rebuilt or replaced in accordance with the determination of said arbitrators. This act amends section 7379 of the Revised Statutes of 1914. If a personal judgment is rendered against the owner of land to recover his share of the cost of constructing a partition fence, the judgment is not void for that reason and the collection thereof can not be enjoined. Schilling v. Quinn, 178 Ind. 443, 99 N. E. 740. A township trustee is not required, and can not be compelled by mandamus, to construct a floodgate across a stream as part of a partition fence. State ex rel. v. Burkit, 182 Ind. 665, 108 N. E. 113. In an action against a landowner to recover his share of the cost of constructing a partition fence, the burden is upon him to show that his lands were within the exceptions mentioned in the statute. Deemer v. Knight, 55 App. 397, 103 N. E. 868. This section does not make a township trustee a tribunal to determine the existence of a contract between adjoining landowners regarding the maintenance of a partition fence. Bartlett v. State ex rel. Hamilton, 186 Ind. 16, 114 N. E. 692. ARTICLE 4-HEDGE FENCES. [Acts 1921, p. 704. In force May 31, 1921.] 7401. Trimming of hedges.-1. That all hedge or live fences along the line of any highway within the State of Indiana shall be cut and trimmed down to the height of not to exceed five feet, once in each calendar year: Provided, That in all cases where such fences connect with a highway intersection, or adjacent to any curve where the view of the highway may be intercepted, or with any railway or interurban right-of-way, such hedges shall be trimmed and maintained at a height of not to exceed five feet above the level of the center of the traveled road bed in the highway adjoining said fences, and such altitude shall be maintained throughout the year for a distance of one hundred feet commencing at the intersection of the highway and continuing along the lines dividing such highways and the property adjoining and no other obstructions to the view except natural elevations of land shall be maintained at such points where said roads intersect exceeding the altitude of five feet above the center of such highways. This section amends section 7401, Revision of 1914. 7402. Duties of township trustee and superintendents.-2. It shall be the duty of the trustee of each township or the county highway superintendent, or the state highway commission, or other proper officer in control of the maintenance of said highways, between the first day of January and the first day of April of each year to examine all hedge or live fences along the highways and such other obstructions as described in section one of this act in their respective jurisdictions and if there shall be any hedge or live fences or other obstructions along such highways which have not been cut, trimmed down and maintained to the height of not to exceed five feet in the last calendar year, immediately preceding the first day of January, they shall give the owner or owners thereof written notice to cut or trim such hedge or live fence and to burn the brush trimmed therefrom or remove any other obstructions as hereinbefore described, such notice to be served by reading the same to said owner or owners, or by leaving a copy of the same at his or their usual place of residence: Provided, That if said owner or owners thereof be not residents of the township, county or state, where such hedge or live fence or other obstructions is located, said notice shall be served upon his or their agent or tenant if there be any residing in said township and if there be no agent or tenant of said owner or owners in said township then such notice shall be served by mailing a copy of same to said owner or owners directed to his or their last known postoffice and if such owner or owners, their agents or tenants do not proceed to cut and trim such fences and burn the brush trimmed therefrom or remove any such obstructions within ten days thereafter, in the manner heretofore provided, then such township trustee, county highway superintendent or state highway commission shall immediately cause such fences to be cut and trimmed or obstructions removed down to the height of not to exceed five feet and burn the brush trimmed therefrom, and all expenses so incurred shall be assessed against and shall become a lien upon such lands the same as road taxes. The township trustee, county highway superintendent or state highway commission having charge of the work shall prepare an itemized statement of the total cost of the work of removing such obstructions and shall sign the statement and certify the same to the county auditor of the county in which such lands are located. The county auditor shall place the same in the tax duplicates and it shall be the duty of the county treasurer to collect such costs so entered on the duplicates at the same time and in the same manner as road taxes are collected and he shall have authority to issue a receipt for road taxes unless such costs so entered on the duplicates be paid in full at the same time, and if such costs be not so paid when due shall become delinquent and shall bear the same interest and be subject to the same penalties and shall be collected at the same time and in the same manner as other unpaid and delinquent taxes. Nothing in this act contained shall be construed to apply to buildings of a substantial character which are located at the intersection of public highways. This section amends section 7402, Revision of 1914. [Acts 1921, p. 704. In force May 31, 1921.] 7404. Penalty for failure to perform duties.-4. Any township trustee, county highway superintendent or any member of the state highway commission or his subordinate officer who shall fail or neglect to perform his duties as laid down in this act shall be fined not more than twenty-five dollars or less than five dollars. This section amends section 7404 Revision of 1914. Section 4 of the above act repeals all laws and parts of laws in conflict. |