West Virginia
Livestock Laws
WEST VIRGINIA
CODE ANNOTATED
CHAPTER 19. AGRICULTURE
ARTICLE 17. FENCES
19-17-1.
Definition of lawful fence
Every fence of the height and description hereinafter mentioned
shall be deemed a lawful fence as to any horses, mules, asses,
jennets, cattle, sheep, swine, or goats, which could not creep
through the same, that is to say:
(a)
If built of common rails, known as the worm fence, four and one
half feet high;
(b)
If built with posts and rails, or posts and plank, or pickets,
four feet high;
(c)
If built with stone, two feet wide at base, and three and one half
feet high;
(d)
If a hedge fence, four feet high. If any hedge fence be built upon
a mound, the same from the bottom of the ditch shall be included
in estimating the height of such fence;
(e)
If built with posts and wire, or pickets and wire, four feet high,
and shall consist of not less than six strands, the first strand
five inches, the second strand ten inches, the third strand
seventeen inches, the fourth strand twenty-five inches, the fifth
strand thirty-six inches, and the sixth strand forty-eight inches
from the ground; and if with more than six strands, the space
between the strands shall in no case be greater than hereinbefore
provided. The space between the posts shall, in no case, be
greater than sixteen feet;
(f)
If built with posts and high tensile galvanized wire, forty-six
inches high, and shall consist of not less than eight strands, the
first strand four inches, the second strand nine inches, the third
strand fourteen inches, the fourth strand nineteen inches, the
fifth strand twenty-five inches, the sixth strand thirty-one
inches, the seventh strand thirty-eight inches, and the eighth
strand forty-six inches from the ground. The wire shall be
maintained at no less than a two hundred pound tension at all
times. The space between posts shall, in no case, be greater than
thirty feet, provided that pressure-treated one and one- fourth
inch by one and one-half inch by forty-eight inch slotted hardwood
or one and one-half inch by two inch by forty-eight inch softwood
battens are used between posts at a distance no greater than ten
feet; and
(g)
If built with posts and high tensile galvanized wire and
electrified, thirty-eight inches high and shall consist of not
less than five strands, the first strand five inches, the second
strand ten inches, the third strand seventeen inches, the fourth
strand twenty-seven inches, and the fifth strand thirty-eight
inches from the ground. The wire shall be maintained at no less
than a two-hundred pound tension at all times. The space between
posts shall, in no case, be greater than one hundred fifty feet,
provided that pressure-treated one and one-fourth inch by one and
one-half inch slotted hardwood or one and one-half inch by two
inch softwood battens are used between posts at a distance no
greater than thirty-five feet: Provided, That if said fence is
constructed to confine only horses, mules, asses, jennets, or
cattle, it shall be deemed a legal fence if it is not less than
three strands, the first strand seventeen inches, the second
strand twenty-seven inches and the third strand thirty-eight
inches from the ground. The space between posts shall, in no case,
be greater than one hundred fifty feet, provided that
pressure-treated one and one- fourth inch by one and one-half inch
slotted hardwood or one and one-half inch by two inch softwood
battens are used between posts at a distance no greater than
thirty-five feet. Only highpowered low impedance fence controllers
which comply with international safety standards shall be used to
electrify fence.
All
fences heretofore built under the existing law and in compliance
therewith shall be and remain and may be kept up as lawful fences.
19-17-2. Rivers and streams as
lawful fences; establishment or discontinuance
All rivers and streams, and parts thereof, within this State,
which are lawful fences at the time this Code takes effect, under
existing laws, shall continue such until otherwise ordered by the
county court [county commission] of the county. The county court
[county commission] of any county, upon the written application of
any owner or tenant of lands on any river or stream in such
county, or which constitutes a boundary line thereof, may, in its
discretion, by order entered of record, declare and establish such
river or stream, or any part of either, a lawful fence as to any
stock named in section one [s 19-17-1] of this article. Notice of
the application shall be given by publishing the same as a Class
II legal advertisement in compliance with the provisions of
article three [s 59-3-1 et seq.], chapter fifty-nine of this Code,
and the publication area for such publication shall be the county.
Any person interested may appear and oppose such application.
The
county court [county commission] may, upon like application and
notice of any person, annul or amend any order made by said court
establishing any river or stream, or any part of either, as a
lawful fence; but such order shall not be made within one year
from the date of the order sought to be annulled or amended, and
shall not take effect until six months after it is made.
