How does Texas fence law affect your rights as a property owner? Attorneys Philip Hundl and Audra Smith answers many of your questions in this video recorded at the Brazoria County Extension Office during a presentation on Agriculture Law. Please call 800-929-1725 for an appointment. Audra Smith is no longer with the Firm, but many of other attorneys have years of experience in agriculture and property law.
We have five offices in three counties across Southeast Texas. Our offices are in Wharton and El Campo in Wharton County, Fulshear and Richmond in Fort Bend County, and Bay City in Matagorda County.
Summary of the Fence Law Video
– Fence law. Another big topic. So, Texas has two approaches to fence law, closed range and open range. By default Texas is open range, meaning that your animals can run at large. You don’t have to fence them in, they can run all over the place. But there’s some exceptions to that and some really big ones.
Texas Counties Can Vote to Become Closed Range
One, you can close the range under our fence laws. Meaning the county has a vote to close the range. You can’t leave your animals unattended running across the road, things like that, anymore. You need to fence them in and keep them contained.
The other one is that there is actually a law that state US highways are closed range. I don’t know when it was passed. Karson might know. He’s been doing some research on fence laws. But state and US highways are closed range, so you cannot let your animals roam on highways
It does not include a number of farm-to-market roads. It does not include county roads, but it says through major US highways. The animals covered are horses, mules, donkeys, cows, bulls, steers, hogs, sheep, and goats. I think turkeys are included in some areas. Pretty much all animals that you’re keeping considered livestock are going to be covered. They cannot be allowed to roam at large unattended on the right of way of the highway.
You Could Be Liable if Your Animal Causes an Accident on the Road
And then the liability is what’s important on this one. If the person strikes an unattended animal on the highway, the person who hit your animal is not liable unless they did something wrong. Otherwise you might be found at fault.
Brazoria County Is Closed Range
What is Brazoria County Stock Law? Most important to you guys. It was voted on in 1938. For the stock law, 1164 votes. This is just a fun statistic for you. Against the stock law, 991 votes. All Brazoria County is now closed range, meaning you need to keep your animals contained. I see a head shake over there. Someone has to ask because we have a copy of the stock law saying it’s closed. Oh, okay. I was like, we got a copy of it and read it. So that means you have to keep your animals contained by a fence under our fence laws.
– [Man] Tons of grass out there
– Oh, yes. There is a lot of grass on the roadways that would be nice if something could graze it rather than it just get shredded down. Yes, I do understand that. So, like I said, this means you’re legally obligated to prevent your animals from running at large. Don’t let them out on even the county road.
There are some instances where it might still happen if you own both sides of the county road. But just be cautious, and if you live and own land in Brazoria County, know that it is closed range and you’re not supposed to have them like that, crossing the roads. If you live in another county, contact us if you want to find out if you’re open or closed. Contact your county clerk, your county commissioner. They should be able to help you find that. Karson, Philip and myself are actually working to put together some stock laws with Tiffany the Texas Agri-life lawyer. We’re trying to compile a database of the whole state’s stock laws. So, pretty soon it’ll be an online resource that you can go for. So no matter what county you’re working with, you’ll know if it’s open or closed.
How Estrays Are Handled in Texas
The last thing I think I have to talk about is estrays. What is an estray? It’s a stray livestock. So it means livestock that is out on that right of way grazing the ditch. It means the neighbor’s cow that got into your pasture or your backyard, stray livestock. It’s not where it’s supposed to be. As soon as reasonably possible you need to report these to the sheriff’s department.
They will try to locate and contact the owner if it is possible to do so. If they can’t or if the animal’s dangerous they will come remove it from your property or cause to have it removed. They always call the sheriff’s posse, and I’ve seen it happen. They have a couple cowboys come out with horses and trailers and they round up those cows that are running down the road. So if they can’t locate the owner they cause them to be impounded.
A lot of times they’ll take it to a local livestock auction barn. And then they post a notice. If nobody claims those animals they’re sold at public auction. So it’s important to report estrays. Don’t just take them. And make sure nobody gets hurt. That’s always my concern.
