General Provisions

CHAPTER 13. Fences

§ 1301. Lawful fences; height; barbed wire.

A good fence of wood, iron, wood and iron rods or wire, stone, or well set thorn, 41/2 feet high or 4 feet high and having a ditch within 2 feet of it, shall be deemed a lawful fence in New Castle and Kent Counties, and in Sussex County 4 feet shall be the height of lawful fences. Barbed wire shall not be used for division fences except by the mutual consent of the owners of the properties divided by such fences. No fence of any kind which is composed in whole or in part of, or to which there is or has been added, barbed wire, razor wire or any barbed wire type of fencing material shall be permitted in any residential district without prior approval of the county or municipal zoning board or its board of adjustment, unless the property being enclosed by such fence is being used for farming or educational purposes.

Code 1852, §  1000;  19 Del. Laws, c. 656;  Code 1915, §  3624;  Code 1935, §  4173;  25 Del. C. 1953, §  1301;  71 Del. Laws, c. 157, §  1

§ 1302. Liability for trespasses; fence-viewers to assess damages.

If any horse, cattle, goat, sheep or hog trespasses on any grounds enclosed with lawful fence, the owner of the animal so trespassing shall pay such damages as shall be awarded by the fence-viewers. Any person having unruly horses, goats, sheep, hogs or cattle, which break through lawful fences, shall, after notice thereof, be liable for double damages for any trespass committed by such animal, after such notice, to be awarded by the fence-viewers.

Code 1852, §  1001;  Code 1915, §  3625;  Code 1935, §  4174;  25 Del. C. 1953, §  1302; 

§ 1303. Fence-viewers; appointment; powers; quorum; compensation.

(a) The Superior Court shall annually appoint not more than 8 nor less than 5 persons in each hundred to be fence-viewers. The fence-viewers shall be the sole judges of the sufficiency of any fences, of the charges of making or repairing partition or other fences, and how borne, and of damages by animals trespassing.

(b) Any 3 of the fence-viewers may act, and the majority of those acting may decide any pertinent matter.

(c) The person whose name heads the list of fence-viewers in the respective hundreds shall act as chair, and in that person’s absence the second person so listed shall be chair, and in that second person’s absence the chair shall be the next in order of the names listed. The chair shall make a record of the terms of settlement in each dispute and shall keep such records available until all terms of settlement have been complied with. One month before the date of appointing fence-viewers for the ensuing year, the chair shall submit to the prothonotary of the respective counties the names of any present members who desire their names to be removed from the list of fence-viewers, stating the reasons therefor.

(d) The fence-viewers shall be allowed $8.00 per day and 7 cents per mile for travel to and from the point of dispute. The chair shall receive in addition to fees received by other members the further sum of $1.00 for each day as stated. The fees and mileage allowances shall be paid for each necessary trip made in connection with a dispute.

(e) The chair shall submit and certify to the Levy Court or County Council of the county in which services as fence-viewers have been performed a list of the names of those fence-viewers who have acted in each case specifying the amount of fees due to each fence-viewer. The Levy Court or County Council of the county in which such list is submitted, properly certified to as aforesaid, shall make payment of the amount of money shown to be due thereon to each fence-viewer out of any moneys in the county treasury not otherwise appropriated.

Code 1852, §§  1002-1004;  Code 1915, §  3626;  Code 1935, §  4175;  48 Del. Laws, c. 318, §  1;  25 Del. C. 1953, §  1303;  55 Del. Laws, c. 85, §  3770 Del. Laws, c. 186, §  1

§ 1304. Maintenance of partition fences; liability for enclosure of another’s lands.

(a) The respective occupants of lands enclosed by fences shall maintain partition fences between them in equal shares, as long as both parties continue to improve the same.

(b) Where any person encloses land adjoining another’s enclosed land, so that any part of the fence, or fence and ditch, or hedge and ditch, or wall, already made, becomes a partition fence, the fence-viewers shall determine what sum shall be paid by the one to the other, and the fence shall then be maintained by the parties equally.

Code 1852, §§  1005, 1006;  Code 1915, §  3627;  Code 1935, §  4176;  25 Del. C. 1953, §  1304; 

§ 1305. Judgment of fence-viewers; enforcement and penalty for noncompliance.

If the fence-viewers judge any fence to be insufficient, they shall give notice thereof to the person bound to maintain the fence. If 1 of several persons so bound, upon such notice and request, neglects, for 5 days, to make that 1 person’s own part of the fence good, or pay that 1 person’s share of the same or of any partition fence before made, any justice of the peace may, on complaint, direct the party aggrieved to repair the fence, and the aggrieved party shall be reimbursed double the cost which the person, so neglecting to repair the same, was bound to pay or contribute.

Code 1852, §  1007;  Code 1915, §  3628;  Code 1935, §  4177;  25 Del. C. 1953, §  1305;  70 Del. Laws, c. 186, §  1

§ 1306. Division ditches and fences; remedy for neglect to maintain; allowance to guardian or lessee; special marsh laws.

(a) The adjoining owners or possessors of embanked marshes or meadows shall be obliged to join in cutting division ditches at least 8 feet wide and 21/2 feet deep, and in making fences at least 2 feet high within 1 foot of the edge of the ditches, at their common cost. The division ditches shall be well cleansed at least once a year and the fences kept in good repair, and they shall be deemed lawful fences.

(b) If any owner or possessor refuses or neglects to join in making the ditch and fence, or to keep the ditch in good order and repair, the adjoining owner or possessor may make or cleanse and repair the same, and may recover the proportion of the cost thereof as the fence-viewers determine the party neglecting ought to pay.

(c) A guardian shall be allowed any sum so expended or paid for that guardian’s ward, and a lessee or tenant may deduct the same from the lessee’s or tenant’s rent, unless otherwise stipulated by the contract. This section shall not be construed to repeal any special law respecting the improvement of marsh or meadow whereby any other provision is made concerning dividing ditches or fences.

Code 1852, §§  1008-1010;  Code 1915, §  3629;  Code 1935, §  4178;  25 Del. C. 1953, §  1306;  70 Del. Laws, c. 186, §  184 Del. Laws, c. 42, § 92

§ 1307. Recovery of awards by fence-viewers.

All sums awarded by fence-viewers, or directed by them to be paid, may be recovered as other debts of like amount are recoverable.

Code 1852, §  1011;  Code 1915, §  3630;  Code 1935, §  4179;  25 Del. C. 1953, §  1307;