                                                                   Nov 16 2015, 8:25 am




ATTORNEY FOR APPELLANT                                   ATTORNEY FOR APPELLEE ROBIN
John J. Schwarz, II                                      LATIMER
Schwarz Law Office, PC                                   Martin R. Lucas
Hudson, Indiana                                          North Judson, Indiana
                                                         ATTORNEY FOR APPELLEE
                                                         DMK&H FARMS, INC.
                                                         James N. Clevenger
                                                         Wyland, Humphrey & Clevenger,
                                                         LLP
                                                         Plymouth, Indiana



                                           IN THE
    COURT OF APPEALS OF INDIANA

John Belork,                                             November 16, 2015
Appellant-Petitioner,                                    Court of Appeals Case No.
                                                         75A04-1503-MI-100
        v.                                               Appeal from the Starke Circuit
                                                         Court
Robin Latimer,                                           The Honorable Kim Hall, Judge
Davis Township Trustee                                   Trial Court Cause No.
and                                                      75C01-1406-MI-17
DMK&H Farms, Inc.
Appellees-Respondents.




Brown, Judge.



Court of Appeals of Indiana | Opinion 75A04-1503-MI-100| November 16, 2015                Page 1 of 23
[1]   John Belork appeals the trial court’s order granting a motion for judgment on

      the evidence by Robin Latimer as the Davis Township Trustee and DMK&H

      Farms, Inc. (“DMK&H” and, together with Latimer, the “Appellees”) with

      respect to Belork’s claim under Indiana’s Partition Fence statutes found at Ind.

      Code §§ 32-26-9. Belork raises three issues which we consolidate and restate as

      whether the court erred in entering judgment on the evidence in favor of the

      Appellees. We affirm.


                                        Facts and Procedural History

[2]   Belork is the owner of real property in Starke County, Indiana, which he uses in

      part to raise cattle. Jan Ferch is the owner of real property along the eastern

      boundary of Belork’s property, and Ferch’s farming operation includes grain

      production. DMK&H is the owner of real property along the southern

      boundary of Belork’s property, and its farming operation includes grain

      production. At some point, Belork rebuilt portions of fencing along the eastern

      and southern boundaries of his property, specifically, the “southern half” of a

      fence along his eastern boundary which was adjoining Ferch’s property and the

      “western half” of a fence along his southern boundary which was adjoining

      DMK&H’s property.1 Transcript at 24. Ferch did not complete the northern

      half of the fence along the Belork-Ferch property line, and DMK&H did not




      1
       At the February 9, 2015 hearing, Belork testified that he had completed these portions of the fence ten or
      twelve years ago. He also indicated that, previously, there was a woven wire fence along the southern
      boundary of his property.

      Court of Appeals of Indiana | Opinion 75A04-1503-MI-100| November 16, 2015                        Page 2 of 23
      complete the eastern half of the fence along the Belork-DMK&H property line.

      Belork requested that Latimer as the Davis Township Trustee require Ferch and

      DMK&H to construct or fund the construction of the remainder of the fences

      along the shared boundaries. Latimer did not grant Belork’s request.


[3]   In June 2014, Belork filed a Petition for Writ of Mandamus pursuant to Ind.

      Code §§ 34-27-3 naming Latimer, as the Davis Township Trustee, as the

      respondent.2 Belork alleged that his farm is used primarily for the pasturing of

      cows, that the land owned by Ferch and DMK&H is used for agriculture, that

      he had rebuilt portions of the fence along the southern and eastern boundaries

      of his property, and that he had requested that Ferch and DMK&H rebuild

      their respective portions of the fence line and they refused to do so. He further

      alleged that he had requested Latimer as the Davis Township Trustee to adhere

      to her statutory duty to see that the line fence was completed and that Latimer

      wholly failed after reasonable requests to do so. Belork requested that the court

      order Latimer to adhere to her obligations and that the court award him

      attorney fees. DMK&H filed a motion to intervene as a respondent, and the

      court granted the motion.




      2
       Indiana Code § 34-27-1-1 abolished the writ of mandate but allows for an action called an action for
      mandate. Malone v. Price, 755 N.E.2d 213, 217 (Ind. Ct. App. 2001); Ind. Code § 34-27-1-1 (“Writs of
      mandate in the circuit and superior courts are abolished. Causes of action previously remedied by writs of
      mandate may be remedied by means of complaint and summons in the name of the state on relation of the
      party in interest in the circuit, superior, and probate courts as other civil actions. Such actions are to be
      known as actions for mandate.”). As noted below, Indiana Code §§ 34-27-3 govern actions for mandate.

      Court of Appeals of Indiana | Opinion 75A04-1503-MI-100| November 16, 2015                         Page 3 of 23
[4]   On February 9, 2015, the court held a bench trial at which the parties by

      counsel presented arguments and Belork testified. His counsel argued that Ind.