Its Important to Brand Your Livestock
A little side note on this. This is the importance of branding. If you own any type of livestock, put a brand on it. What do the sheriffs do whenever they get these calls? Is there a brand on that cow? Yes, it has an R on its hip. They look at the county brand registrations. They call the Texas and Southwestern Cow Raisers Association. They find who owns that brand. They find out that somebody with the last name R, pick a person, they own that cow. They get in touch with that person to come help get that animal out of your yard, out of the road, whatever the case may be.
Texas Fence Law Doesn’t Require Neighbors to Share the Cost of a Boundary Fence
There’s no legal obligation of your neighbors to share in the boundary fence. If you want to fence in your property, you can’t require them to pay for half the fence. It would be nice, yes. But I always say it doesn’t hurt to ask, right?
If you own this property and they own that property and you’re both running some livestock and we need a nice fence in between us, let’s try to split the cost. But it’s not required that they pay for it. Even though they get the benefit of it. If they don’t pay for it, then that’s your fence. That’s always a perk. If you then want to remove it, you can remove it, but then their animals are going to get on your land. That’s why it’s always the best if you can get along with your neighbors.
A Sufficient Fence Under Fence Law
A sufficient fence — there’s some requirements under Texas fence law as to what a sufficient fence is. It’s a four-foot minimum height. Barbed wire, must have three wires, posts that are a minimum 30 foot apart, one or more stays between every two posts. I don’t know who builds a picket fence for livestock, but maybe for chickens. Pickets must be no more than six inches apart. Board fences must have three boards not less than five inches wide and one inch thick. And a rail fence has to have a minimum of four rails.
Can a Fence Straddle a Property Line Under Texas Fence Law
– All right, let’s talk about property fencing. Property lines and fencing are frequently asked questions. These are some questions that we get from time to time. I have a right to mark my boundary I’ve heard opposing parties say that in cases when we’re fighting over locations of fences.
So my question is, how wide is the boundary line? We had this question to a judge. Actually Judge Harden who is in Brazoria County. There was a case in Wharton County. The other side, his fence posts were two inches over along my client’s land. My client, they just didn’t like each other, so he said move the fence. And the other side kept saying, well, if it’s marking the boundary line it’s marking the boundary line.
So I looked into this, and based upon my research I said, Judge, the boundary line is this wide. There’s no kind of, it’s a foot wide, six inches wide and it’s kind of a no man’s land there. It’s either your property or my property. There’s no in between. Do I have a right to mark my boundary? Under Texas fence law you have a right to put a fence on your land.
If someone tells you I’ve got a right to put that post right in the middle, half on your land, half on my land, your response can be that “no”. If you put it half on the other guy’s land or other lady’s land, and they don’t want you to, then that fence post of yours is trespassing, half of it’s trespassing. So be careful with that.
So you have a right to mark your boundary under our fence laws, but you only have a right to put a fence on your property, not on somebody else’s property. What’s the effect of an encroaching fence? I’ve kind of already said that. It’s a trespass.
A lot of times we think, oh, well, a trespass is I sneak over on the other guy’s fence and do something or hop over or a poacher or something. But you can have your property trespass, your animal trespass, your dog trespass, whatever. So you can have fence post or a fence trespass on someone’s property.
It’s not really called trespassing but it’s an encroachment, also a trespass. We already talked about how wide the property line. So, if a property line is uncertain, well, you know, I’m pretty sure the fence is here. It gets pretty expensive to move a fence. I know a survey’s expensive. But normally I’m going to say, look, getting going and getting a survey before building a fence is going to be a lot cheaper.
So when in doubt have a surveyor survey it and mark it. Have I seen, sometimes folks like to find the corners, the stakes that are in the corner of the tracks of the property and run a string and say, well, this is the property line. We oftentimes, I know all of you have seen this too, some people like to go out and dig up stakes and move them and all these kind of things. So, when in doubt get a surveyor to go out there.
