43-23-1      Erection and maintenance of partition fence--Liability of owners of adjoining land.
43-23-2      Duty of adjoining owner of land to build half of partition fence.
43-23-3      Fence agreed to by owners of adjoining land is legal fence.
43-23-4      Description and specifications for legal partition fence--Wire spacing.
43-23-4.1      Legal fences for buffalo.
43-23-5      Neglect or refusal to erect and maintain half of legal fence--Enforcement by adjoining landowner--Service of notice and demand.
43-23-6      Aggrieved owner of adjoining land--Erection or repair of fence after notice and demand on delinquent owner--Recovery of costs and damages.
43-23-7      Erection of partition fence not required when earth is frozen.
43-23-8      Judgment for construction or repair of partition fence is lien upon land of delinquent owner.
43-23-9      Removal of partition fence restricted to repair or construction of new fence.
43-23-9.1      Privileges and obligations of persons in physical possession--Contract with owner--Rights and liabilities of parties absent contract.
43-23-10      Opening or injuring fence or gate as misdemeanor.

43-23-1. Erection and maintenance of partition fence--Liability of owners of adjoining land.

Unless adjoining landowners otherwise agree, every owner of land shall be liable for one-half of the expense of erecting and maintaining a partition fence between his own and adjoining lands. However, no owner of land is liable for such expense if neither keeps livestock on the affected tract of land and neither derives any other substantial benefit from the fence for a period of five years from the date of erection or repair of the fence.

Source: SL 1909, ch 197, § 1; RC 1919, § 10531; SL 1919, ch 204; SDC 1939, § 19.0101; SL 1988, ch 350, § 1.

43-23-2. Duty of adjoining owner of land to build half of partition fence.

Unless otherwise agreed upon, if adjoining landowners are liable for one-half of the expense of erecting and maintaining a partition fence pursuant to § 43-23-1, each owner of adjoining lands shall build that half of the fence which shall be upon his right hand when he stands upon his own land and faces the line upon which the proposed fence is to be built.

Source: SL 1909, ch 197, § 2; RC 1919, § 10532; SDC 1939, § 19.0102; SL 1988, ch 350, § 2.

43-23-3. Fence agreed to by owners of adjoining land is legal fence.

Any fence upon which owners of such adjoining lands may agree, shall be a legal fence.

Source: SL 1909, ch 197, § 3; RC 1919, § 10533; SDC 1939, § 19.0103 (1); SL 1949, ch 79.

43-23-4. Description and specifications for legal partition fence--Wire spacing.

Where such owners do not agree upon a different sort of fence, a legal partition fence shall consist of sound wood posts at least six and one-half feet long and four inches in diameter, and firmly set at least two feet in the earth and not over thirty feet apart, or concrete posts six feet or more in length, having a diameter of not less than four inches and having a reinforcing rod not less than one-fourth inch in diameter throughout the full length thereof, firmly set and spaced as in the case of wood posts, or of steel posts not less than five and one-half feet in length, firmly set at least seventeen inches in the earth and not over twenty feet apart, or a combination of steel and concrete or wood posts in a ratio of not more than three steel posts to one of wood or concrete as above specified, firmly set as aforesaid according to the type of post and not over twenty-five feet apart. Such posts shall be firmly braced at ends, corners, and gateways or openings, to prevent sagging, and upon them shall be firmly stretched and securely attached to each at least four strands of ordinary commercial barbed fencing wire, the lower strand to be eighteen inches, the next twenty-eight inches, the third thirty-eight inches, and the fourth forty-eight inches from the earth. A deviation of not more than two inches in the wire spacing shall be considered to be in compliance with this section.

Source: SL 1909, ch 197, § 3; RC 1919, § 10533; SDC 1939, § 19.0103 (2); SL 1949, ch 79; SL 1973, ch 274.

43-23-4.1. Legal fences for buffalo.