      Code §§ 32-26-9 “employs what has always been known as the right-hand rule,”

      which exists where two adjoining property owners, facing each other at the

      center of the fence along their shared property boundary, each “agree to build

      [the] right half from the center of the property to the end of the property line.”

      Transcript at 8. His counsel argued that Belork built his half of the eastern and

      southern fence lines but that Ferch and DMK&H have not built their respective

      halves and Latimer as the trustee has refused to follow the statute. DMK&H’s

      counsel argued in part that there are overgrown trees and shrubs on Belork’s

      property north of the fence and that it is impossible to access the fence row, that

      Belork maintains cattle on his property while the other farms grow grain, and

      that there is a history of Belork’s cattle leaving his property and roaming

      DMK&H’s fields and causing damage. DMK&H’s counsel stated there had

      been a judgment in 2003 stemming from an injunction in 1997 to keep Belork’s

      cattle on his own property. Belork’s counsel stated it was disputed whether

      Belork built the western half of the new fence along the southern boundary of

      his property on the property line or on DMK&H’s property. His counsel also

      stipulated that, at one point, Belork owned the property which is now owned by

      Ferch.




      Court of Appeals of Indiana | Opinion 75A04-1503-MI-100| November 16, 2015   Page 4 of 23
[5]   The court asked why Ind. Code § 32-26-9-13 applies in this situation because

      DMK&H did not use the fence for any purpose whatsoever. Belork’s counsel

      stated that the statute applies if one of two adjoining parcels is agricultural. The

      court noted that the statute by its terms states that it applies to a fence that is

      “used by adjoining property owners as a partition fence.” Id. at 34. Latimer’s

      counsel argued that the partition fence statute applies when the fence is being

      used by both parties, that it makes sense for both parties to contribute to its

      maintenance, and that the statute does not state it applies where a fence “exists”

      between two parcels. Id. at 36. The court responded that, if both property

      owners receive a benefit from the fence, it would be fair for both owners to

      maintain the fence, and Latimer’s counsel replied that such was clearly the

      intent of the statute. DMK&H’s counsel then argued that the fence is of no

      benefit to DMK&H, that it is not using the fence, the fence has been in a state

      of disrepair for years, and that it had been in court in 2003 on the same issues.


[6]   Belork’s counsel responded that, although the majority of farms in the area are

      grain production farmers, there is still an interest for both sides to have a fence,

      and that the only prerequisite for the statute to apply is that one of the parcels

      be used for agriculture. The court noted the statute does not refer to a fence

      that exists between adjoining property owners but to one that is used by the

      property owners, and asked Belork’s counsel what evidence he had that




      3
       Ind. Code § 32-26-9-1 provides: “A fence that is used by adjoining property owners as a partition fence,
      unless otherwise agreed upon by the property owners, is considered a partition fence and shall be repaired,
      maintained, and paid for as provided under this chapter.”

      Court of Appeals of Indiana | Opinion 75A04-1503-MI-100| November 16, 2015                        Page 5 of 23
      DMK&H “used” the partition fence. Id. at 41. Belork’s counsel replied that

      “[t]he only evidence . . . is that it is a fence that marks the property line as a

      partition.” Id. Belork’s counsel further stated that DMK&H was not keeping

      cattle, goats, sheep, or anything else loose on its property and that “I think their

      use is going to be limited to what marks the property line.” Id.


[7]   Belork testified that he raised cattle and used his property for pasturing them,

      that there had been a woven wire fence along the southern boundary of his

      property, and that “the new high-tensile wires actually touched the old woven

      wire fence post” and so the new fence is “directly on the line of the previous

      fence.” Id. at 58. When asked how long the previous fence had been there, he

      responded that “[t]he trustee made us put it in about 1948, 1949.” Id. at 59. He

      indicated that he did not have to bulldoze or excavate anything in order to

      install the new fence and was able to cut back branches and shrubs with

      nippers. When asked if DMK&H could build the eastern portion of the fence

      along the southern boundary of his property “under the same basically limited

      difficulties that you incurred,” Belork answered “[i]f I built it, they should be

      able to build it,” and when asked if DMK&H would have to bring in an

      excavator or bulldozer, he replied “I would hope not.” Id. at 60. When asked

      if it was feasible to rebuild the previous woven wire fence, Belork testified that,

      “because of the open land and the wind blows from the south, it turned up the

      fence line and the windbreak into a sand dune and a build up of sand.” Id. at

      61. He said that the woven wire fence “would help catch it and the sand would

      build up underneath it” and that his cattle “just stepped across” the woven wire


      Court of Appeals of Indiana | Opinion 75A04-1503-MI-100| November 16, 2015   Page 6 of 23
      fence “[b]ecause of the sand build up.” Id. at 62. Belork also testified that he

      sold the property owned by Ferch to her in 2000 or 2001.


