By Tim Baxter, Road Safety and Loss Prevention Specialist
Fences are important to let cattle graze safely. But it is a problem for counties when fences are placed next to county roads on the county’s right-of-way, or worse yet, across a county road.
Nebraska state law (Neb. Rev. Stat. §39-301) clearly states that any person who obstructs a public road (including the right-of-way) with fencing is guilty of a criminal misdemeanor offense.
Nebraska state law (Neb. Rev. Stat. §39-307) also states that a person “who builds a barbed wire fence across or in any plain traveled road or track in common use, either public or private, without first putting up sufficient guards . . . shall be guilty of a . . . misdemeanor and shall be liable for all damages that may accrue to the party damaged by reason of such barbed wire fence.”
While these laws seek to put a penalty on the person who builds a fence that interferes with a road, this does not always mean that the county has no legal responsibility. If a county has knowledge of, or reason to know, that such a fence has been installed, and a traveler or property is injured by it, there is still a risk of legal liability. Counties have general legal obligations under Nebraska law to maintain county roads and to warn of known dangers to the traveling public on county roads. It is all too easy for a lawyer to come up with an argument that a county should bear or share in civil legal responsibility in the event that a fence on or next to a county road causes an auto accident or injury.
Section 39-301 allows a highway superintendent to order the owner of a fence on or next to a county road to remove the fencing. And, if the notice or order is ignored by the owner, the county may remove the fence, and recover the costs of removal from the owner in a county court lawsuit.
It should go without saying that these legal rights of the counties should be exercised to their fullest.
Some great news is that we now have Nebraska Supreme Court precedent that fully supports the right of Counties to take legal actions to prevent illegal private fencing within county road rights-of-way. In Cedar County, a landowner was prosecuted and convicted of misdemeanor criminal offenses several times for repeatedly placing his cattle fence in the county road ditch. Cedar County also filed a civil lawsuit against the landowner and obtained a permanent injunction (court order) to prevent the landowner from continuing to do this. The Nebraska Supreme Court upheld both the criminal convictions and the injunction.1 In the criminal proceeding, the Court made clear that the term “public road” includes the entire area within the County’s right-of-way (usually 66 feet, measured from the centerline of the roadway on each side to a 33-foot distance to the ditch on each side, or as otherwise established by the County Board), and that any fence placed within the County’s right-of-way would be unlawful. The Court found that in addition to being convicted of misdemeanors, the landowner could also be subject to the civil injunction, because the criminal convictions with minimal fines were not enough to stop this landowner. The Court found that the injunction was necessary against that landowner to “protect the public from future repetitive acts.”
It seems obvious that fencing across a county road, even a low-volume or dead-end road, creates an unnecessary risk of injuries to the traveling public. The same is true of fencing alongside the roadway. This kind of fence placement also interferes with a county’s routine road maintenance responsibilities.
A claim was recently settled following mediation on behalf of a NIRMA member county that arose from improper fencing. A young woman and her passenger were seriously injured after running into a barbed wire fence on an ATV, where a landowner had placed a fence directly across the road to let his cattle graze in the area. It was not clear how often the road was in use. The road had never been properly vacated. It was not clear whether the county board knew or should have known that the road was being fenced by the landowner. Prior to the accident, the county had not taken any steps to put the landowner on notice that the fence needed to be removed. This lawsuit emphasizes the need to take the proactive steps outlined above to stop landowners from engaging in this practice.
County Boards or County Attorneys may hesitate to carry through prosecuting these matters. It can be difficult to confront landowners about the issue, especially when they are valued constituents, or even friends. But, apathy and failure to act in these situations can cost significant dollars. And the Cedar County cases mentioned above show that proactive efforts, as demonstrated by the Cedar County Highway Superintendent, Cedar County Board and Cedar County Attorney, can be very successful to stop this dangerous practice, and mitigate liability risks.
There are provisions in the NIRMA coverage agreement that exclude claims involving “expected or intended injury” and “violations of laws, policies, or procedures.” These are similar to exclusions found in most comparable insurance policies. In a county where improper fencing is widespread or deliberately ignored by county officials, these could potentially be applied in the event of a claim. But careful risk management practices should prevent that.
One suggestion is for a county board to develop and vote to post a public notice in the local newspaper ordering landowners to remove obstructive fencing in or next to public county roads. The notice can be a warning that the county takes enforcement of state law on this topic seriously. An example of this kind of public notice is below. Be sure to review this kind of possible action in advance with your county attorney.
As a highway superintendent myself for over 20 years, I recall a former county board member who installed a fence on county right-of-way along a county road. I worked with the county attorney at the time to take the matter to court to recover damages after he refused to remove the fence. He told me he thought it was his right as a former board member and a landowner to have the fence. The court, however, disagreed. He was found guilty of a misdemeanor and ordered to pay court costs and a fine.
It was not a pleasant experience, but one that was necessary in the best interests of the county.
I urge our member counties to take the responsibility to enforce state law and try to get landowners to remove traffic hazards such fences on or next to county roads. This is truly a risk that you do not have to face if you take simple steps.
Please contact me with any questions or for samples of letters to landowners regarding this issue, by calling 402-310-4417 or via email at email@example.com. Be Safe.
1 State v. Thelen, 305 Neb. 334 (2020); County of Cedar v. Thelen, 305 Neb. 351 (2020).