§ 32-26-9-3 — Defaulting landowner; description of lawful partition fence; floodgate across watercourse

(a) A partition fence shall be built, rebuilt, and
kept in repair at the cost of the property owners whose properties are
enclosed or separated by the fences proportionately according to the
number of rods or proportion of the fence the property owner owns
along the line of the fence, whether the property owner's title is a fee
simple or a life estate.
(b) If a property owner fails or refuses to compensate for building,
rebuilding, or repairing the property owner's portion of a partition
fence, another property owner who is interested in the fence, after
having built, rebuilt, or repaired the property owner's portion of the
fence, shall give to the defaulting property owner or the defaulting
property owner's agent or tenant twenty (20) days notice to build,
rebuild, or repair the defaulting property owner's portion of the fence.
If the defaulting property owner or the defaulting property owner's
agent or tenant fails to build, rebuild, or repair the fence within twenty
(20) days, the complaining property owner shall notify the township
trustee of the township in which the properties are located of the
default.
(c) This subsection applies if the fence sought to be established,
rebuilt, or repaired is on a township line. Unless disqualified under
subsection (h), the complaining property owner shall notify the trustee
of the township in which the property of the complaining property
owner is located of the default under subsection (b), and the trustee has
jurisdiction in the matter.
(d) The township trustee who receives a complaint under this
section shall:
(1) estimate the costs for building, rebuilding, or repairing the
partition fence; and
(2) within a reasonable time after receiving the complaint, make
out a statement and notify the defaulting property owner of the
probable cost of building, rebuilding, or repairing the fence.
If twenty (20) days after receiving a notice under this subsection the
defaulting property owner has not built, rebuilt, or repaired the fence,
the trustee shall build or repair the fence. The trustee may use only the
materials for the fences that are most commonly used by the farmers of
the community.
(e) If the trustee of a township is disqualified to act under subsection
(h), the trustee of an adjoining township who resides nearest to where
the fence is located shall act on the complaint upon receiving a notice
by a property owner who is interested in the fence.
(f) A lawful partition fence is any one (1) of the following that is
sufficiently tight and strong to hold cattle, hogs, horses, mules, and
sheep:
(1) A straight board and wire fence, a straight wire fence, a
straight board fence, or a picket fence four (4) feet high.
(2) A straight rail fence four and one-half (4 1/2) feet high.
(3) A worm rail fence five (5) feet high.
(g) This subsection applies if a ditch or creek crosses the division
line between two (2) property owners, causing additional expense in
the maintenance of the part over the stream. If the property owners
cannot agree upon the proportionate share of each property owner, the
township trustee shall appoint three (3) disinterested citizens who shall
apportion the partition fence to be built by each property owner.
(h) If a township trustee is:
(1) related to any of the interested property owners; or
(2) an interested property owner;
the trustee of any other township who resides nearest to where the
fence is located shall act under this chapter.
(i) This subsection applies if a ditch or creek forms, covers, or
marks the dividing line or a part of the dividing line between the
properties of separate and different property owners so that partition
fences required under this chapter cannot be built and maintained on
the dividing line. The partition fences shall be built and maintained
under this chapter as near to the boundary line as is practical, and each
property owner shall build a separate partition fence on the property
owner's property and maintain the fence at the property owner's cost.
(j) This subsection applies where a partition fence required under
this chapter crosses a ditch or creek and it is impracticable to construct
or maintain that portion of the fence that crosses the ditch or creek as
a stationary fence. Instead of the portion of the fence that would cross
the ditch or creek, there shall be constructed, as a part of the partition
fence, floodgates or other similar structures that are sufficiently high,
tight, and strong to turn hogs, sheep, cattle, mules, and horses or other
domestic animals. The floodgates or other similar structures shall be
constructed to swing up in times of high water and to connect
continuously with the partition fences.
(k) This subsection applies if the building and maintenance of the
floodgates or other similar structure required under subsection (j)
causes additional expenses and the property owners cannot agree upon
the character of floodgates or other similar structure, or upon the
proportionate share of the cost to be borne by each property owner. The
township trustee, upon notice in writing from either property owner of
a disagreement and the nature of the disagreement, shall appoint three
(3) disinterested citizens of the township who shall determine the kind
of structure and apportion the cost of the floodgate or other structure
between the property owners, taking into consideration the parts of the
fence being maintained by each property owner.
(l) The determination of a majority of the arbitrators of any matter
or matters submitted to them under this section is final and binding on
each property owner. The compensation of the arbitrators is two dollars
($2) each, which shall be paid by the property owners in the proportion
each property owner is ordered to bear the expense of a gate or
structure.
(m) This subsection applies if either or both of the property owners
fail to construct or compensate for constructing the structure
determined upon by the arbitrators in the proportion determined within
thirty (30) days after the determination. The township trustee shall
proceed at once to construct the gate or structure and collect the cost
of the gate or structure, including the compensation of the arbitrators,
from the defaulting property owner in the same manner as is provided
for ordinary partition fences. The floodgate or other structure shall be
repaired, rebuilt, or replaced according to the determination of the
arbitrators.
[Pre-2002 Recodification Citation: 32-10-9-3.]

Legislative History

As added by P.L.2-2002, SEC.11.