[8]   On cross-examination, Belork indicated that the properties owned by Ferch and

      DMK&H are used primarily for growing crops. When asked what use Ferch

      has for the fence, he replied: “Because the sheriff has complained about trespass

      and cattle grazing, their wheat and corn crops, et cetera.” Id. at 66. When

      asked “[s]o really, the only use of the fence for them is a protection from you;

      that’s what you’re saying,” Belork answered “[t]hat’s what I’m saying.” Id. He

      agreed that the purpose of the fences is to keep his cattle on his property.


[9]   With respect to the fence he installed, Belork testified that the posts are a

      maximum of thirty-three feet apart, there are spacers in between the posts to

      keep the high tensile wires from spreading, the fence is a straight wire fence

      with five wires, the top wire is forty-eight inches off the ground, and that he can

      electrify two of the five wires at his option which he does on occasion. When

      asked if he “want[ed] to insist that [he had] the right to put an electric fence on

      the property line,” Belork replied “[i]t’s my option.” Id. at 80. Belork

      acknowledged that his cattle “got out of his farm” in both 2014 and 2015, and

      that he did not keep a tally of the number of times. Id. at 83. When asked how

      many cattle left his property in January, Belork answered “[p]robably all of

      them” and that he had about forty cattle. Id. at 84. He stated that, to keep his

      cattle from leaving his property, he “run[s] a second, temporary electric fence.

      In other words, a single wire, hot wire that keeps the cows home.” Id. at 87-88.



      Court of Appeals of Indiana | Opinion 75A04-1503-MI-100| November 16, 2015   Page 7 of 23
[10]   Following the presentation of the evidence, counsel for the Appellees moved for

       judgment on the evidence, arguing that they do not use the fence and thus the

       fence partition statute does not apply. In response, Belork’s counsel argued

       that, if DMK&H “decides to start raising cattle or other type of animals, well

       haven’t they just been totally benefited by [] Belork having put up the entire

       fence?” Id. at 95. His counsel asserted: “I think that’s what the statute

       anticipates is that from time to time, some people grain farm. They may bring

       animals in. They may not. But there’s again, there may be a time when both

       parties are benefiting from the use of the fence.” Id. at 95-96.


[11]   The court asked whether, in a situation where there is farmland adjacent to a

       subdivision and the owner of the agricultural land decided he wanted to raise

       cattle, “each one of those residential property owners would be required to

       build a fence one-half of their property to the right to keep the cattle out of

       coming into their children’s sandbox, and the swing set,” and Belork’s counsel

       replied “[t]hat would be correct.” Id. at 96-97. The court also noted that the

       statute refers to structures that can hold cattle, hogs, horses, mules, and sheep

       and said that the statute “is meant for the purpose of keeping your own animals

       on your own side of the property” and “anticipates that both property owners

       have livestock.” Id. at 99. The court noted that, “[t]o me, common sense has to

       come into play here,” that “[c]ommon sense is, right from the very beginning, a

       fence that is used by adjoining property owners as a partition fence,” and

       “[t]hat means to me, this statute and this fence law is for the purpose of keeping

       animals inside your own property for adjoining property owners” and is “not


       Court of Appeals of Indiana | Opinion 75A04-1503-MI-100| November 16, 2015   Page 8 of 23
       meant to apply to situations where . . . a property owner who has agriculture

       property that adjoins a subdivision in a city decides to have livestock” and is

       “not going to require each one of those residential areas to construct half a

       fence to keep the cattle from coming into their back yards.” Id. at 99-100.


[12]   The court granted the Appellees’ motion and denied Belork’s petition, and

       entered a written order granting the Appellees’ motion for judgment on the

       evidence which included the following findings:


               1) [Belork] directed this Court to Indiana Code 32-26-9 as the
               sole statutory authority to support his position.
               2) I.C. 32-26-9-1 provides as follows:
                        “A fence that is used by adjoining property owners as a
                        partition fence, unless otherwise agreed upon by the
                        property owners, is considered a partition fence and shall
                        be repaired, maintained, and paid for as provided under
                        this chapter.”
               3) When one “uses” a fence, he derives a benefit from the fence.
               4) The benefit contemplated by the fence addressed by the
               statute is the control of one’s own livestock.
               5) In other words, the statute sets forth the responsibilities of
               adjoining property owners who both “use” the fence to keep their
               livestock on their own property.
               6) I.C. 32-26-9-3 reinforces that the application of the statute is
               to livestock when it discusses the need to secure, “. . . hogs,
               sheep, cattle, mules, and horses or other domestic animals.”
               7) It is clear that the legislature enacted the statue [sic] to set forth
               the respective responsibilities of adjoining land owners to
               maintain a partition fence to keep their livestock within the
               boundaries of their respective properties.