You’ll see sometimes battling surveyors or surveys. Well, my surveyor says this is the line and your surveyor says this is the line. A lot of times it comes down to what they tied their survey to. They move out and they find other common points, but I’ve seen them move out further and sometimes get it off, and it’s amazing what kind of surveys will overlap. But in the end most surveyors will actually agree and come up with the same number.
Yes. Like Audra said, if you want to build a boundary fence or a fence along the property line, why not ask the other property owner. My dad was building a fence down some property he owns, and I really didn’t think the other side would pay because they were always just real tight with their money. And we asked them and I said we don’t have anything to lose and they said, sure, no problem, we’ll pay half. Great.
But what we did was we did a boundary agreement too. We’re both agreeing this is the boundary. We’re both agreeing we’re going to put a fence up. We both agree we’re going to pay half because I’ve seen too many people saying they’re going to pay half, and then all of a sudden when they, you know, it comes time to pay the bill they forgot that they said they’d pay half.
So, if it’s not a joint fence, the mere fact of building that fence entirely on your property may require a fence crew, you, whoever, to go on the other guy’s property a little bit, right? And so if there’s some contention between the neighbor or you just want to be on the safe side, yeah, you hate to have to go overboard on a lot of this stuff. Like we were saying, the liability releases and everything. Nowadays everybody’s litigious. But yeah, get a temporary easement from your neighbor. Power companies do it all the time. People do it all the time. Hey, give me a a month, two months, a certain amount of time. We’ll be building this fence. Let me go on your property to the extent of five feet, 10 feet, whatever it takes.
Your neighbor may say, you can go on there by foot but you can’t drive on there, rut it up or whatever else, and if you do you’re going to have to pay me for it. No problem. Get that all nailed down. Leave no open segments when constructing a fence, water crossings and woods, et cetera, sure. That’s, especially if you’re trying to keep livestock in, I mean what’s the point of having a fence if you’re going to have some gaps in it? I know, the sloughs and the creeks and things like that are definitely, especially with floods are hard to always keep fenced.
Fence Law and Adverse Possession
Be aware of adverse possession. Believe it or not, there’s a lot, still, a lot of adverse possession cases. And we’ve been on both sides of them. And what’s some of the requirements or what are some of the elements of someone trying to adversely take your land? Putting up a fence, right? Adversely possessing your land. I’m going to say the easiest way to adversely do that or the element says to adversely possess is build a fence. If you keep a fence there long enough, you can potentially claim that person’s property as your own, and it becomes yours. It doesn’t automatically happen immediately. A court has to determine that. Hang on one second.
– [Audience Member] Does that fence have to hold cattle?
– Very good question. There’s kind of a, there’s a few kind of terms of art and terms that you’ll hear, turn cattle. It’s got to be a fence that’s got to be capable of turning cattle. So that would fall under what you’re saying. There’s some other terms called, and correct me if I’m wrong, Audra. Karson, you may know this too, but it’s the difference between a casual fence and a designedly enclosed fence. Okay. I don’t really like those terms. I like they’re capable of turning cattle. But a designedly enclosed fence would be that, okay. I think a casual fence is like one post here, real far another post, it’s got kind of a rope just hanging on it. You could argue that’s a casual fence. So, go ahead.
– [Audience Member] Adverse possession, is that a trespass
– So, yeah, we’ve done lots of research on that to flesh that out. So, correct me if I’m wrong on this. I’m pulling you on. But, so the way, if you’re the one that owns the land, right, and someone’s on your land and you want them to get off and they’re claiming adverse possession, then you want the court to declare that it is your land and they haven’t adversely possessed it. So it is a trespass to try title case or a cloud–
– [Audra] Quiet.
– Quiet title, yes.
– [Audra] Trespass to try title is if you, sorry to interrupt. If you have some instrument giving you title to the property. Whether it’s valid or not, if Philip conveys you a piece of land that I actually own, that falls under an instrument of title. So you would use that. But the quiet title is when you’re claiming by adverse possession.
