Bourbon County Commissioners determined during their regular meeting on Friday that both the city of Fort Scott and Lane Cutler, who owns property that abuts city property near the south end of Lake Fort Scott, should share the cost of a fence between the properties.
After a fence viewing at Cutler's property on Monday, which attorneys for the city had objected to, commissioners made the following decision:
"Following the fence viewing on Sept. 24, 2012, the fence does need to be replaced and/or repaired, as it is insufficient, as viewed, and we order and assign that the two property owners should share the expenses equally."
The fence viewing decision will be sent to Cutler, the city of Fort Scott and the Register of Deeds. The commissioners' decision is final and any appeals must be made through civil court.
"It's out of our hands now," Commissioner Harold Coleman said.
Cutler said he was satisfied with the ruling.
"I'm in total agreement," Cutler said afterward. "The only fair way to do it is just to share the cost on the whole thing; whatever it takes, just get her done."
Cutler made the request for a division of the fence on Sept. 10, but said it has been an ongoing issue for about three years. Cutler said he recently had a bull suffer a gunshot wound in that area.
The fence, which will span roughly 6,000 feet, according to Commissioner Jingles Endicott, must be five-wire fence with posts every 16 feet, according to a resolution passed last year regarding exactly what a legal fence is.
"I think we've set the standards before. I think if we do anything, it has to be consistent," Coleman said before the vote.
The fence viewing is the first of several in that area concerning properties adjacent to city land near the lake. Three more viewings are scheduled for the near future, including the properties of Marti Tuchsherer and David Stewart.
Residents in the Fort Scott Lake area have come forward recently after the city decided to lease land to the Kansas Department of Wildlife and Parks for hunting. They have begun appearing before the panel requesting the county make the city responsible or share responsibility for fences to keep hunters off their privately owned land.
Under Kansas law, county officials have the right to view fences and determine who is responsible for them.
Attorneys for the city contend the usage of the properties is "in common," while county officials believe there is evidence to the contrary, enough at least to warrant a fence viewing.
County Attorney Terri Johnson describes the legal explanation of "in common" as sharing entitlement, use or enjoyment.