       Court of Appeals of Indiana | Opinion 75A04-1503-MI-100| November 16, 2015      Page 9 of 23
               8) If the legislature had intended to have the statute applicable to
               all adjoining property owners, regardless of any benefit derived
               from the fence, they could have simply crafted the statute to
               state, “A fence that exists between adjoining property owners, . .
               . .”
               9) To interpret the statute otherwise would require all property
               owners, including residential, to incur the cost of one-half of a
               fence to assist their neighbor in keeping his livestock on his own
               property.
               10) The evidence is uncontroverted that [Belork] is the only
               property owner with livestock and the only property owner who
               “uses” the fence. Belork uses the fence to keep his livestock on
               his property.
               11) The evidence is uncontroverted that the adjoining property
               owners, DMK&H [] and [] Ferch, are grain farmers, do not “use”
               the fence, and derive no benefit from the fence.
               12) The Court declines to apply I.C. 32-26-9 to the
               uncontroverted facts of this case.
               13) [Belork] cited no statutory authority nor Indiana case law
               that would direct this Court to reach any other conclusion.

       Appellant’s Appendix at 5-6.


                                       Issue and Standard of Review

[13]   The issue is whether the trial court erred in granting the Appellees’ motion for

       judgment on the evidence. Indiana Trial Rule 50 provides that a motion for

       judgment on the evidence shall be granted “[w]here all or some of the issues in

       a case . . . are not supported by sufficient evidence or a verdict thereon is clearly

       erroneous as contrary to the evidence because the evidence is insufficient to

       support it . . . .” Ind. Trial Rule 50(A). A motion for judgment on the evidence


       Court of Appeals of Indiana | Opinion 75A04-1503-MI-100| November 16, 2015   Page 10 of 23
       should be granted “only when there is a complete failure of proof because there

       is no substantial evidence or reasonable inference supporting an essential

       element of the claim.” Coldwell Banker Roth Wehrly Graber v. Laub Bros. Oil Co.,

       949 N.E.2d 1273, 1282 (Ind. Ct. App. 2011) (quoting Raess v. Doescher, 883

       N.E.2d 790, 794 (Ind. 2008) (quoting Dahlin v. Amoco Oil Corp., 567 N.E.2d 806,

       810 (Ind. Ct. App. 1991), trans. denied), reh’g denied), trans. denied. Upon

       appellate review of a trial court’s ruling on such a motion, the reviewing court

       must consider only the evidence and reasonable inferences most favorable to

       the nonmoving party. Id. at 1282-1283.


[14]   Ind. Code § 34-27-3-1 governs actions for mandate and provides:

               An action for mandate may be prosecuted against any inferior
               tribunal, corporation, public or corporate officer, or person to
               compel the performance of any:
                        (1) act that the law specifically requires; or
                        (2) duty resulting from any office, trust, or station.

[15]   An action for mandate, an extraordinary remedy of an equitable nature, is

       generally viewed with disfavor. Malone v. Butts, 974 N.E.2d 1025, 1027 (Ind.

       Ct. App. 2012) (citation omitted), trans. denied. Mandamus does not lie unless

       the petitioner has a clear and unquestioned right to relief and the respondent

       has failed to perform a clear, absolute, and imperative duty imposed by law. Id.

       (citation omitted). The mandamus action does not lie to establish a right or to

       define and impose a duty. Id. (citation omitted). Public officials, boards, and

       commissions may be mandated to perform ministerial acts when under a clear


       Court of Appeals of Indiana | Opinion 75A04-1503-MI-100| November 16, 2015   Page 11 of 23
       legal duty to perform such acts. Id. (citation omitted). Mandate actions exist

       only where no adequate remedy at law is available. Id. (citation omitted).


                                              The Parties’ Arguments

[16]   Belork asserts that the legislature amended the Indiana Fence Law in 2003 by

       adding Ind. Code § 32-26-9-0.5 to define agricultural land and that, if the

       legislature “intended to limit the Indiana Fence Law to situations where both

       adjoining landowners ‘used’ the partition fence, i.e. owned livestock, surely the

       legislature would have provided an alternative definition to ‘agricultural land’

       or directly stated that the Indiana Fence Law only applies when all adjoining

       owners raise livestock.” Appellant’s Brief at 16.


[17]   Latimer argues that Indiana common law places a duty upon the owner of an

       animal to confine it, that this principle is codified at Ind. Code § 32-26-2-2,4 that

       Belork conceded that the intention of the fence is to contain his cattle on his

       property, and that he is solely responsible for the containment of his livestock.