– So if you’re the adverse possessor and you’re saying it’s now mine, you’re wanting the quiet title to get that title to you. But if you possess the property through a document, an instrument of conveyance document, then it’s a trespass to try title. Like, I’ve got good title, Judge, I want you to try my title out and confirm that it’s mine. So it’s weird, arcane terms.
– [Audra] It depends on your situation but sometimes we do both in one lawsuit.
– [Audience Member] So, does an existing fence, one that’s been there 25, 30 years, will that confer a boundary?
– Well, that gets you there, yeah.
– [Audience Member] It what?
– Well, your question is, does an existing fence get you there if it’s been there for so long? And so, that’s extremely fact-intensive case because I’ve had that case as of about a year ago. And so, if someone else put that, and our situation was, it was a fence that, so, it depends and I’m going to tell you the one situation.
There’s a fence that was on, it was 100 acres, and there was a fence kind of right in the middle. But it was on 100 acres, right. And then at some point, you know, the land was divided 60/40. So this fence happened to kind of be on the 60 acres, and the guy that owned the 40 acres all of a sudden said, I’m going to kind of say that fence has been adversely possessing the other 10 acres. So he tried to utilize that fence to his benefit. And the answer was, well, he didn’t put the fence up. He didn’t erect it. And at one point all that land was the same and that fence was there. So the purpose of the fence is to give the notice to the person owning the land that, uh-oh, something’s up and someone’s trying to take something from you. So, it just depends on when the fence was put up, how, whom, all that.
– [Audience Member] Okay. The fence has been there. I’ve owned the place for over 45 years. The fence has been there for 40 or 50 years before that. Everybody that has been there came in, just really shored up the fence. They did not take it down.
– Yeah.
– [Audience Member] They just shored it up, put new wire, what have you. Still got my piece of land next to it. And he came over said he’s going to remove it. No. You’re not going to remove this fence. You can sue, you can do whatever you want to, but this fence was historic, and nobody’s trying to take your property. But it just so happens that every piece of property in the creek area was three feet off from the survey.
– So my position on that would be, and of course, as lawyers they’re going to take the position that they need to try to win the case for their client. But obviously your position is, look, that fence has been there long enough to, if it’s in the wrong place, it doesn’t matter. I’ve adversely possessed that three foot. That’s all. And his argument’s going to be, well, that fence actually didn’t provide enough notice, so therefore you don’t get there. I mean that’s the two arguments on both sides.
– [Audra] I had this case last year actually, and it peacefully ended. It was a fence, it stood 50 years, 10 feet over in the wrong direction. They got a new survey to mark the corners for the new corner post and rebuilding the fence. Found all this error. There was also partition of the neighboring lands. So it was a big mess. And competing surveys, like you talked about. What ended up happening is the neighbor bought that little strip of land. So it was a very peaceful ending. Instead of claiming it by adverse possession. Because it was a good adverse possession case. The property was fenced and maintained. It was a slam dunk, a win or anything like that. But that’s an option too is to offer to purchase that little strip of land.
– [Audience Member] Well, those properties running from east to west. Every property is approximately three feet off. We called the original survey back in the 1800s, brought it from a point in Belasco.
– Yeah.
– [Audience Member] And somewhere, somebody decided that was too much trouble to come out there. They found a point, they started marking it off. And they’re all wrong.
– Yeah.
– [Audience Member] But I mean, you know.
– Not uncommon. Same situation I had actually in East Bernard area. East of East East Bernard. So, yeah, I mean, just any of those cases, they’re not going to be automatic slam dunk. They’re going to be a fact question for the judge or a jury. So none of it’s ever going to be just, yeah, automatic, and it’s not a question of, I record an affidavit and I went in and you lose I mean that’s not even going to get there. Let’s keep going and then hold your questions because these are good questions.
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Call 800-929-1725 for an appointment or schedule an appointment online by clicking this link. We represent landowners in a variety of legal matters including fence law, adverse possession, condemnation, leases and partition.
We have five offices in three counties across Southeast Texas. Our offices are in Wharton and El Campo in Wharton County, Fulshear and Richmond in Fort Bend County, and Bay City in Matagorda County.
