Charles H. Clark, Esq. Canajoharie
You have asked several questions concerning the obligations of adjoining landowners under section 300 of the Town Law, which requires a sharing of the cost of the erection or repair of a division fence between their lands.
Prior to 1974, section 300 required adjoining landowners, "except when they otherwise agree," to erect and maintain "a just and equitable portion of the division fence" or to agree to have no fence. Section 301 relieves each landowner from liability caused by his livestock on the adjoining land in those cases where there is an agreement to have no fence. Although both sections speak only of "animals", it is clear in the context of Article 18, of which sections 300 and 301 are part, that "animals" refers to livestock on farms in rural areas and not to household pets. (Cf. 1969 Op Atty Gen [Inf] 85.)
In 1973 in Sweeney v Murphy, 31 N.Y.2d 1042, the Court of Appeals affirmed without opinion the decision of the Appellate Division, Fourth Department, holding section 300 unconstitutional when applied to an adjoining landowner who did not have livestock (39 A.D.2d 306). In 1974, the Legislature amended section 300 to provide that an adjoining landowner "who does not keep animals thereon" has no obligation to erect, maintain, or repair a division fence under Article 18 (ch 560, § 1, L 1974). In 1976 the Legislature again amended section 300 by adding after "animals thereon" the words "within five years of the date" of erecting, maintaining, or repairing a division fence and provided for sharing of costs in applicable cases during the five years (ch 464, § 1, L 1976).
Section 300 as of today is inoperative if one of the adjoining landowners does not keep animals on his property at the time that a division fence is erected or repaired and within the ensuing five years does not change his mind and keep animals on his property. (Although not crystal clear, it would appear that obligations under Article 18 "run with the land". See section 302.) If the owner does change his mind within that period of time and keep animals, he must contribute 20% of what would have been his share of the original cost for each year or part of a year that he does have animals on his land. (The assumption seems to be that a division fence has a life of five years before or between repairs.)
We conclude that Article 18 of the Town Law requiring division fences and equitable sharing of the cost of erection, maintenance, and repair by adjoining landowners is applicable only if both landowners keep livestock on their lands, which includes a landowner who does not keep livestock at the time a fence is erected or repaired but does within five years thereafter.
Applying this conclusion to your specific questions, Article 18 obviously does not apply where neither landowner keeps livestock; applies where one owner who keeps livestock erects or repairs a division fence and the other owner begins to keep livestock within the ensuing five years; applies to an owner who keeps livestock even though he normally keeps them within an interior enclosure but only if the adjoining owner keeps livestock; and does not apply to an owner who keeps livestock but does not have an adjoining owner with a common boundary line.