Archive for Thursday, May 16, 2013

County commissioners called on to solve rural Baldwin fence disagreement

May 16, 2013

It's not very often that Douglas County commissioners meet in a pasture just north of Baldwin City — to look at a fence.

But their task wasn't just to look at a fence. They were called there Wednesday morning to settle a dispute between two farmers over where the fence is supposed to be and who should pay for fixing parts of it. And only the commissioners could do it.

It's an obscure arbitration process called "fence viewing," and under state laws that date back to the 1860s, it's a job county commissioners are required to perform whenever adjoining landowners cannot settle a fence dispute on their own.

It's also something that county officials say ought to be repealed, or at least modernized.

"I guess it's the first time this county has done it in about 20 years," said Commissioner Nancy Thellman. "Clearly it's not often used. But when you have two neighbors who don't see eye to eye, that's what we're elected to do."

The dispute under review Wednesday involves two farmers who lease land on either side of a fence on Eisenhower Road, just across from Baldwin Junior High School.

On the south side is Robin Dunn, who leases land from her aunt and uncle, Sally and Raymond Dunn. On the north side are Tim and Susan Barrett, who lease land from an elderly woman who no longer farms herself.

At one point, the Barretts leased land on both sides of the fence, and so Barrett removed part of the fence to give his cattle access to the stock pond on the other side. But since Dunn took over the lease, she has replaced the fence, but she says there are other parts that need to be repaired so that Barrett's bulls don't cross over and intermingle with her cows.

Meanwhile the Barretts dispute the location of the property line, saying a road used to separate the two parcels, and they believe the fence should be moved several feet to mark the true property line.

So how did the commissioners rule? They haven't yet. They may have to bring out a surveyor and the county attorney to gather more information to help settle the dispute.

County administrator Craig Weinaug cautioned that property owners should try to work out property disputes themselves, because resorting to a fence viewing can be a roll of the dice. Weinaug said commissioners are only required to come up with a resolution they deem to be "fair," and that their decision is final.

If a similar dispute arose between city residents, they might have to hire private surveyors, and possibly private attorneys, to work out the dispute. But Weinaug said under Kansas law, people in unincorporated parts of the county get that service for free from the county commissioners.

The county is required to pay each commissioner $7.50 for their morning of fence-viewing services — which probably didn't cover their time and, well, other expenses.

"There's a lot of time and expense involved in what we did because two neighbors can't get along with each other," said Weinaug, who estimated he put in at least 40 hours of work on his own trying to mediate the dispute before a formal fence viewing had to be scheduled.

In addition, he said, the clothes he wore to the viewing became so infested with ticks, he had to throw them away. "I'm not going to charge the county for that," he said, "and I advised the commissioners to do the same."


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