John Belork v. Robin Latimer, Davis Township Trustee and DMK&H Farms, Inc. (rehearing)
2016 Ind. App. LEXIS 140
| Ind. Ct. App. | 2016Background
- John Belork owns farmland in Starke County and pastures cattle; adjacent owners Jan Ferch and DMK & H Farms grow grain. Belork rebuilt parts of fences along his eastern and southern boundaries; neighbors did not complete their halves.
- Belork asked Davis Township Trustee Robin Latimer to require the neighbors to build their halves; she refused. He sued by petition for mandamus under Ind. Code § 34-27-3, seeking an order compelling the trustee to enforce the partition-fence statute (Ind. Code ch. 32-26-9).
- At bench trial the court granted judgment on the evidence for Latimer and DMK & H, finding the partition-fence statute applies only where both adjoining owners “use” the fence to control livestock; here only Belork used the fences for livestock.
- Belork petitioned for rehearing; the Indiana Agricultural Law Foundation filed an amicus brief urging a broad reading of the partition-fence statute to include existing fences and to impose shared responsibility irrespective of actual fence use.
- On rehearing the majority reversed: it held the operative partition-fence provisions (Ind. Code §§ 32-26-9-2 and -3) require adjoining owners to construct and maintain a partition fence built on the property line where at least one adjoining parcel is agricultural land, and that lack of beneficial use by one owner does not exempt them.
Issues
| Issue | Plaintiff's Argument | Defendant's Argument | Held |
|---|---|---|---|
| Whether fences Belork seeks are "partition fences" subject to Ind. Code ch. 32-26-9 | Belork: chapter applies where at least one adjoining parcel is agricultural; statute covers existing or new partition fences and does not require both owners to use the fence | Latimer/DMK & H: statute applies only where both adjoining owners "use" the fence (i.e., both keep livestock); if a neighbor gains no benefit they should not be liable | Held: The chapter applies. §§ 32-26-9-2 and -3 govern fences on the dividing line when at least one parcel is agricultural; a neighbor's lack of beneficial use does not exempt them |
| Whether Ind. Code § 32-26-9-1 limits the chapter by requiring both owners to "use" a fence before it becomes a partition fence | Belork: § 9-1 and the 2003 agricultural definitions show legislature intended broad application to agricultural land, not a use-only limit | Appellees: § 9-1 shows the chapter applies only if owners "use" an existing fence as a partition fence | Held: § 9-1 governs existing fences that parties have treated/used as partition fences; it does not limit the operation of §§ 9-2 and 9-3 for fences constructed on the dividing line when one parcel is agricultural |
| Whether existing fences not precisely on the property line can be treated as partition fences | Belork/amicus: existing fences used as boundaries should be treated as partition fences and covered by cost-sharing provisions | Appellees: if fence not on true line, owners should not be forced to share costs | Held: § 9-1 permits adjoining owners to treat existing fences (even if not precisely on line) as partition fences and thus trigger §§ 9-2 and 9-3 obligations |
| Whether mandamus was appropriate to compel trustee action under the statute | Belork: trustee has statutory duty under § 9-3(d) to act when an owner defaults after notice | Latimer: argued duties are limited where statute inapplicable because neighbors do not use the fence | Held: Because the chapter applies, statutory procedures for notice and trustee action are available; case remanded for proceedings consistent with that conclusion |
Key Cases Cited
- Coldwell Banker Roth Wehrly Graber v. Laub Bros. Oil Co., 949 N.E.2d 1273 (Ind. Ct. App.) (standard for judgment on the evidence)
- Raess v. Doescher, 883 N.E.2d 790 (Ind.) (appellate review principles cited)
- Burck v. Davis, 73 N.E. 192 (Ind. App.) (treating existing fences used by neighbors as partition fences)
- Capps v. Abbott, 897 N.E.2d 984 (Ind. Ct. App.) (estoppel where parties use a fence as boundary)
- Freiburger v. Fry, 439 N.E.2d 169 (Ind. Ct. App.) (agreement and acquiescence can fix fence as boundary)
- Ashley v. Kelley, 149 N.E. 377 (Ind. App.) (partition statute applies broadly to lands)