34-102. Division fence; adjoining landowners; construct and maintain just proportion of fence.

(1) When there are two or more adjoining landowners, each of them shall construct and maintain a just proportion of the division fence between them. Just proportion means an equitable allocation of the portion of the fenceline to be physically constructed and maintained by each landowner or, in lieu thereof, an equitable contribution to the costs to construct and maintain the division fence to be made by either landowner. Unless otherwise specified in statute or by agreement of the parties, such equitable allocation shall be one which results in an equal burden of construction and maintenance of the division fence. This section shall not be construed to compel the erection and maintenance of a division fence if neither of the adjoining landowners desires such division fence.

(2) Unless the adjoining landowners have agreed otherwise, such fence shall be a wire fence as defined in subdivision (5) of section 34-115.

Source:R.S.1866, c. 1, § 13, p. 8; R.S.1913, § 476; Laws 1919, c. 94, § 2, p. 237; C.S.1922, § 2418; C.S.1929, § 34-102; R.S.1943, § 34-102; Laws 2007, LB108, § 3; Laws 2010, LB667, § 2.

Cross References

Game and Parks Commission, division fence responsibilities, see section 37-1012.

Annotations

Failure of plaintiff to maintain just proportion of division fence did not justify or excuse trespass by defendant's cattle; this article provides remedy for defendant to compel plaintiff to maintain proportion of fence. Fiene v. Robertson, 184 Neb. 668, 171 N.W.2d 179 (1969).

A cause of action for contribution does not arise from the erection of a partition fence, in the absence of any agreement, unless the method provided by statute is followed. Burr v. Hamer, 12 Neb. 483, 11 N.W. 741 (1882).

34-103. Maintenance; private nuisance.

Every person liable to contribute to the construction and maintenance of a division fence or any portion thereof shall maintain his or her portion in good repair, including the necessary removal or trimming of trees and woody growth within or encroaching upon the fenceline to repair or avoid damage to, or dislocation of, the division fence. The occurrence of trees and woody growth within or encroaching upon a division fence that causes damage to, or dislocation of, the fence shall constitute a private nuisance to the adjacent landowner's possessory interests in his or her land.

Source:Laws 2011, LB108, § 1.

34-104. Repealed. Laws 2007, LB 108, § 10.

34-105. Repealed. Laws 2007, LB 108, § 10.

34-106. Repealed. Laws 2007, LB 108, § 10.

34-107. Repealed. Laws 2007, LB 108, § 10.

34-108. Repealed. Laws 2007, LB 108, § 10.

34-109. Repealed. Laws 2007, LB 108, § 10.

34-110. Repealed. Laws 2007, LB 108, § 10.

34-111. Repealed. Laws 2007, LB 108, § 10.

34-112. Division fence; injury or destruction; repair.

Whenever a division fence is injured or destroyed by fire, floods, or other casualty, the person bound to construct and maintain such fence, or any part thereof, shall make repairs to the same, or his or her just proportion thereof, as provided in section 34-102.

Source:R.S.1866, c. 1, § 23, p. 9; R.S.1913, § 2486; C.S.1922, § 2426; C.S.1929, § 34-110; R.S.1943, § 34-112; Laws 2007, LB108, § 4.

34-112.01. Division fence; entry upon land authorized.

An owner of land may enter upon adjacent land owned by another person to construct, maintain, or repair a division fence pursuant to sections 34-102 and 34-112, but such access shall be allowed only to the extent reasonably necessary to construct, maintain, or repair the division fence. This section does not authorize any alterations to adjacent land owned by another person, including the removal of trees, buildings, or other obstacles, without the consent of the adjacent landowner or a court order or the removal of any items of personal property lying thereon without the consent of the adjacent landowner or a court order.

Source:Laws 2007, LB108, § 5.

34-112.02. Division fence; construction, maintenance, or repair; notice; court action authorized; hearing; mediation; costs.

