Chapter 90 of the Wisconsin Statutes sets forth the general rules regarding fences in agricultural areas of Wisconsin. In agricultural areas where the law applies, neighbors may agree not to have fences or may agree upon a fencing arrangement different from what is specified in the statutes.
In Wisconsin, a fence is required when any one neighbor uses and occupies his or her land for farming or grazing purposes; however, adjoining occupants of land can mutually agree not to have a fence or to use markers instead of a fence. Wis. Stat. § 90.03. In general, Wis. Stat. § 90.02(3) provides that fences must be 50 inches high with the bottom not over 4 inches from the ground. However, shorter heights apply to electric fences, barbed wire fences and high tensile fences. See generally Wis. Stat. § 90.02
Even though only one neighbor may be using and occupying the land for farming or grazing purposes, both neighbors are obligated to share the cost and responsibility for the fence. For example, if two neighbors both have wooded lands, a fence is not required. However, if Neighbor John chooses to graze cattle in his woods, both Neighbor John and Neighbor Jane would then have to build and maintain a partition fence between their land, pursuant to Wis. Stat. Chapter 90, unless they both agree otherwise.
Chapter 90 may also apply when one of the neighbors is the state or a subdivision of the state. However, the law only applies if both parties agree that a fence is reasonably necessary. In essence, the government unit is not subject to Chapter 90 unless it so agrees. Wis. Stat. § 90.035.
When a fence is required and agreed to, both adjoining neighbors are responsible for erecting and maintaining their half of the fence. Wis. Stat. § 90.03. Wis. Stat. § 90.07(3) provides a directive as to which neighbor is responsible for a given portion of the fence. The rule of thumb when dividing responsibility between neighbors is: “Whenever practicable … when facing a farm, going around the farm to the right, the first one-half of the line fence belongs to the farm faced.” Wis. Stat. § 90.07(3). In essence, when you stand on your property line, facing the neighbor’s property, you will generally have the duty to maintain the half of the fence on your right, with the neighbor maintaining the half on the left.
Although the law provides that responsibility for a fence is divided evenly between two (2) adjoining neighbors, they may agree upon another arrangement. Wis. Stat. § 90.03. As such, partition fence agreements should be in writing, signed and sealed by the owners and two (2) witnesses, and filed with the town clerk Wis. Stat. § 90.05(1).
In the event neighbors cannot agree as to the type of fence and/or what portions of the fence each will maintain, either neighbor may call upon the town or village for fence viewers. The town or village board members are the fence viewers. Wis. Stat. § 90.01.
Action for Trespass by Animals and Other Liability
A fence can help limit or prevent damage from animals and affects liability. However, a landowner who does not maintain and keep in repair his or her portion of a lawful partition fence may not recover any damages from an owner of animals of any adjoining lands if those animals wander onto the landowner’s property due to an inadequate fence. Wis. Stats. § 90.04. Even when there is an adequate fence, an owner of swine, horses, sheep or goats is still liable if those animals damage another person’s property. Wis. Stat. § 90.04.
Moreover, Wis. Stat. § 172.01 imposes strict liability on owners of stallions over one (1) year old, bulls over six (6) months old, and to boars, rams and billy goats over four (4) months old. As such, owners of any such animal are strictly liable for all damages done by the animal while at large, regardless of whether the animal’s escape was the owner’s or keeper’s fault.
Note, towns, villages and cities may have ordinances regulating fences in nonagricultural areas. You should consult with your municipal clerk or an attorney if you have a question on such fences.
About the Author
William F. Springer
Originally from rural southwest Wisconsin, Will grew up working on his family’s third generation beef cattle farm. He is a professional who believes that trust and communication are essential to the attorney-client relationship. Will has broad experience with respect to matters involving business transactions, real estate, banking, and landlord-tenant law. Learn more.