       Latimer further argues that the statute requires that the adjoining property

       owners “use” the fence “as a partition fence,” that this “implies that not all

       fences are partition fences,” and that “this implication is borne out by I.C. § 32-

       26-2-15.” Appellee Latimer’s Brief at 5. She also argues that no testimony or

       evidence suggested that fences are helpful to modern grain farming operations




       4
         Ind. Code § 32-26-2-2(b) provides that, in the absence of adoption of an open range ordinance by the county
       commissioners, “if a domestic animal breaks into an enclosure or enters upon the property of another person,
       it is not necessary for the person injured by the actions of the domestic animal to allege or prove the existence
       of a lawful fence to recover for damage done.”

       Court of Appeals of Indiana | Opinion 75A04-1503-MI-100| November 16, 2015                         Page 12 of 23
       and that nothing in the statute even remotely suggests that one of the purposes

       of the law is wind erosion control.


[18]   DMK&H maintains that the evidence presented by Belork was not whether a

       partition was needed to divide the properties but rather was a request to use

       Ind. Code § 32-26-9-1 to force his neighbors into rebuilding a fence his cattle

       had destroyed and to stop his cattle from trespassing on DMK&H’s lands.


                                              Indiana Fence Law

[19]   The statutory provisions set forth in Ind. Code §§ 32-26 relate to fences in

       Indiana and address issues such as the recording of agreements to erect and

       repair fences and fencemarks, the enclosure of land subject to flooding, and the

       cutting and trimming of live fences along public highways and between

       adjoining lands. Partition fences are governed primarily by Ind. Code §§ 32-26-

       9 and certain sections of Ind. Code §§ 32-26-2.


[20]   Ind. Code §§ 32-26-9 is titled “Partition Fences.” Ind. Code § 32-26-9-0.5

       provides:


               (a) As used in this section, “agricultural land” means land that is:
                        (1) zoned or otherwise designated as agricultural land;
                        (2) used for growing crops or raising livestock; or
                        (3) reserved for conservation.
               (b) This chapter does not apply to a fence that separates two (2)
               adjoining parcels of property unless at least one (1) of the
               adjoining parcels is agricultural land.



       Court of Appeals of Indiana | Opinion 75A04-1503-MI-100| November 16, 2015   Page 13 of 23
[21]   Ind. Code § 32-26-9-1 is titled “Existing fences” and provides:


               A fence that is used by adjoining property owners as a partition
               fence, unless otherwise agreed upon by the property owners, is
               considered a partition fence and shall be repaired, maintained,
               and paid for as provided under this chapter.

[22]   Ind. Code § 32-26-9-2 is titled “Lands outside or abutting municipal boundary”

       and provides:


               (a) The owner of a property that:
                        (1) is located outside;
                        (2) abuts; or
                        (3) is adjacent to;
               the boundary of the corporate limits of a town or city shall
               separate the owner’s property from adjoining properties by a
               partition fence constructed upon the line dividing or separating
               the properties regardless of when the properties were divided.
               (b) Except as otherwise provided in this chapter, and if a division
               of the partition fence has not been made between the property
               owners for the building, repairing, or rebuilding of the partition
               fence:
                        (1) for a partition fence built along a property line than
                        [sic] runs from north to south:
                                (A) the owner whose property lies to the east of the
                                fence shall build the north half of the fence; and
                                (B) the owner whose land lies to the west of the
                                fence shall build the south half of the fence; and
                        (2) for a partition fence built along a property line that runs
                        from east to west:
                                (A) the owner whose property lies north of the fence
                                shall build the west half of the fence; and

       Court of Appeals of Indiana | Opinion 75A04-1503-MI-100| November 16, 2015    Page 14 of 23
                                (B) the owner whose property lies to the south of the
                                fence shall build the east half of the fence.
               (c) Notwithstanding subsection (b), if either property owner has
               constructed one-half (½) of a partition fence that is not the
               portion required under subsection (b) and has maintained that
               portion of the partition fence for a period of not less than five (5)
               years, the property owner may continue to maintain the portion
               of the fence.
               (d) If a property owner fails to build, rebuild, or repair a partition
               fence after receiving notice under this chapter, the township
               trustee of the township in which the property is located shall
               build, rebuild, or repair the fence as provided under this chapter.