(1) Whenever a landowner desires to construct a division fence or perform maintenance or repairs to an existing division fence, such landowner shall give written notice of such intention to any person who is liable for the construction, maintenance, or repair of the division fence. Such notice may be served upon any nonresident by delivering the written notice to the occupant of the land or the landowner's agent in charge of the land. The written notice shall request that the person liable for the construction, maintenance, or repair satisfy his or her obligation by performance or by other manner of contribution. After giving written notice, a landowner may commence construction of a division fence, or commence maintenance or repair upon an existing division fence, in which cases any cause of action under this section and sections 34-102, 34-112, and 34-112.01 shall be an action for contribution.

(2) If notice is given prior to commencing construction, maintenance, or repair of a division fence and the person so notified either fails to respond to such request or refuses such request, the landowner sending notice may commence an action in the county court of the county where the land is located. If the landowners cannot agree what proportion of a division fence each shall construct, maintain, or repair, whether by performance or by contribution, either landowner may commence an action, without further written notice, in the county court of the county where the land is located. An action shall be commenced by filing a fence dispute complaint on a form prescribed by the State Court Administrator and provided to the plaintiff by the clerk of the county court. The complaint shall be executed by the plaintiff in the presence of a judge, a clerk or deputy or assistant clerk of a county court, or a notary public or other person authorized by law to take acknowledgments and be accompanied by the fee provided in section 33-123. A party shall not commence an action under this subsection until thirty days after giving notice under subsection (1) of this section and shall commence the action within one year after giving such notice.

(3) Upon filing of a fence dispute complaint, the court shall set a time for hearing and shall cause notice to be served upon the defendant. Notice shall be served not less than five days before the time set for hearing. Notice shall consist of a copy of the complaint and a summons directing the defendant to appear at the time set for hearing and informing the defendant that if he or she fails to appear, judgment will be entered against him or her. Notice shall be served in the manner provided for service of a summons in a civil action. If the notice is to be served by certified mail, the clerk shall provide the plaintiff with written instructions, prepared and provided by the State Court Administrator, regarding the proper procedure for service by certified mail. The cost of service shall be paid by the plaintiff, but such cost and filing fee shall be added to any judgment awarded to the plaintiff.

(4) In any proceeding under this section, subsequent to the initial filing, the parties shall receive from the clerk of the court information regarding availability of mediation through the farm mediation service of the Department of Agriculture or the state mediation centers as established through the Office of Dispute Resolution. Development of the informational materials and the implementation of this subsection shall be accomplished through the State Court Administrator. With the consent of both parties, a court may refer a case to mediation and may state a date for the case to return to court, but such date shall be no longer than ninety days from the date the order is signed unless the court grants an extension. If the parties consent to mediate and if a mediation agreement is reached, the court shall enter the agreement as the judgment in the action. The costs of mediation shall be shared by the parties according to the schedule of fees established by the mediation service and collected directly by the mediation service.

(5) If the case is not referred to mediation or if mediation is terminated or fails to reach an agreement between the parties, the action shall proceed as a civil action subject to the rules of civil procedure.

Source:Laws 2007, LB108, § 6; Laws 2018, LB766, § 1.

Annotations

Although Nebraska’s “fence law” explicitly confers jurisdiction over contribution cases related to division fences to the county courts, it cannot deprive the district court of its subject matter jurisdiction over common-law causes of action. Kotrous v. Zerbe, 287 Neb. 1033, 846 N.W.2d 122 (2014).

34-112.03. Division fence; changes made by Laws 2007, LB 108; applicability.

The changes made to sections 34-102, 34-112, and 37-1012 by Laws 2007, LB 108, sections 34-112.01 and 34-112.02, and the repeal of sections 34-101, 34-103 to 34-111, and 34-113 by Laws 2007, LB 108, apply commencing on March 8, 2007, except that prior law applies to any division fence dispute commenced prior to such date.

Source:Laws 2007, LB108, § 7.

34-113. Repealed. Laws 2007, LB 108, § 10.

