Legal Question in Construction Law in California

Re: Property line

Good question. Let's say X and Y are neighbors. X wants to build a fence along their common boundary. Y has no objection to X building the fence, but Y refuses to pay any of the cost. Can X force Y to pay half?

The answer MAY be found in Civil Code section 841, a law dating back to 1872, which says "coterminous owners are mutually bound equally to maintain....the fences between them, unless one of them chooses to let his land lie without fencing; in which case, if he afterwards incloses it, he must refund to the other a just proportion of the value, at that time, of any division fefce made by the latter."

This law worked fine when we were mostly an agrarian state, and you either raised crops or livestock, in which case completely enclosing your property with a fence was probably a darn good idea, and making neighbors share the cost was fair and simple to administer.

It's now 2007, and most of us live in urban or suburban settings (not me), and fences aren't used to keep the cows in, or to keep them out.

So, this law might mean that X can't require Y to come up with 1/2 the cost of the border fence between them if, for example, Y has fenced the rear and the other side of his property, but not along the street side. (The 1872 law applies only to an owner who completely, or more or less completely, encloses his parcel).

There aren't any, or at least aren't very many, modern cases interpreting the 1872 law, which IMHO is a good candidate for modernization. I would say, that in the absence of CC&Rs or local ordinances, X cannot make Y contribute to the cost of building or maintaining the X-Y boundary fence unless and until Y fences all the other borders of his property, including the boundary at the street.

I'll be interested to see if any other LawGuru attorney has another opinion.