Good Fences, Pt. 2

Welcome back readers,

Today we finish up our piece about fence law with a few notes about maintaining an existing fence.

As always, if you have specific legal questions, please seek out an attorney. This blog post is not a replacement for sound legal advice!

  • Maintaining an Existing Fence:
    • If there is an existing fence that needs repair, a neighbor can seek to compel repair, or contribution for repair, using the steps above.
    • Once a fence is built, the duty to maintain the fence is ongoing[1].
    • If you need to repair a fence, you may enter your neighbor’s land to make repairs, but only to the extent “reasonably necessary to construct, maintain, or repair the division fences”. Any alterations, such as removing trees, is not allowed[2].
      • Each neighbor has a duty to prevent any trees or other woody growth from damaging the fence, up to and including trimming and tree removal. If such growth damages the fence, the other neighbor may bring a private nuisance action to compel the neighbor to remove the tree or woody growth[3]
    • Keep in mind that if you have livestock that trespass, you are responsible for any damage done. However, if the damaged party has caused negligent or willful damage to their agreed-upon portion of the fence, and your animals trespassed through that breach, you may not be liable for any resulting damage[4].
    • Also keep in mind that fences do have an important evidentiary function in boundary disputes.


“Love your neighbor as yourself; but don’t take down the fence.” – Carl Sandburg


[1] Neb. Rev. Stat. § 34-112.

[2] Neb. Rev. Stat. § 34-112.01.

[3] Neb. Rev. Stat. § 34-103.

[4] Neb. Rev. Stat. § 54-401.

Good Fences Can Make Good Neighbors


Welcome Back Readers,

This week, we are bringing you a couple posts for building a fence. (I apologize for the obvious terrible pun).

Under Nebraska law, adjoining property owners each have a responsibility to maintain fences between their respective properties[1]. There is no duty to erect a fence if both property owners decide not to have a fence. Because there is a statutorily imposed duty on each neighbor to maintain their “just proportion” of the fence, there are instances in which one neighbor may bring an action against the other neighbor.

As always, if you have specific legal questions, please seek out an attorney. This blog post is not a replacement for sound legal advice!

  • Building a New Fence:
    • If a landowner wants to erect a fence, and wants contribution from a neighbor, then the landowner must give written notice to the neighbor, requesting that they build half the fence, or pay for half the fence.
      • This notice must be given at some point before the fence is finished[2].
      • If there is no response to the notice, or the neighbor refuses the contribution request, then the landowner may file a fence dispute action in the county court where the land is located, after 7 days, but within one year of the written notice[3].
    • The neighbors, ideally, would then negotiate and agree about the cost and maintenance of the fence. But, if the neighbors negotiate, and are unable to reach an agreement about the equitable division of responsibility for the fence, then either neighbor may file a fence dispute action without the 7 day notice.
    • There is a fence dispute form that is available through the Clerk of the County Court.
    • After filing, the Clerk will also send out notices regarding mediation[4].
      • If both parties agree, the court may send the case to mediation.
        • Should the parties reach an agreement in mediation, the judge shall enter the agreement as its judgment.
      • If the parties do not agree to mediation, or do not reach an agreement in mediation, the case proceeds in County Court.
  • Minimum Requirements for a Fence:
    • Unless the neighbors agree otherwise, a fence shall be a wire fence[5].
      • Wire Fences must have:
        • At least four wires, of at least #9 size.
        • Secured to posts no more than one rod (16.5 ft.) apart, and also secured to a stake or another post in between those posts[6].
      • Any of the wires may be barbed wire. But if using barbed wire, each strand must be at least #12.5 gauge, and the barbs must be no more than 5 inches apart[7].
      • The fence itself must be at least 4.5 ft. tall, with no more than 12 inches in between wire strands[8].

*If another type of fence is desired, such as: rail, board, rail-and-post, pole-and-post, hog-and-sheep-tight, and other fences; the requirements may be found in Neb. Rev. Stat. § 34-115.

We will be back later this week with some tips about maintaining an existing fence.

