§ 35-46-111 — Right-of-way fences

(1) (a) Except as otherwise provided in
paragraph (b) of this subsection (1) and subsection (4) of this section, it is the duty
of the department of transportation to maintain right-of-way fences constructed as
of June 1, 1994, by the department at or near the boundary of the department's
highway property in agriculturally zoned areas along and adjacent to all federal aid
highways where such highways are maintained by the department. The department
shall make repairs to such right-of-way fences when necessary only upon actual
notice to the department. Neither the department nor the landowner is liable for
any damages caused by the failure to adequately construct, maintain, or repair the
right-of-way fence unless actual notice is given to the department.

(b) If the department removes a right-of-way fence in an agriculturally zoned
area during a construction project, the department shall replace and maintain said
fence unless the landowner and the department agree that said fence shall not be
replaced.

(2) In nonagriculturally zoned areas, the department may erect a right-of-way fence where the highway has been declared a freeway pursuant to section 43-3-101, C.R.S., or in areas that the landowner and the department agree that said
fence be erected. If the department erects a right-of-way fence or has previously
erected a right-of-way fence where the highway has been declared a freeway, the
department shall maintain and repair said fence when necessary upon actual notice
to the department. Neither the department nor the landowner is liable for any
damages caused by the failure to adequately construct, maintain, or repair the
right-of-way fence unless actual notice is given to the department.

(3) Upon actual notice, the department shall maintain right-of-way fences
constructed by the department, where highways are maintained by the department,
at or near the boundary of the department's highway property adjacent to
properties owned by municipalities unless otherwise agreed to in writing by the
department and the municipality.

(4) If, in both agriculturally and nonagriculturally zoned areas, the landowner
adjacent to an existing right-of-way fence and the department agree that said
fence shall be removed, the right-of-way fence shall be removed by the department
at its expense. If the landowner removes or causes the removal of the right-of-way
fence without agreement by the department, the department shall not be required
to reimburse the landowner for such removal, and the landowner shall be liable for
any and all damages caused by the unauthorized removal of the fence.

(5) If a right-of-way fence is either removed or not replaced pursuant to
subsection (1) or (4) of this section and the landowner who agreed that the fence be
removed or not replaced or any subsequent landowner of property adjacent to the
right-of-way later desires to erect a right-of-way fence, said fence may be erected
by the landowner at the landowner's expense, but only upon prior agreement by the
department. Such right-of-way fence shall be constructed in accordance with the
standards applicable to the department at the time such fence is erected, and the
department is required to make repairs to such right-of-way fence upon actual
notice to the department. Liability for any damages caused by failure to adequately
construct the right-of-way fence shall be borne by the landowner at the time the
damages are incurred.

(6) All agreements required pursuant to subsections (1) to (5) of this section
shall be in writing, be recorded by the department in the office of the county clerk
and recorder of each county where the real property adjacent to the right-of-way is
located, and be binding upon and notice to all persons or classes of persons
claiming any interest in said property.

(7) If a landowner and the department agree to either remove or not replace
a right-of-way fence pursuant to subsections (1) to (5) of this section and the
landowner at the time of the agreement or any subsequent landowner does not
maintain livestock, as defined in section 35-46-101 (2), on the land adjacent to a
highway right-of-way, any livestock that enters the highway right-of-way through
that land shall not be a dangerous condition pursuant to section 24-10-106 (1)(d),
C.R.S. Neither the landowner nor the department shall be liable for any damages
caused by such livestock because of the absence of such right-of-way fence.

(8) If a person herds livestock along a highway adjacent to property from
which a fence has been removed pursuant to this section and any of the livestock
strays onto that property, the landowner may not recover damages for trespass and
injury to grass, garden or vegetable products, or other crops from the owner of the
livestock unless the landowner can prove the person herding the livestock allowed
the livestock to enter the property without making an effort to remove the
livestock. Nothing in this section is intended to change the status of open range law
and statutes relating to fences in Colorado.

(9) Notwithstanding any other provision of this section, the department may
erect and maintain a right-of-way fence in any area at the department's expense, in
its sole discretion, but the department has no duty to erect and maintain any fence
at its expense.

Legislative History

Source: L. 35: p. 488, � 1. CSA: C. 160, � 71. CRS 53: � 8-13-12. C.R.S. 1963: � 8-13-12. L. 89: Entire section amended, p. 1408, � 1, effective July 1, 1990. L. 91: Entire section amended, p. 1074, � 58, effective July 1. L. 94: Entire section amended, p. 1113, � 1, effective May 19.