19-17-3. Hedge fence
All hedge fences along public roads, or division hedge fences
between farms or on any land or premises, shall be kept trimmed so
that their branches shall not extend into the public road, or upon
the lands of an adjoining owner, more than eighteen inches over
the dividing line. For failure to keep the hedge fence so trimmed,
after ten days' notice in writing by the county engineer or
supervisor of roads, or by parties owning the adjoining land or
premises, the owner shall be guilty of a misdemeanor, and, upon
conviction thereof, shall be fined not exceeding one dollar for
each day such fence shall remain untrimmed after the ten days'
notice expires.
19-17-4. Partition fence;
liability for trespass of animals
All partition fences shall be lawful fences, unless otherwise
agreed upon by the adjoining owners by a writing executed in
duplicate and duly acknowledged, in which case, if such fence be
kept in good repair, there shall be the same liability for damages
occasioned by trespass of animals owned by said adjoining owners
as if such fence were a lawful fence.
19-17-5. Apportionment of
construction and maintenance of partition fence
Persons owning adjoining lands, both of which are used for
agricultural, horticultural, grazing or livestock purposes, shall
bear a just proportion of the cost of the constructing, repairing
and maintaining a partition fence between such lands.
19-17-6. Sharing cost of
constructed fences
Where a person has chosen to let his land lie open, if he shall
afterwards enclose or use such land, or portion thereof, for
agricultural, horticultural, grazing or livestock purposes, he
shall refund to the adjoining owner a just proportion of the value
of the partition fence adjoining such lands, or portion thereof,
enclosed or so used that shall have been made by such adjoining
owner, regardless of whether or not such fence at the time is a
lawful fence.
19-17-7. Notice of intention to
build or repair partition fence; answer
Any person desiring to build or to repair a partition fence may
give notice in writing to the owner of any adjoining lands, or to
his agent, of his intention to build or repair such fence and
requiring him to build or repair his just portion thereof, which
notice shall state the description and kind of the fence proposed
to be built or such repairs as are proposed to be made. The person
so served with such notice shall, within ten days thereafter make
answer in writing and serve the same upon the person desiring to
build or repair such fence, which answer shall state any
objections to such notice, and upon failure to do so he shall be
liable to the person building or repairing such partition fence
for his just proportion of the cost thereof if he shall fail to
build or repair his proportion of the same.
19-17-8. Disputes relating to
partition fences
If a dispute arises between the owners of adjoining lands
concerning the proportion or particular part of a fence to be
built or maintained by either of them, or the amount to be paid by
one party to the other for any fence already built or maintained,
either party may proceed by civil action in a magistrate or
circuit court, as shall have jurisdiction of the amount or value
in controversy, within the county in which any portion of the
partition built or to be built, is or is to be located, to
determine the amount to be paid by one party to the other for the
just proportion of the costs of any construction, repair or
maintenance of the partition fence. The person who is required to
share in the cost of the construction, repair or maintenance of
the partition fence shall not be liable for more than one half of
the cost of the construction, repair or maintenance of a fence
which meets the standards of subdivision (e), section one [s
19-17-1(e)] of this article.
19-17-10. Liability of owner for
refusal to repair fence
When each of the adjoining owners of a partition fence has been
allotted a particular part thereof to maintain, and either owner
fails or refuses to keep in good repair the part of such fence so
allotted to him, he shall be liable in damages to the adjoining
owner for all damages occasioned by animals kept by him
trespassing on such adjoining premises as the result of such
failure or refusal to repair. The adjoining owner may serve
written notice on the owner whose duty it is to keep his part of
such fence in repair, requiring him to repair the same, and if
such owner fails or refuses so to do within ten days after the
service of such notice, the adjoining owner may repair such part
of the fence, and the owner whose duty it is to keep the same in
repair shall be liable to him for all the expenses of such repair.
19-17-11. Presumptions as to
sufficiency of fence
In any controversy in which the sufficiency of a fence under the
provisions of this chapter shall come in question, it shall be
presumed that the same was, at the time to which such controversy
relates, a lawful fence and in good condition and repair, unless
the contrary be proven.
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ARTICLE
18. GENERAL STOCK LAW
19-18-1.
Stock trespassing on grounds of another; damages
If any horse, mule, ass, jennet, cattle, sheep, swine, or goat
shall enter into any grounds, the owner or manager of any such
stock shall be liable to the owner or tenant of such grounds for
any damage he may sustain thereby, and the party so injured may,
if he find such stock on his premises, impound them, or a
sufficient number thereof, subject to the provisions of sections
eight, nine and ten [ss 19-18-8 to 19-18-10] of this article,
until such damages and costs of keeping have been paid.