A legal fence for buffalo is the same as provided in § 43-23-4, except as provided in this section. A legal fence for buffalo may use smooth wire rather than barbed wire. All posts shall be of sufficient length to provide for fifty-four inches above the surface, and one additional strand of wire shall be included at fifty-four inches above the earth. The additional cost and maintenance of the legal fence for buffalo, other than an as provided in § 43-23-4, shall be borne by the owner or caretaker of the buffalo if only one of the parties partitioned possesses the buffalo.

Source: SL 2001, ch 224, § 3.

43-23-5. Neglect or refusal to erect and maintain half of legal fence--Enforcement by adjoining landowner--Service of notice and demand.

If any owner of any land who is liable for one-half of the expense of erecting and maintaining a partition fence pursuant to § 43-23-1 neglects or refuses to so erect and maintain one-half of a legal fence on the lines separating his land from adjoining land, the owner of the adjoining land may serve upon the delinquent owner a notice in writing demanding that the delinquent owner shall erect or repair, as the case may be, a legal fence along one-half of such line, describing it, within thirty days from the date of the service of the notice and demand upon him.

Source: SL 1909, ch 197, § 4; RC 1919, § 10534; SDC 1939, § 19.0104; SL 1988, ch 350, § 3; SL 1990, ch 350, § 1.

43-23-6. Aggrieved owner of adjoining land--Erection or repair of fence after notice and demand on delinquent owner--Recovery of costs and damages.

If a delinquent owner neglects or refuses to erect or repair a partition fence within the time specified in § 43-23-5, the aggrieved owner may erect or repair the partition fence. The aggrieved owner may recover the cost of erecting or repairing the partition fence in a civil action and, in addition, recover an amount to be determined by the court as compensation for the time spent by the aggrieved owner.

Source: SL 1909, ch 197, § 4; RC 1919, § 10534; SDC 1939, § 19.0104; SL 1990, ch 350, § 2.

43-23-7. Erection of partition fence not required when earth is frozen.

The delinquent owner shall not be required to build such partition fence at any season when the earth is frozen.

Source: SL 1909, ch 197, § 4; RC 1919, § 10534; SDC 1939, § 19.0104.

43-23-8. Judgment for construction or repair of partition fence is lien upon land of delinquent owner.

The judgment entered for construction or repair of a partition fence shall be a lien upon the land of the delinquent owner for which it was constructed, superior to all other liens thereon except taxes.

Source: SL 1909, ch 197, § 4; RC 1919, § 10534; SDC 1939, § 19.0104.

43-23-9. Removal of partition fence restricted to repair or construction of new fence.

If adjoining owners of land have shared the expense of erecting and maintaining a partition fence pursuant to the provisions of this chapter, neither owner shall have the right as against the owner of the adjoining lands to remove the same or any part thereof, except for the purpose of making immediate repairs or constructing a new fence.

Source: SL 1909, ch 197, § 1; RC 1919, § 10531; SL 1919, ch 204; SDC 1939, § 19.0101; SL 1988, ch 350, § 4.

43-23-9.1. Privileges and obligations of persons in physical possession--Contract with owner--Rights and liabilities of parties absent contract.

For the purposes of §§ 43-23-1 to 43-23-9, inclusive, any person who is in physical possession of real property, whether by fee, lease, conveyance, or other lawful means, has the same privileges and obligations as the owner of such property. If the person in physical possession of real property is different from the owner of such property, they may provide for the disposition of rights and responsibilities pursuant to §§ 43-23-1 to 43-23-9, inclusive, by contract. In the absence of such a contract, both the person in physical possession of real property and the owner of such property may, individually or jointly, exercise such rights and be held liable for such responsibilities as are provided for in §§ 43-23-1 to 43-23-9, inclusive.

Source: SL 1988, ch 351.

43-23-10. Opening or injuring fence or gate as misdemeanor.

Any person who shall intentionally open, or leave open, let down, throw down, tear down, or prostrate any fence, gate, or bars, legally constructed, located, and lawfully maintained, which encloses a meadow, pasture, livestock range, or private other inclosure, is guilty of a Class 2 misdemeanor.

Source: SL 1919, ch 253; SDC 1939, § 19.9901; SL 1983, ch 15, § 9.