HB 0130

HB 130 - AS AMENDED BY THE HOUSE

AN ACT relative to the maintenance of boundaries and fences.

SPONSORS: Rep. Philbrick, Carr 4; Rep. Patten, Carr 9

II. Provides that the governing body shall determine whether a fence involving water is sufficient and appraise a fence that has been constructed or repaired.

III. Repeals the laws on fencing and renewing bounds of common fields, and electric fences.

V. Increases the height of a spite fence deemed to be a private nuisance from 5 feet to 6 feet.

VI. States that a person shall be guilty of willful trespass if that person negligently removes fence materials from another person's land, without that person's permission. The bill also allows the land owner to recover from the trespasser for the lost fence materials..

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Matter which is either (a) all new or (b) repealed and reenacted appears in regular type.

AN ACT relative to the maintenance of boundaries and fences.

Be it Enacted by the Senate and House of Representatives in General Court convened:

1 Boundaries, Fences and Common Fields; Division of Fences and Their Maintenance. RSA 473 is repealed and reenacted to read as follows:

473:1 "Owner" and "Party" Defined. In this chapter, the terms "owner" and "party" shall mean the owner of record.

473:2 Duty. The owners of adjoining lands under improvement shall build and repair the partition fence between them in equal shares.

473:3 Division by Agreement. Any division of a fence made by the parties in writing and recorded shall be binding upon the parties and all succeeding owners and occupants of the land.

473:4 Proof of Division. A division may be established by usage and acquiescence of the parties, and those under whom they claim, for 20 years.

473:5 Legal Fences. All fences of such height as to be reasonably adequate for their purpose and in good repair, consisting of rails, timber, boards or stone wall, barbed, electrified or woven wire, and all brooks, rivers, ponds, creeks, ditches, hedges and other things deemed by the governing body to be equivalent shall be accounted legal and sufficient fences.

473:6 Waters as Insufficient Fence. The governing body or fence viewer, upon application of either party, shall view any brook, river, pond, creek or ditch alleged not to be equivalent to a legal and sufficient fence. If they judge it to be not so equivalent, they shall make a division of the fence. If it is impracticable to build the fence on the boundary line without unreasonable cost, the governing body or fence viewer shall determine where it shall be located, and shall give notice to the parties to build it according to such division and location within a specified time period.

473:7 Default in Building or Repair. If either party, after being notified as provided in RSA 473:6, does not build or repair his or her part of such fence within the specified time period, the other party may build it.

473:8 Appraisal of Fence Constructed or Repaired. The governing body or fence viewer, upon application, shall view any fence built or repaired as provided in RSA 473:5, and if they judge the same and the residue of the fence between the same owners upon the same tract of land to be sufficient, they shall appraise the fence so built or the repairs so made.

473:9 Recovery. The person building or repairing the fence may demand and recover double the appraised value thereof of the delinquent party, with costs of the suit, in an action of assumpsit.

473:10 New Division. If, after a fence is divided between adjoining owners, a new division for any cause shall become necessary, then either party who has maintained any part of the fence under the former division may demand and recover from the owner of the adjoining land at the time of such new division the value of that part of the fence as may be assigned to him or her on the new division.

473:11 Appraisal in Default of Agreement. In a division under RSA 473:10, if the parties do not agree, the governing body or fence viewer, on application, shall appraise such part, and the party may recover the value appraised or agreed in an action of assumpsit for so much fence sold, if the same is not paid in 30 days after demand.

473:12 Laying Land in Common. If the owner of land ceases to improve it, or lays it in common, and gives notice thereof in writing to the adjoining owner, if known, or files such notice with the town clerk if the adjoining owner is unknown, the owner shall not be bound to repair his or her part of the division fence, after giving or filing such notice, so long as the land remains unimproved or in common; but the owner shall not remove his or her part of the partition fence in existence when the notice is given or filed.

473:13 Liability for Damages. The party neglecting to build or keep in repair any partition fence which he or she is bound to maintain is liable for damages arising from such neglect, and shall have no remedy for damages happening to himself or herself therefrom.

2 Boundaries, Fences and Common Fields; Fencing Waterways. RSA 475 is repealed and reenacted to read as follows:

475:1 "Owner" Defined. In this chapter, the term "owner" shall be defined as owner of record.

475:2 Notice. The governing body of any city or town may require the owner of any canal or waterway within the city or town deemed by them to be dangerous to fence the same.

475:3 Neglect. If the owner does not fence the canal or waterway within 60 days after receiving notice in writing of such requirement, the governing body shall cause the same to be fenced, and may collect the expense of so doing from the owner or user in an action of assumpsit.

3 Boundaries, Fences and Common Fields; Spite Fences; Fence as Private Nuisance. Amend RSA 476:1 to read as follows:

476:1 Fence as Private Nuisance. Any fence or other structure in the nature of a fence, unnecessarily exceeding [5] 6 feet in height, erected or maintained for the purpose of [~~annoying~~] separating the owners or occupants of adjoining property shall be deemed a private nuisance.

4 Proceedings in Special Cases; Willful Trespass; Stone, etc. Amend RSA 539:4 to read as follows:

I. No person shall negligently dig or carry away any stone, ore, gravel, clay, sand, turf or mold [~~upon or from land holden in common or from the land of another person, or shall aid therein, shall forfeit to the person injured treble damages, and net more than fifteen dollars~~] which is on the land of another person, or aid in such actions without the permission of that person or the person's agent.

II. In addition to any other civil or criminal penalty allowed by law, any person who violates the provisions of paragraph I shall forfeit to the person injured no less than 3 and not more than 10 times the current market value of all such stone, ore, gravel, clay, sand, turf or mold cut, dug, destroyed, injured, or carried away.

II. RSA 158:27, relative to penalties for the illegal sale or misuse of electric fences.