[23]   Ind. Code § 32-26-9-3, titled “Defaulting landowner; description of lawful

       partition fence; floodgates across water courses,” relates in part to the role of a

       township trustee and provides in part:

               (a) A partition fence shall be built, rebuilt, and kept in repair at
               the cost of the property owners whose properties are enclosed or
               separated by the fences proportionately according to the number
               of rods or proportion of the fence the property owner owns along
               the line of the fence, whether the property owner’s title is a fee
               simple or a life estate.
               (b) If a property owner fails or refuses to compensate for building,
               rebuilding, or repairing the property owner’s portion of a
               partition fence, another property owner who is interested in the
               fence, after having built, rebuilt, or repaired the property owner’s
               portion of the fence, shall give to the defaulting property owner
               or the defaulting property owner’s agent or tenant twenty (20)
               days notice to build, rebuild, or repair the defaulting property
               owner’s portion of the fence. If the defaulting property owner or
               the defaulting property owner’s agent or tenant fails to build,
               rebuild, or repair the fence within twenty (20) days, the



       Court of Appeals of Indiana | Opinion 75A04-1503-MI-100| November 16, 2015   Page 15 of 23
        complaining property owner shall notify the township trustee of
        the township in which the properties are located of the default.
                                              *****
        (d) The township trustee who receives a complaint under this
        section shall:
                 (1) estimate the costs for building, rebuilding, or repairing
                 the partition fence; and
                 (2) within a reasonable time after receiving the complaint,
                 make out a statement and notify the defaulting property
                 owner of the probable cost of building, rebuilding, or
                 repairing the fence.
        If twenty (20) days after receiving a notice under this subsection
        the defaulting property owner has not built, rebuilt, or repaired
        the fence, the trustee shall build or repair the fence. The trustee
        may use only the materials for the fences that are most
        commonly used by the farmers of the community.
                                              *****
        (f) A lawful partition fence is any one (1) of the following that is
        sufficiently tight and strong to hold cattle, hogs, horses, mules,
        and sheep:
                 (1) A straight board and wire fence, a straight wire fence, a
                 straight board fence, or a picket fence four (4) feet high.
                 (2) A straight rail fence four and one-half (4 ½ ) feet high.
                 (3) A worm rail fence five (5) feet high.

Other subsections of Ind. Code § 32-26-9-3 relate to, among other things, when

a fence is sought on a township line, when a trustee is disqualified to act, when

a ditch or creek crosses the division line between two property owners, and

when floodgates or similar structures should be constructed. See Ind. Code §§

32-26-9-3(c), (e), (g)-(m).


Court of Appeals of Indiana | Opinion 75A04-1503-MI-100| November 16, 2015   Page 16 of 23
[24]   Ind. Code § 32-26-9-6 (eff. Jul. 1, 2003),5 titled “Construction and application of

       law,” provides:


               This chapter shall be liberally construed in favor of the objects
               and purposes for which it is enacted and shall apply to all
               agricultural land, whether enclosed or unenclosed, cultivated or
               uncultivated, wild or wood lot.

[25]   In addition, several sections of Ind. Code §§ 32-26-2, titled “Enclosures,

       Trespassing Animals, and Partition Fences,” relate to partition fences. In

       particular, Ind. Code § 32-26-2-15 is titled “Existing fence becoming partition

       fence; compensation” and provides:

               When a fence that is already erected becomes a partition fence
               because previously unenclosed property is enclosed, the person
               who encloses the previously unenclosed property shall pay to the
               owner of the existing fence fifty percent (50%) of the value of the
               existing fence, as estimated by the owner of the existing fence.

       Ind. Code § 32-26-2-18 is titled “Notice; intention to remove partition fence”

       and provides:

               This section applies to a person who ceases to use the person’s
               property or opens the person’s enclosures. A person to whom
               this section applies may not remove any part of the person’s
               fence that forms a partition fence between the person’s property
               and the enclosure of any other person until the person to whom
               this section applies has first given six (6) months notice of the



       5
         Ind. Code § 32-26-9-0.5 became effective on July 1, 2003, and Ind. Code § 32-26-9-6 was amended,
       effective on that date, to include the word “agricultural” in referring to “agricultural land.” See Pub. L.
       No. 57-2003, §§ 1-2 (eff. Jul. 1, 2003).

       Court of Appeals of Indiana | Opinion 75A04-1503-MI-100| November 16, 2015                     Page 17 of 23
               person’s intention to remove the fence to any person who may be
               interested in the removal of the fence.

                                                    Discussion

[26]   We address whether the fences that exist and the fences Belork desires to be

       erected along the southern and eastern boundaries of his property constitute or

       would constitute partition fences under Ind. Code §§ 32-26-9 requiring

       DMK&H and Ferch to construct or fund the construction of portions of the

       fences. The first step in interpreting a statute is to determine whether the

       legislature has spoken clearly and unambiguously on the point in question. City

       of N. Vernon v. Jennings Nw. Reg’l Utils., 829 N.E.2d 1, 4 (Ind. 2005). When a

       statute is clear and unambiguous, we need not apply any rules of construction

       other than to require that words and phrases be taken in their plain, ordinary,

       and usual sense. Id. When a statute is susceptible to more than one

       interpretation, it is deemed ambiguous and thus open to judicial construction.