34-114. Repealed. Laws 1994, LB 882, § 6.

34-115. Lawful fences, defined.

Lawful fences of different kinds used for fence to enclose lands shall be as hereinafter defined. (1) A rail fence shall consist of at least six rails, such rails to be secured by stakes at the end of each panel, well set in the ground, with a rider on the stakes. (2) A board fence shall consist of not less than three boards of at least five inches in width and one inch thick; such boards to be well secured to posts; the posts to be not more than eight feet apart. (3) A rail and post fence shall consist of at least three rails, well secured at each end to posts; the posts not to be more than ten feet apart. (4) A pole and post fence shall consist of not less than four poles, to be well secured to posts; the posts not to be more than seven feet apart. (5) A wire fence shall consist of at least four wires, of a size not less than number nine fencing wire, to be well secured to posts, the posts to be at no greater distance than one rod from each other; and there shall be placed between every two of the posts one stake or post to which the wire shall be attached. Any of such wires may be a barbed wire composed of two or more single wire strands twisted into a cable wire with metal barbs thereon averaging not more than five inches apart, each of such single wire strands to be of a size not less than number twelve and one-half gauge fencing wire. (6) A hog and sheep tight fence shall consist of one barb wire at the ground, next above, one section of woven wire twenty-six inches high, consisting of not less than seven strands, the upper and lower strands to be number nine wire, intermediate strands to be number eleven wire with stays not more than twelve inches apart, and at the top, three barb wires at intervals of six, nine, and nine inches; and the whole shall be securely fastened to posts at no greater distance than one rod from each other, and there shall be placed between every two of the posts one stake or post to which the wire shall be attached. (7) All other fences made and constructed of boards, rails, poles, stones, hedge plants, or other material which upon evidence is declared to be as strong and well calculated to protect enclosures and is as effective for resisting breaching stock shall be considered a lawful fence.

Source:Laws 1867 (Ter.), § 1, p. 17; R.S.1913, § 2492; Laws 1915, c. 43, § 18, p. 120; C.S.1922, § 2431; C.S.1929, § 34-115; R.S.1943, § 34-115; Laws 1947, c. 127, § 1, p. 366; Laws 1999, LB 776, § 3.

Annotations

This section was not intended to apply to railroads. Chicago, B. & Q. R. R. Co. v. James, 26 Neb. 188, 41 N.W. 992 (1889).

Lawful wire fence must consist of at least four wires. Baltensperger v. United States, 174 F.Supp. 601 (D. Neb. 1959).

34-116. Lawful fences; height and spaces.

The fences described in section 34-115 shall be at least four and one-half feet in height; and in the construction of such fences the spaces between the boards, rails, poles, and wires shall not exceed one foot each, measuring from the top.

Source:Laws 1867 (Ter.), § 2, p. 17; R.S.1913, § 2493; C.S.1922, § 2432; C.S.1929, § 34-116; R.S.1943, § 34-116.

Annotations

This section was not intended to apply to railroads. Chicago, B. & Q. R. R. Co. v. James, 26 Neb. 188, 41 N.W. 992 (1889).

34-117. Lawful fences; Warner's Patent; requirements.

Fence known as Warner's Patent shall be at least four and one-half feet in height, and consist of not less than five boards; such boards to be of a width of not less than five inches, and one inch thick.

Source:Laws 1867 (Ter.), § 3, p. 18; R.S.1913, § 2495; C.S.1929, § 34-117; R.S.1943, § 34-117.

Annotations

This section was not intended to apply to railroads. Chicago, B. & Q. R. R. Co. v. James, 26 Neb. 188, 41 N.W. 992 (1889).

34-201. Preservation during construction and other work.

It shall be the duty of every individual or corporation engaged either directly or indirectly in the construction of any irrigation ditch, drainage ditch, railroad, side track or spur track, or any other construction, or in any other activity whatsoever, that endangers or may endanger or may cause the loss or destruction of any landmark or corner of land surveys or boundaries, to employ the county surveyor of the county wherein they are situated to properly perpetuate or witness said landmarks and corners according to law.