“Love your neighbor as yourself; but don’t take down the fence.” – Carl Sandburg


[1] Neb. Rev. Stat. § 34-102.

[2] Neb. Rev. Stat. § 34-112.02(1).

[3] Neb. Rev. Stat. § 34-112.02(2).

[4] Neb. Rev. Stat. § 34-112.02(4).

[5] Neb. Rev. Stat. § 34-102(2).

[6] Neb. Rev. Stat. § 34-115(5).

[7] Id.

[8] Neb. Rev. Stat. § 34-116.

FSA Disaster and Loan Programs- Grand Island- FREE WORKSHOP

Date- Tuesday, June 6, 2017
Time- 10:00am- noon

Location– Hall County Extension Office, Grand Island

The workshop will cover Farm Service Agency livestock disaster programs, direct and guaranteed loan programs, and NextGen (Nebraska Beginning Farmer Tax Credit Program). It is intended to be useful for established farm and ranch owners, their successors, and for beginners.

To register or for questions, call the Rural Response Hotline at 1-800-464-0258.
Topics include:
  • FSA livestock disaster programs
    • Livestock Forage Program (LFP)
    • Livestock Indemnity Program (LIP)
    • Emergency Livestock Assistance Program (ELAP)
  • FSA loan programs
    • both direct and guaranteed operating and ownership loans including those programs targeted at beginning farmers and ranchers\
    • micro loan program
    • the recently expanded farm storage facility loan program
  • Will address some issues that arise under these programs when farm and ranches use limited liability entities as part of their business and/or succession planning
  • Benefits and requirements of NextGen (Nebraska Beginning Farmer Tax Credit Program), including requirements for use by family members.
  • Joe Hawbaker, Agricultural Law Attorney, Hawbaker Law Office, Omaha
  • Amy Swoboda, Food & Farm Attorney, Beginning Farmer Project, Legal Aid of Nebraska
These workshops are made possible through the Nebraska Network for Beginning Farmers & Ranchers and the Beginning Farmer Project of Legal Aid of Nebraska under an outreach grant from the Farm Service Agency, USDA.

Survey for Farm/Ranch Seekers and Owners

This short 5 minute survey aims to learn how farm/ranch owners are thinking about future opportunities for their land, and how that compares to people who are looking for a farm/ranch of their own. The data collected will be publicly made available through NextGen and other programs. All responses are anonymous and confidential.

This survey is part of a United States Department of Agriculture study led by the Kansas Rural Center and Indiana University. For questions about the survey contact Julia Valliant at or 812-855-3155.

Please access survey here.

Beatrice FREE Farm Transition and Estate Planning Workshop March 1

You are welcome to attend a free workshop on business succession and estate planning for farm and ranch owners, families and beginners.   The workshop will be held in Beatrice, (March 1, 2017) at the Extension Office at the fairgrounds.  The workshop runs from 10:00 am to 2:30 pm.  There is no charge for the workshop.  To register (and for questions) call the Rural Response Hotline at 1-800-464-0258.

The workshop is about farm and ranch business succession and family estate planning.  It will include a discussion of beginning farmer programs that can aid in succession planning.  The workshop should be useful for established farm and ranch owners, for their successors, and for beginners.   Topics include:  stages of succession planning, contribution & compensation, balancing the interests of on-farm and off-farm heirs; the importance of communication, setting goals, assessing feasibility, and balancing intergenerational expectations and needs; beginning farmer loan and tax credit programs; the use of trusts, wills, life estate deeds and business entities (such as the limited liability company) in family estate and business succession planning;  legal tools for balancing the interests of successors and off-farm heirs; asset protection; taxation (federal transfer taxes, Nebraska inheritance tax, basis adjustment), and essential estate documents. 

