Community Agriculture Alliance: Sometimes a fence is just a fence
October 17, 2013
Steamboat Springs — I had a chance to speak about the topic of Colorado fence law at a recent Land Stewardship class sponsored by the Community Agriculture Alliance. In preparing for the class, I got to review a number of terms that are applied to some of our Routt County fences, including legal fence, boundary fence, lay-down fence, three-strand barbed-wire fence, high-tensile wire fence and sheep fence.
We started out by discussing legal fence, which was defined fairly clearly by Colorado statute until the Legislature added a final phrase. The basic definition includes "well-constructed three barbed wire fence with substantial posts" and indicates that the posts should be about 20 feet apart. We all could clearly envision a legal fence until we read the last phrase, "or any other fence of like efficiency."
When lawyers are in a dispute about a fence issue, they are not sure how to interpret a statute and the courts have not offered opinions of what the statute means, the lawyers will call on an expert witness. A person becomes an expert witness by virtue of having some special background or training that makes him or her more knowledgeable than the judge and the attorneys about a specific issue like, "What is a legal fence?"
In a recent lawsuit that involved three teams of attorneys from the Front Range and one local attorney who lives on a ranch here, the visiting attorneys chose the former Routt County Extension Agent CJ Mucklow as the expert to explain fences in Routt County. By being designated as an expert witness, the person designated gets the opportunity to express his or her opinion of topics that relate to the expertise. Although Mucklow initially might have thought this was a high honor, he probably began to grow skeptical when he learned that he was to be deposed — sworn to tell the truth before a court reporter and then questioned by all of these attorneys for at least a couple of hours.
Although some of the inquiries and responses drifted off the topic of fences, Mucklow got to express his opinion a lot:
"In my opinion, a four-strand, barbed-wire fence, even if it's lay down, is probably a legal fence, but that's my opinion."
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"It's my opinion you have the right to erect a fence on agricultural property."
"The question becomes when it becomes a five-strand, high-tensile fence that's smooth wire. Is that legal? I don't know. I would say ‘yes,’ but I don't know."
And in response to a question about sheep wire, Mucklow patiently explained, "It's smooth, woven wire because three-strand barbed wire won't necessarily hold sheep … because they will crawl through it where a cow, generally speaking, will not."
Finally, with respect to the specific fence dispute, Mucklow provided some concluding opinions and some good advice:
"I believe this case probably will solve some of these questions of fence law and mechanization and how we build them because I don't know the answer to that."
"I would say they are working together on this, so work with your neighbor on the fence. I would have counseled them on that."
So if you're building a new boundary fence, know your rights and responsibilities, talk with your neighbor and reach the best understanding you can as to the type of fence, the location of the fence, the nature of the construction planned and the maintenance responsibilities. Because sometimes a fence is just a fence.
Rich Tremaine is an attorney with Klauzer & Tremaine LLC in Steamboat Springs. He also is a Community Agriculture Alliance advisory board member. He can be reached at email@example.com.