Fences and the Road Right-of-Way
Many landowners have land that borders a road. Iowa has specific laws about fences located within the right-of-way dating back to 1858.[i] A landowner can be told to remove a fence located within the highway right-of-way even if the right-of-way is established by easement. Unless the fence is an immediate and dangerous hazard, specific procedures need to be followed by the governmental agency before they can remove a fence and charge the owner for the removal costs.
What is a Highway Right-of-Way?
The highway right-of-way is “the total area of land, whether reserved by public ownership or easement, that is reserved for the operation and maintenance of a legally established public roadway.”[ii] This usually includes the road, shoulder, portions of the ditch, and/or buffer land.
The term “highway” is the broad term that includes all types of roadways, including streets, gravel road and asphalt.[iii] Iowa’s road system is defined by the governmental agency charged with maintenance and control over the road.[iv] Primary roads are under the jurisdiction of Iowa’s Department of Transportation (DOT).[v] The DOT decides which roads are included in the primary system and under its jurisdiction.[vi] Secondary roads are under county jurisdiction and overseen by the county board of supervisors.[vii] Streets within cities that are not primary or secondary roads are controlled by the city.[viii] The DOT makes maps available that show whether a road is primary or secondary here.
For secondary roads, the highway right-of-way is presumed to be 66 feet.[ix] However, the county board of supervisors can alter this presumption.[x] For primary roads, the highway right-of-way will vary.[xi] For primary roads in rural areas, the right-of-way varies depending on the construction needs of the road.[xii] Usually, the right-of-way dimensions are documented on the land record and can be found in the county recorder’s office.[xiii] Alternatively, there is a right-of-way division within the Iowa DOT and they should have documentation about any highway right-of-way under their jurisdiction. The website with their contact information is here.
Fences in the Right-of-Way
Fences located within the right-of-way are presumed to be illegal obstructions under Iowa law.[xiv] Anything that is “an impediment or hindrance which impedes, opposes, or interferes with free passage” is considered an obstruction.[xv] This definition is very broad and specifically includes growing crops, altering ditches or drainage tile, any unauthorized excavation or filling, and destroying plants intentionally placed in the right-of-way.[xvi] In general, any physical change to the right-of-way requires advanced permission, evidenced by a permit.[xvii]
Some fences are allowed in the right-of-way, but only if the DOT and county engineer have designated where the fence can go.[xviii] Possible consequences for erecting an unauthorized fence within the right-of-way are fines, a lien for the cost of removal, and an aggravated misdemeanor.[xix] However, before these consequences can occur, either the DOT or the county will need to give the landowner a chance to remove the fence unless the fence is considered an immediate and dangerous hazard.[xx]
Notice to the Landowner
If governmental agency responsible for the right-of-way believes that a fence is illegally within the right-of-way, they are responsible for notifying the “owner, occupant, or agent” of the land.[xxi] The notice must give the person at least 30 days to move the fence.[xxii] It also must identify the area where fences are not allowed.[xxiii]
The notice must be given to the owner in one of three ways. First, it could be sent by certified mail, meaning the sender received a receipt to prove mailing.[xxiv] Second, the notice could be hand-delivered by the sheriff or other third party following the Iowa Court Rules for personal service.[xxv] The third way is a “catch-all.” Delivery will be valid as long as the notice was delivered in a manner “reasonably calculated” to inform the owner.[xxvi]
Contesting the Notice
The government can ask a landowner to remove a fence, even if the fence has been standing for many years.[xxvii] However, if the owner believes the agency has overstepped its authority or made an error in locating where the right-of-way is located, they must ask the court for an injunction prior to the deadline identified in the notice.[xxviii]
The governmental authority responsible for the right-of-way can determine that the fence is an “immediate and dangerous hazard.” If they do, they have the authority to tear down the fence without notice to the owner.[xxix] Additionally, they can charge the owner for the cost of the removal and not be liable for any damage done while removing the fence.[xxx]
There has only been one Iowa case that discusses a dangerous fence.[xxxi] Whether a fence is dangerous requires examination of “all the surrounding circumstances including the nature of the hazard and the likelihood of harm if not immediately removed.”[xxxii] In this case, the fence was barbed wire and placed in the traveled road by an owner who wanted to reroute the road. Further, the road had no lights. The Iowa Supreme Court found that the governmental authority had correctly determined that it had the right to remove the fence without notice to the landowner.
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