Joe Hawbaker, Agricultural Law attorney, with Hawbaker Law Office, Omaha

Dave Goeller, Deputy Director, Northeast Center for Risk Management Education, UNL

This workshop is made possible by the Nebraska Network for Beginning Farmers & Ranchers, the Farm and Ranch Project of Legal Aid of Nebraska, USDA-FSA, National Institute of Food and Agriculture, the Nebraska Department of Agriculture’s Next Gen, Nebraska Farmers Union Foundation, UNL Extension Gage Co, and a lunch will be provided.

March Clinic Dates

Farmers and ranchers are invited to attend a FREE clinic.  The clinics are one-on-one, not group sessions, and are confidential.  The Farm Finance clinic gives you a chance to meet with an experienced Ag law attorney and Ag financial counselor.  These clinic staff specialize in legal and financial issues related to farming and ranching, including financial planning, estate and transition planning, farm loan programs, debtor/creditor law, water rights, and other relevant matters.  Here is an opportunity to obtain an experienced outside opinion on issues that may be affecting your farm or ranch.  Bring your questions!

These FREE farm and ranch clinics are being held in:

March Clinics:

Norfolk clinic – Friday, March 3rd

Norfolk clinic – Thursday, March 16th

Fairbury clinic – Monday, March 27th

To sign up for a clinic or for more information, call Michelle at the Nebraska Farm Hotline:  1-800-464-0258.

The Nebraska Department of Agriculture and Legal Aid of Nebraska sponsor the farm finance clinics.

Farm mediation                  Legal Aid of Nebraska

Updated June Clinic Dates

Free clinics are available through the Farm Mediation program and Legal Aid of Nebraska.   In these clinics, participants can get one-on-one advice from financial and legal professionals about farm transition and financial issues.  The dates for June 2016 are:

Grand Island – Thursday, 2nd

Broken Bow Workshop – Thursday, 9th

Geneva & Central City follow-up clinic – Friday, 10th

Norfolk – Thursday, 16th

Fairbury – Wednesday, 22nd

Kearney follow-up clinic – Monday, 27th

North Platte follow-up clinic – Tuesday, 28th

Valentine – Wednesday, 29th

Please call the Rural Response Hotline at 1-800-464-0258 to register.

April Clinics

Free clinics are available through the Farm Mediation program and Legal Aid of Nebraska.   In these clinics, participates can get one-on-one advice from financial and legal professionals about farm transition and financial issues.  The dates for April 2016 are:

Farm mediation

Grand Island – Thursday, April 7th

Norfolk – Thursday, April 7th

North Platte – Thursday, April 14th

Legal Aid of Nebraska

Lexington – Thursday, April 21st

Fairbury – Friday, April 22nd

Valentine – Thursday, April 28th

Norfolk – Friday, April 29th

Please call the Rural Response Hotline at 1-800-464-0258 to make and appointment.

Joint Tenancy versus Tenancy in Common

After some confusing conversations lately with clients, today’s blog post is about Joint Tenancy & Tenancy in Common.  This post is a summary of the larger linked article.

In Nebraska, there are essentially two ways to own property with someone: joint tenancy or tenancy in common.  What is the difference between joint tenancy and tenancy in common?

Joint Tenancy:

Joint tenancy’s defining feature is called the right to survivorship.  Right to survivorship, or survivorship for short, allows the “last person standing” to “get it all”.  This is most common when spouses jointly own property.  Thus, when the first spouse passes, the surviving spouse inherits title to the property.  At the time of death, nothing is required to transfer the property to the surviving spouse.  However, as the surviving spouse will own the entire property, the surviving spouse will determine who inherits the property at his or her death.

Tenancy in Common:

Tenancy in common, in contrast to joint tenancy, is when two or more people own an undivided interest in property.  For example, a brother and sister inherit a parcel of land, which they must “share and share alike”.  This means the brother and sister each own a 50% undivided interest in the parcel.  At the time of death of each sibling, that sibling may pass on their 50% share to their heirs.  Thus, the brother may pass on his share to his daughter, and the parcel would then be owned by the sister and brother’s daughter.  Tenancy in common is criticized as it can result in fractionalization of ownership.

If you are in a situation where you are unclear as to the type of ownership, please feel free to give us a call. We’re always happy to help!