       Id. When faced with an ambiguous statute, our primary goal of statutory

       construction is to determine, give effect to, and implement the intent of the

       legislature. Id. To effectuate legislative intent, we read the sections of an act

       together in order that no part is rendered meaningless if it can be harmonized

       with the remainder of the statute. Id. We also examine the statute as a whole

       and do not presume that the legislature intended language used in a statute to

       be applied illogically or to bring about an unjust or absurd result. Id. at 4-5.


[27]   Ind. Code § 32-26-9-1 provides that a fence that “is used by adjoining property

       owners as a partition fence . . . is considered a partition fence and shall be
       Court of Appeals of Indiana | Opinion 75A04-1503-MI-100| November 16, 2015   Page 18 of 23
       repaired, maintained, and paid for as provided under this chapter.” (Emphases

       added). According to this section, in order for the provisions of Ind. Code §§

       32-26-9 to govern, a fence must be “used” by both adjoining property owners

       “as a partition fence” in order for the partition fence statues to be applicable.


[28]   Ind. Code § 32-26-9-0.5(b) provides that the partition fence chapter does not

       apply “unless at least one [] of the adjoining parcels is agricultural land.”

       Reading Ind. Code §§ 32-26-9-0.5 and -1 together so that neither section is

       rendered meaningless and both may be given effect, in order for the partition

       chapter to apply to a fence separating two adjoining parcels, the requirements of

       both sections must be satisfied. In particular, the provisions of Ind. Code §§ 32-

       26-9 govern a fence between two adjoining parcels where: (1) one of the two

       parcels is agricultural land under Ind. Code § 32-26-9-0.5 (providing the chapter

       does not apply “unless at least one [] of the adjoining parcels is agricultural

       land”); and (2) the fence is “used . . . as a partition fence” by the adjoining

       property owners. See Ind. Code § 32-26-9-1 (providing a fence “that is used by

       adjoining property owners as a partition fence” is governed by the chapter).

       While the legislature enacted Ind. Code § 32-26-9-0.5 effective in 2003 to

       provide the partition fence chapter was applicable where at least one of two

       adjoining parcels was agricultural land, it did not amend or revise the language

       of Ind. Code § 32-26-9-1 providing that the chapter applied to fences used as

       partition fences.




       Court of Appeals of Indiana | Opinion 75A04-1503-MI-100| November 16, 2015   Page 19 of 23
[29]   Further, several other sections suggest that a fence on the dividing line between

       two parcels may or may not necessarily be “used . . . as a partition fence.”

       Specifically, Ind. Code § 32-26-2-15 relates to an existing fence becoming a

       partition fence and provides in part that, when a fence “that is already erected

       becomes a partition fence because previously unenclosed property is enclosed, the

       person who encloses the previously unenclosed property shall pay to the owner

       of the existing fence fifty percent (50%) of the value of the existing fence.”

       (Emphases added). Ind. Code § 32-26-2-18 applies “to a person who ceases to

       use” the person’s property and provides that the person “may not remove any

       part of the person’s fence that forms a partition fence” without first complying

       with certain notice requirements. (Emphases added). By stating that a fence

       already erected can become a partition fence, and that a person can cease to use

       the person’s property and remove a fence, a part of which is a partition fence,

       these sections appear to indicate that a fence along a shared boundary may or

       may not necessarily be “used by adjoining property owners as a partition

       fence.”


[30]   Turning to the evidence before the trial court, we observe that the parties do not

       dispute that Belork would use fences constructed along the southern and eastern

       boundaries of his property to hold his cattle. Belork testified that the fence

       would help keep his cattle on his property. When asked “[s]o really, the only

       use of the fence for them is a protection from you; that’s what you’re saying,”

       Belork answered “[t]hat’s what I’m saying.” Transcript at 66. Also, when

       asked “and the intention of having these fences is to keep your cattle on your

       Court of Appeals of Indiana | Opinion 75A04-1503-MI-100| November 16, 2015   Page 20 of 23
       property,” Belork answered “Yes.”6 Id. at 67. Latimer argued that the partition

       fence statute applies to a fence which is used by both adjoining parcel owners

       and not to a fence which merely exists between two parcels, and DMK&H

       argued that the fence is of no benefit to it and that, as a grain farmer, it is not

       using the fence. The trial court was not required to credit Belork’s unsupported

       assertions that the fences would constitute capital improvements for the

       DMK&H and Ferch properties or control wind erosion such that the fences

       would be “used . . . as partition fences” by DMK&H and Ferch.


