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Volume 5 - Opinions of Counsel SBEA No. 11

Opinions of Counsel index

Assessor (powers and duties) (fence viewing) (procedure) - Real Property Tax Law, § 1522; Town Law, §§ 40, 300 et seq.:

Fence viewing is a duty of the assessor. Following a Court of Appeals decision and a subsequent statutory amendment, the fence viewing procedure outlined in Article 18 of the Town Law is applicable only when two adjoining land owners both keep animals on their land.

Our opinion has been requested concerning the application of the fence viewing law (Town Law, Article 18).

Section 40 of the Town Law provides that “[T]he assessors shall perform all the duties and shall exercise all the powers hereinafter imposed and conferred upon fence viewers. In a town having a sole appointed assessor, [Real Property Tax Law, § 1522] the assessor and the members of the town board shall act as fence viewers.” The general provisions concerned with the powers and duties of fence viewers are contained in Article 18 of the Town Law. Said article was designed and enacted in order to eliminate trespass actions between adjoining property owners by making such owners proportionately responsible for the control of straying animals.

At common law (i.e., prior to the passage of any laws regarding this matter), an owner was not required to fence his land against straying animals, and the owner of farm animals was responsible for any trespass which his animals committed upon lands of another. However, in New York State, for more than a century there have been statues restricting and altering the common law liabilities of adjoining owners.

To begin, section 300 of the Town Law directs that:

Each owner of two adjoining tracts of land, except when they otherwise agree, shall make and maintain a just and equitable portion of the division fence between such lands, unless both of said adjoining owners shall agree to let their said lands lie open, along the division line, to the use of all animals which may be lawfully upon the lands of either; provided, however, that the owner of an adjoining tract of land who does not keep animals thereon shall not be obligated or liable for erecting, maintaining or repairing such a division fence under this article . . . . (emphasis added)

Prior to the addition of the emphasized clause, this section had been construed to require contribution by both owners despite the fact that one of the owners did not keep livestock. However, recently the Court of Appeals affirmed a decision in which the Appellate Division in the Fourth Department held the provision to be unconstitutional (Sweeney v. Murphy, 39 App. Div.2d 306, 334 N.Y.S.2d 239, aff’d, 31 N.Y.2d 1042, 294 N.E.2d 855, 342 N.Y.S.2d 70). The effect of this decision was to make the provisions of Article 18 inapplicable to situations in which one (or both) of the owners does not keep livestock. The Legislature thereafter added the above-emphasized clause (L.1974, c.560).

Thus, if both owners keep livestock, then they each must contribute to the maintenance of a fence between their lands, unless they both agree to let their lands lie open. If such agreement is made, then neither owner “shall be liable to the other in any action or proceeding for any damages done by animals lawfully upon the other’s premises going upon the lands so lying open . . .” (§ 301).

The procedures for determining the rights and liabilities of the parties (as contained in Article 18) include the selection of the fence viewers (§§ 303 and 40), the determination of each owner’s liability (§ 303), the duty of the landowners to construct and repair the fence (§§ 305 and 308), and the liabilities which arise when damage occurs as a result of the owner’s failure to contribute to the cost of constructing the fence (§§ 305, 307 and 308). There are also sections which deal with the type of fence which is required and with the rights and liabilities which result from straying animals.

When a dispute concerning a division fence arises, the law provides that it shall be settled by agreement of any two of the fence viewers of the town, one of whom shall be chosen by each party (if the two fence viewers cannot agree, then they shall select a third to act with them). The law, section 303 of the Town Law, also provides that if, after eight days’ notice, either party neglects to choose a fence viewer, then the other party may select both fence viewers. Section 303 also provides that:

the decision of any two shall be reduced to writing, and contain a description of the fence, and the proportion to be maintained by each, and shall be forthwith filed in the office of the town clerk, and shall be final upon the parties to such dispute, and all parties holding under them.

If, after the determination of the fence viewers, one of the parties refuses to comply with the original order, then the law provides the following:

If such neglect or refusal shall be continued for the period of one month after request in writing to make or repair the fence, the party injured may make or repair the same, at the expense of the party so neglecting or refusing, to be recovered from him with costs (§ 305).

In other words, if one party refuses to erect his part of the fence, then the other party should give him a written request to do so; if the first party continues in his refusal for one month thereafter, then the second party may construct the fence at the expense of the first party and he may recover the amount with costs in an action at law.

November 14, 1973
Revised July 22, 1975