(A) An owner may file an action in a court of common pleas of the county in which the owner resides if the owner of adjoining property neglects to build or maintain in good repair a partition fence or the portion of a partition fence that the owner is required to build or maintain.

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Terms Used In Ohio Code 971.16

  • Affidavit: A written statement of facts confirmed by the oath of the party making it, before a notary or officer having authority to administer oaths.
  • Applicable county recorder: means the county recorder of a county in which a partition fence is, was, or is not required to be constructed and maintained in good repair. See Ohio Code 971.01
  • Equitable: Pertaining to civil suits in "equity" rather than in "law." In English legal history, the courts of "law" could order the payment of damages and could afford no other remedy. See damages. A separate court of "equity" could order someone to do something or to cease to do something. See, e.g., injunction. In American jurisprudence, the federal courts have both legal and equitable power, but the distinction is still an important one. For example, a trial by jury is normally available in "law" cases but not in "equity" cases. Source: U.S. Courts
  • Evidence: Information presented in testimony or in documents that is used to persuade the fact finder (judge or jury) to decide the case for one side or the other.
  • Livestock: means horses, mules, asses, hogs, sheep, goats, cattle, and any other animal that is raised or maintained domestically for food, fiber, or hunting purposes. See Ohio Code 971.01
  • Owner: means both of the following:

    (1) The owner of land in fee simple, of estates for life, of easements, or of rights-of-way while used by the owners thereof as farm outlets;

    (2) Any of the following with regard to any land that it owns, leases, manages, or otherwise controls and that is adjacent to land used to graze livestock:

    (a) The department of natural resources;

    (b) A conservancy district organized under Chapter 6101. See Ohio Code 971.01

  • Partition fence: includes a fence that has been considered a division line between two such properties even though a subsequent land survey indicates that the fence is not located directly on the division line. See Ohio Code 971.01
  • Population: means that shown by the most recent regular federal census. See Ohio Code 1.59
  • Property: means real and personal property. See Ohio Code 1.59

(B) In an action filed under this section, a court shall consider all of the following when making an assignment of responsibility for building or maintaining in good repair a partition fence:

(1) Whether a partition fence currently exists even if it is in disrepair;

(2) Whether there is evidence that a partition fence existed in the past;

(3) Whether a written agreement between the owners has been filed with the applicable county recorder in accordance with section 971.04 of the Revised Code;

(4) Whether an affidavit has been filed with the applicable county recorder in accordance with section 971.05, 971.06, or 971.07 of the Revised Code;

(5) All of the following:

(a) The topography of the applicable property;

(b) The presence of streams, creeks, rivers, or other bodies of water;

(c) The presence of trees, vines, or other vegetation;

(d) The level of risk of trespassers on either property due to the population density surrounding the property or the recreational use of adjoining properties;

(e) The importance of marking division lines between the properties;

(f) The number and type of livestock owned by either owner that may be contained by the partition fence.

The court shall make an assignment in equitable shares.

(C) The court shall assign attorney’s fees and court costs in an equitable manner to the parties.

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