Colorado § 35-46-113 - Cost and repair - how recovered.

§ 35-46-113. Cost and repair - how recovered.

Partition fences between agricultural and grazing land shall be erected and also kept in repair at the joint cost of the owners of the respective adjoining tracts, except as otherwise agreed by such owners. If, after thirty days' written notice, served personally or by registered mail by either the owner or tenant of one tract upon the owner or tenant of the other tract, such other owner neglects or refuses to erect or repair one-half of the partition fence, the person giving notice may proceed to erect or repair the entire partition fence and collect by a civil action at law one-half the entire cost of erecting or repairing the partition fence from the other owner. A judgment obtained against the owner of land for the value of the owner's share of any such partition fence or the repair of the partition fence is a lien upon the owner's land to which the fence is appurtenant, and a special execution may issue and be levied upon the land to which the fence is appurtenant, as in the manner now prescribed for the levying of an execution under the foreclosure of a mortgage upon real property. The land may be sold under sheriff's sale for the purpose of satisfying the special execution in the same manner as is now provided for the foreclosure of mortgages on real property.

Source: L. 1885: p. 221, § 5. R.S. 08: § 2591. L. 17: p. 344, § 5. C.L. § 3157. CSA: C. 160, § 60. L. 53: p. 589, § 5. CRS 53: § 8-13-14. C.R.S. 1963: § 8-13-14. L. 2025: Entire section amended, (HB 25-1084), ch. 24, p. 133, § 132, effective August 6.

Cross references: For foreclosure of mortgages on real property, see articles 37 to 41 of title 38 and C.R.C.P. 120.

ANNOTATION

Either of owners of adjoining property may initiate building of fence if one or the other desires, and the procedure for the sharing of the cost is provided for by this section. Kelly v. Mullin, 159 Colo. 573, 413 P.2d 186 (1966).

Section alone expressly creates duty of joint maintenance of partition fences and confers the only statutory right to recover contribution therefor. Mosher v. Schumm, 114 Colo. 441, 166 P.2d 559 (1946).

Requires service of notice. An adjoining owner's share of the cost of a partition fence cannot be recovered from him where there is no proof of service of the required notice on him. Mosher v. Schumm, 114 Colo. 441, 166 P.2d 559 (1946).

Purpose of notice provision is to give the inactive party 30 days in which to elect whether he shall erect his share of the fence or contribute to the movant for its construction; also, the service of notice formally fixes the time of demand and of default if such follows. Mosher v. Schumm, 114 Colo. 441, 166 P.2d 559 (1946).