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Volume 11 - Opinions of Counsel SBRPS No. 32

Opinions of Counsel index

Fence viewing (scope) (property damage by pet dogs) - Town Law, § 300 et seq.:

The fence viewing procedures of Article 18 of the Town Law do not apply to property damage caused by a neighbor’s pet dog.

Our opinion has been requested concerning the fence viewing law (Town Law, Art. 18). The facts are that one of two adjoining property owners has a dog which has gone onto the neighbor’s property and destroyed a garden. The question is if the dog owner may be ordered by the fence viewer to erect a fence and incur all costs. In our opinion, the fence viewing law does not apply to this situation.

As we noted in 5 Op.Counsel SBEA No. 11: “Fence viewing is a duty of the assessor. Following a Court of Appeals decision and a subsequent statutory amendment, the fence viewing procedure outlined in Article 18 of the Town Law is applicable only when two adjoining land owners both keep animals on their land.”

Article 18 of the Town Law was enacted in order to eliminate trespass actions between adjoining property owners by making such owners proportionally responsible for the control of straying animals. Under section 300 of the Town Law, it is the duty of each owner of adjoining properties, except where they otherwise agree, to make and maintain the division fence between their lands, unless both agree to let their lands lie open “to the use of all animals which may be lawfully upon the lands of either. . . .” However, if one of the owners does not keep animals on his or her land, he or she is not liable to contribute to the cost of erecting, maintaining, or repairing the fence. If the property owner who does keep livestock erects or repairs a division fence, and the other owner begins to keep livestock within the next five years, he or she must contribute 20 percent of what would have been his or her share of the original cost for each year or part of year during which he or she keeps animals. {1}  The assumption appears to be that a division fence has a period of probable usefulness of five years before requiring replacement or repair.

The law, however, appears to pertain to the keeping of livestock, not pets. As the State Comptroller opined, “The animals to be fenced against are ‘beasts’. . . . An ‘animal’ or ‘beast,’ in our opinion, means one of the larger four-footed domestic animals, not including a dog, cat or rabbit . . .” (8 Op.State Compt. 265; accord, 1980 Op.Atty.Gen. 200). We concur, so, in our opinion, the fence viewing law is inapposite to the facts presented. As such, the assessor, as fence viewer (Town Law, § 40), {2} would have no statutory role in resolving the neighbors’ dispute; they may, of course, pursue other available legal remedies.

October 16, 2002

{1}  This provision for pro rated contributions to the costs of making or repairing division fences was added in 1976 (c.464), that is, subsequent to the issuance of 5 Op.Counsel SBEA No. 11 (see also, 59 NY Jur2d, Fences, § 8).

{2}  We do note that assessors may also have a role in determining damage done to domestic animals by dogs (Agriculture and Markets Law, § 125), but that statutory indemnification procedure does not appear to apply to the facts presented.