Source:Laws 1929, c. 129, § 1, p. 479; C.S.1929, § 34-201; R.S.1943, § 34-201.

34-202. Failure to protect; liability for damages.

Any individual or corporation who shall fail to protect such landmarks or corners shall be responsible for all damage that may accrue to the party injured by reason of such loss or destruction.

Source:Laws 1929, c. 129, § 2, p. 479; C.S.1929, § 34-202; R.S.1943, § 34-202.

34-301. Disputed corners and boundaries; court action to settle; procedure.

When one or more owners of land, the corners and boundaries of which are lost, destroyed, or in dispute, desire to have the same established, they may bring an action in the district court of the county where such lost, destroyed, or disputed corners or boundaries, or part thereof, are situated, against the owners of the other tracts which will be affected by the determination or establishment thereof, to have such corners or boundaries ascertained and permanently established. If any public road is likely to be affected thereby, the proper county shall be made defendant. Notice of such action shall be given as in other cases, and if the defendants or any of them are nonresidents of the state, or unknown, they may be served by publication as is provided by law. The action shall be a special one, and the only necessary pleading therein shall be the complaint of the plaintiff describing the land involved, and, so far as may be, the interest of the respective parties and asking that certain corners and boundaries therein described, as accurately as may be, shall be established. Either the plaintiff or defendant may, by proper plea, put in issue the fact that certain alleged boundaries or corners are the true ones, or that such have been recognized and acquiesced in by the parties or their grantors for a period of ten consecutive years, which issue shall be tried before the district court under its equity jurisdiction without the intervention of a jury, and appeals from such proceedings shall be had and taken in conformity with the equity rules.

Source:Laws 1923, c. 103, § 1, p. 258; C.S.1929, § 34-301; R.S.1943, § 34-301; Laws 2009, LB35, § 26.

Annotations

1. Adverse possession

2. Equity action

3. Recognition and acquiescence

4. Miscellaneous

1. Adverse possession

Where an exact metes and bounds description is impossible to ascertain from the record, the failure to adequately describe the proposed boundary is fatal to a claim of adverse possession. Matzke v. Hackbart, 224 Neb. 535, 399 N.W.2d 786 (1987).

Adverse possession is recognized as a defense in a proceeding under this section. Petsch v. Widger, 214 Neb. 390, 335 N.W.2d 254 (1983); Converse v. Kenyon, 178 Neb. 151, 132 N.W.2d 334 (1965).

When properly pleaded, the theory of adverse possession, as well as the theory of mutual recognition and acquiescence, may be raised under this section. Layher v. Dove, 207 Neb. 736, 301 N.W.2d 90 (1981).

Evidence was insufficient to show acquisition of title by adverse possession. Randall v. Liakos, 181 Neb. 326, 148 N.W.2d 204 (1967).

Adverse possession or acquiescence must be put in issue by proper plea. Hehnke v. Starr, 158 Neb. 575, 64 N.W.2d 68 (1954).

Acquiescence in boundary is separate and distinct from claim of title by adverse possession. Hakanson v. Manders, 158 Neb. 392, 63 N.W.2d 436 (1954).

In determining whether an adverse possessor had exclusive use of the disputed property, it is irrelevant whether the titleholders communicated their use of the disputed property to the adverse possessor or his or her predecessor in interest. Madson v. TBT Ltd. Liability Co., 12 Neb. App. 773, 686 N.W.2d 85 (2004).

2. Equity action

This statute provides that whenever one or more owners of land, the corners and boundaries of which are lost, destroyed, or in dispute, desire to have the same established, they may bring an action in the district court to have them ascertained and permanently established. The case is tried as an equity case and is reviewable in the Supreme Court de novo on the record. State v. Jarchow, 219 Neb. 88, 362 N.W.2d 19 (1985).