19-18-2. Unlawful running at large
of stock on road or railroad right-of-way
It shall be unlawful for the owner or manager of any horse, mule,
ass, jennet, cattle, sheep, goat or hog, to negligently permit it
to run at large on any public road or highway or railroad
right-of-way, and should any such stock, while so negligently
allowed to run at large, injure or destroy the property of another
while so running at large, the owner or manager thereof shall be
guilty of a misdemeanor, and, upon conviction thereof, shall be
fined not less than five dollars nor more than ten dollars.
19-18-3. Unlawful running at large
of certain male animals and swine
It shall be unlawful for any stallion, jack or bull over one year
old, buck sheep over four months old, buck goat over six months
old, or swine, to run at large, and the owner or manager of any
such stock running at large shall be guilty of a misdemeanor, and,
upon conviction thereof, shall be fined not less than five nor
more than ten dollars.
19-18-4. Unlawful running at large
of stock of nonresidents
It shall be unlawful for any horse, mule, ass, jennet, cattle,
sheep, swine, or goat owned by any person not a citizen of this
State to run at large in this State.
19-18-5. Liability of owner for
damage by stock unlawfully running at large
Should any stock, while running at large contrary to the
provisions of sections one, two, three or four [ss 19-18-1,
19-18-2, 19-18-3 or 19-18-4] of this article, injure or destroy
the property of another, the owner or manager of any such stock
shall, notwithstanding any penalty imposed by said sections, be
liable to the party whose property shall have been injured or
destroyed for the amount of damage sustained by him by reason of
such injury or destruction. And the party so injured may, if he
find such stock on his premises, impound them, or a sufficient
number thereof, subject to the provisions of sections eight, nine
and ten [ss 19-18-8 to 19-18-10] of this article, until such
damages and costs of keeping be paid.
19-18-6. Impounding stock
unlawfully running at large
It shall be lawful for any person finding any stock running at
large contrary to the provisions of sections two, three or four [ss
19-18-2, 19-18-3 or 19-18-4] of this article, to impound such
stock, subject to the provisions of sections eight, nine and ten [ss
19-18-8 to 19-18-10] of this article, until the costs of keeping
such stock be paid.
19-18-7. Forcible retaking of
impounded stock; penalty
Any person who shall forcibly take possession of any stock
impounded under the provisions of sections one, five or six [ss
19-18-1, 19-18-5 or 19-18-6] of this article, or section one of
article nineteen of this chapter, without paying the amount
therein allowed the person so impounding such stock, shall be
guilty of a misdemeanor, and, upon conviction thereof, shall be
fined not more than fifty dollars.
19-18-8. Impounding stock when
owner is known resident of State; arbitration of damages; right to
sell impounded stock
If the owner of any stock impounded under the provisions of this
article, or article nineteen of this chapter, be a resident of
this State and known to the person impounding the stock, such
person shall, within three days from the date thereof, serve
written notice on such owner stating therein, (a) the stock
impounded, setting forth the number of each kind and the natural
or artificial marks of each one of every kind, (b) the date such
stock was taken up, (c) the place where impounded, (d) the cause
for impounding the stock, and (e) the amount claimed as damages,
if any, by reason of the injury or destruction of property by such
stock and the costs for keeping the same, for which such person
shall be entitled to an amount not to exceed that allowed a
sheriff for keeping similar stock. If the owner considers the
amount claimed excessive, he shall forthwith serve written notice
on the person impounding the stock that he has appointed one
freeholder, naming him, to ascertain the injury and damages
sustained and the costs for keeping the stock. The person
impounding the stock shall forthwith appoint one freeholder, and
the two thus appointed shall appoint a third. Should either party
fail or refuse to make such appointment within twenty-four hours
after being notified so to do, any justice [magistrate] of the
county may do so on application of either party. The freeholders
appointed shall act as arbitrators and, after being duly sworn,
shall ascertain the injury and damages sustained, if any, and the
costs for keeping such stock. The decision of any two of the
arbitrators shall be final and shall be reduced to writing and a
copy thereof furnished to each of the parties. Each arbitrator
shall be allowed a fee of two dollars for his services, which
shall be paid by the party against whom the decision is made.