[31]   While Ind. Code §§ 32-26-9 provides a mechanism for adjoining parcel owners

       to share in the cost of maintaining a partition fence, the statute does not require

       township trustees or the courts to find that every fence on a shared boundary is

       used as a partition fence under Ind. Code § 32-26-9-1. In expressly providing

       that it governs a fence that is “used . . . as a partition fence,” a phrase which has




       6
         As to protection from cattle, statutory mechanisms exist by which a property owner may obtain
       compensation from the owner of the animal which has caused damage, see Ind. Code §§ 32-26-2-2 to -
       14; see also Blake v. Dunn Farms, Inc., 274 Ind. 560, 413 N.E.2d 560, 563 (1980) (observing that the
       keeper of an animal has the duty and responsibility to provide for the restraining and confinement of
       that animal), and, absent the adoption of a township ordinance allowing animals to run at large in
       unenclosed public areas which Belork has not established, Belork has the responsibility of confining his
       cattle and is responsible for the damage caused by his cattle upon entering the property of another
       person. See Ind. Code § 32-26-2-2(b) (stating that it applies in a township which has not adopted an
       ordinance allowing animals to run at large in unenclosed public areas and providing that, “[i]f an
       animal enters upon the property of another person, it is not necessary for the person injured by the
       actions of the domestic animal to allege or prove the existence of a lawful fence to recover for damage
       done”); Ind. Code § 32-26-2-1 (providing a “‘lawful fence’ means any structure typically used by
       husbandmen for the enclosure of property”); see also Ind. Code § 32-26-2-2(a) (stating that it applies in a
       township which has adopted an ordinance that allows domestic animals to run at large in unenclosed
       public areas and providing that, “[i]f a domestic animal breaks into an enclosure or enters upon the
       property of another person that is enclosed by a lawful fence, the person injured by the actions of the
       domestic animal may recover the amount of damage done”).


       Court of Appeals of Indiana | Opinion 75A04-1503-MI-100| November 16, 2015                    Page 21 of 23
not been altered in many years by the legislature, the Indiana partition fence

statute provides township trustees and courts with the ability or latitude to

avoid a possibly unwarranted or harsh result of requiring adjoining parcel

owners to equally contribute to the costs of a fence between them, where, as a

practical matter, the fence is used solely by one of the owners and requiring a

shared contribution would not be equitable under the circumstances. See Matter

of Estate of Wallis, 659 N.E.2d 423, 428 (Ill. Ct. App. 1995) (affirming the

decision of the trial court not to impose the costs of a new fence on a parcel

owner where the fence would be of no value to that owner and observing that

the state’s partition fence statute stated landowners were responsible for “a just

proportion” of a fence dividing their properties, that “[t]he nature of this phrase

indicates its intended flexibility so as to be able to consider the circumstances in

each individual case,” and that the legislature had not altered the statutory

language in many years).7 The trial court here determined that the evidence

was that DMK&H and Ferch do not use, and derive no benefit from, the fences




7
  To the extent Belork cites to Glass v. Dryden, 248 N.E.2d 54 (Ohio 1969), Gravert v. Neberall, 539
N.W.2d 184 (Iowa 1995), and In re Petition of Bailey, 626 N.W.2d 190, 193 (Minn. Ct. App. 2001),
which addressed the constitutionality of the fence statutes in those states, he does not argue that the
statutes discussed in those cases are similar to Indiana’s statute or similarly limited their applicability to
fences used as partition fences by adjoining parcel owners. See Ohio Rev. Code §§ 971.01 (providing a
partition fence is one “located on the division line between the adjoining properties of two owners”);
Iowa Code § 359A.1A (providing that “[t]he respective owners of adjoining tracts of land shall upon
written request of either owner be compelled to erect and maintain partition fences, or contribute
thereto, and keep the same in good repair throughout the year”); Minn. Stat. Ann. § 344.02 (providing
“[i]f adjoining land owners disagree as to the kind of fence to be built on any division line, the matter
must be referred to the fence viewers, who shall determine what kind of fence should be built on the line
and order it built”).


Court of Appeals of Indiana | Opinion 75A04-1503-MI-100| November 16, 2015                      Page 22 of 23
       and thus declined to apply Ind. Code §§ 32-26-9 to the facts of this case. The

       determination reached by the trial court is fair under the circumstances.


[32]   Based on Ind. Code §§ 32-26-9 and the evidence, we conclude that the fences

       Belork desires along the southern and eastern boundaries of his property would

       not constitute partition fences under Ind. Code §§ 32-26-9. We do not disturb

       the trial court’s order denying Belork’s petition for writ and granting the

       Appellees’ motion for judgment on the evidence.


                                                    Conclusion

[33]   For the foregoing reasons, we affirm the order of the trial court.


[34]   Affirmed.


       Riley, J., and Altice, J., concur.




       Court of Appeals of Indiana | Opinion 75A04-1503-MI-100| November 16, 2015   Page 23 of 23