An action to establish boundaries under this section is an equity action and triable de novo on appeal to the Supreme Court. Cofer v. Kuhlmann, 214 Neb. 341, 333 N.W.2d 905 (1983).

This section authorizes actions in equity to determine boundaries of real estate, the ownership of which is in whole or in part in dispute. Shirk v. Schmunk, 192 Neb. 25, 218 N.W.2d 433 (1974).

This section is broad enough to authorize action in equity to determine boundaries of real estate. Elsasser v. Szymanski, 163 Neb. 65, 77 N.W.2d 815 (1956).

Where defendant in his answer and cross-petition asked for determination of boundary lines, he was precluded from objecting to jurisdiction of equity to fully determine issues joined. Hardt v. Orr, 142 Neb. 460, 6 N.W.2d 589 (1942).

Equity action is available to determine corners and boundaries to real estate to which the right or title is in dispute, irrespective of whether or not there is an adequate remedy at law. McGowan v. Neimann, 139 Neb. 639, 298 N.W. 411 (1941).

An action to ascertain and permanently establish corners and boundaries of land under this section is an equity action. Curry v. Furby, 20 Neb. App. 736, 832 N.W.2d 880 (2013); Oppliger v. Vineyard, 19 Neb. App. 172, 803 N.W.2d 786 (2011).

3. Recognition and acquiescence

Even though the neighboring landowners recognized their boundary line by markers which were an approximation of the real boundary, a boundary by mutual recognition and acquiescence may be established if the approximation was recognized by the acquiescing parties as their actual boundary and the location of this boundary can be proved by the parties. Sila v. Saunders, 274 Neb. 809, 743 N.W.2d 641 (2008).

The filial relationship rule has no bearing on a mutual recognition and acquiescence analysis. Sila v. Saunders, 274 Neb. 809, 743 N.W.2d 641 (2008).

When neighboring landowners recognized for 10 years a boundary which they believed corresponded to the metes and bounds legal descriptions of their properties, the doctrine of mutual recognition and acquiescence will apply even though an accurate survey, had they obtained one, could have accurately established a division line corresponding to the legal description. Sila v. Saunders, 274 Neb. 809, 743 N.W.2d 641 (2008).

Rule of recognition and acquiescence embodied in this section is separate and distinct from the theory of adverse possession. Such rule requires more than the mere establishment of a line but requires the other party to have knowledge of the line and the possession taken as well as assent thereto. Spilinek v. Spilinek, 215 Neb. 35, 337 N.W.2d 122 (1983).

A boundary line may be established by mutuality of recognition and acquiescence for a period of ten consecutive years. Swanson v. Dalton, 178 Neb. 55, 131 N.W.2d 704 (1964).

Issue of recognition of and acquiescence in boundary line must be raised by proper pleading. McDermott v. Boman, 165 Neb. 429, 86 N.W.2d 62 (1957).

Nebraska law provides that boundaries that have been mutually recognized and acquiesced in for a period of 10 years can be legal boundaries. Oppliger v. Vineyard, 19 Neb. App. 172, 803 N.W.2d 786 (2011).

4. Miscellaneous

Boundary disputes cannot be determined in a quiet title action. Rather, boundary disputes are properly brought as an action in ejectment or pursuant to this section. Rush Creek Land & Live Stock Co. v. Chain, 255 Neb. 347, 586 N.W.2d 284 (1998).

This section provides for court action to settle disputed corners and boundary line questions. McGowan v. Neimann, 144 Neb. 652, 14 N.W.2d 326 (1944).

In a proceeding to establish lost corners and boundary lines, where the evidence is conflicting, trial court's finding will not be disturbed when sustained by competent evidence. Kennedy v. Gottschalk, 138 Neb. 842, 295 N.W. 813 (1941).

This section authorizes the district court to ascertain and permanently establish the corners or boundaries to lands which have been lost, destroyed, or are in dispute in a suit in equity. State v. Cheyenne County, 123 Neb. 1, 241 N.W. 747 (1932).