Within three days after the arbitrators have rendered their
decision, or, in case no arbitration is demanded by the owner,
within three days from the service of the first notice required by
this section, the person impounding the stock shall advertise and
sell the same as provided in section ten [s 19-18-10] of this
article, unless the damages and costs be sooner paid.
19-18-9. Impounding stock when
owner is unknown or a nonresident
If the owner of any stock impounded under the provisions of this
article, or article nineteen of this chapter, be a nonresident of
this State, or unknown to the person impounding such stock, such
person shall, within three days from the date thereof, appear
before a justice of the peace [magistrate] of the county wherein
the stock was taken up and make and file his affidavit, setting
forth therein the facts required in the first notice provided in
section eight [s 19-18-8] of this article and that the owner of
the impounded stock is a nonresident of this State, or is unknown
to the affiant, and within twenty-four hours thereafter shall
advertise the impounded stock for sale and sell the same as
provided in section ten [s 19-18-10] of this article, unless the
damages and all costs be sooner paid. Any person claiming right or
ownership to such stock may appear before such justice
[magistrate] and file his affidavit showing that he is the lawful
owner of the stock or entitled to possession thereof, and, at any
time before sale, upon presentation of a certificate of such
justice [magistrate] of the filing of such affidavit and payment
of the amount claimed as damages and all costs, shall be entitled
to repossess his stock. If such person considers the amount
claimed excessive, he shall, after filing such affidavit,
forthwith serve written notice on the person impounding the stock
that he has appointed one freeholder, naming him, to ascertain the
injury and damages sustained and the costs for keeping the stock,
the service of which notice shall stay any sale which may have
been advertised prior thereto. Two other arbitrators shall then be
appointed and the injury and damages and costs of keeping
ascertained as provided in section eight [s 19-18-8] of this
article and the impounded stock readvertised for sale within the
time prescribed in said section, unless the damages and costs be
sooner paid: Provided, That in all cases where a citizen of this
State may claim right or ownership to stock impounded under
section four [s 19-18-4] of this article, the person so claiming
shall file with such justice [magistrate] his affidavit showing
that he is a citizen of this State, that the stock impounded is
bona fide his property, and that he did not acquire right thereto
for the purpose of defeating the provisions of said section four,
and, upon presentation of a certificate of such justice
[magistrate] of the filing of such affidavit and the payment of
all costs other than that for the keeping of the stock, at any
time before sale, shall be entitled to repossess his stock, but
such repossession shall in nowise affect any right of action
against the owner for damages sustained by reason of the trespass
of his stock.
19-18-10. Sale of impounded stock;
disposition of proceeds
The sale of stock impounded under the provisions of this article,
or article nineteen of this chapter, shall be at public auction to
the highest bidder for cash, and shall be advertised by posting
notices thereof in three public places in the district wherein the
stock is impounded at least ten days preceding the day of sale,
and a copy of the first notice required by section eight [s
19-18-8] of this article, or, in case the owner of the stock to be
sold is unknown or a nonresident of the State, a copy of the first
affidavit required by section nine [s 19-18-9] of this article
shall be attached to and posted with each sale notice. The
proceeds of the sale shall be applied; first, to the payment of
all costs incident to the sale; second, to the payment of any
damages sustained and costs of keeping the impounded stock; and
third, the residue, if any, shall be paid to the owner of the
stock sold; if the owner be unknown and application therefor be
not made within ninety days from the day of sale, the same shall
be paid into the county treasury.
19-18-11. Entry of stock of
nonresidents without consent of landowner prohibited
It shall be unlawful for any person who is not a resident of
this State to drive, or cause, or suffer, or permit to be driven,
any of his cattle, horses, hogs or sheep on any of the lands of
any citizen of this State, whether such lands be inclosed or not,
without permission of the owner or owners for that purpose first
had and obtained.
19-18-12. Entry of stock of
nonresidents deemed trespass; damages
Every entry of any such cattle, horses, hogs or sheep contrary to
the provisions of section eleven [s 19-18-11] shall be deemed in
law a trespass by the owner, person or persons having the charge
or care of such cattle, horses, hogs or sheep, and the owner of
all such cattle, horses, hogs or sheep shall be liable in damages
to the person or persons aggrieved, in a sum not exceeding twenty
cents on each head of horses and cattle and ten cents on each head
of hogs or sheep thus trespassing, for each and every day that
they shall be and remain on the lands or premises of any citizen
in this State, to be recovered before any justice of the peace
[magistrate] of the county in which such trespasses may have been
committed.
Reviewed by AAHS in December 2001.
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