Law of the Land
Farming and Ranching Legal Issues
How to Make a Family Farm FailMost farms in Idaho are family owned and operated. Here are some good ways to make that farm fail:
1. Believeing that the farm can financially support any and all family members who want to work on the farm. Farming is a business and expenses cannot exceed cash flows. You must consider whether the business can really support a family member.
2. Presuming that a conversation is a contract. Statements by Dad that "If you work hard, this will all be yours someday," or "It's yours when I die," are not enforceable. Get things written down with the help of an attorney.
3. Ignoring the in-laws, or off-farm families. People are members of the family immediately, but have to contribute to the business to be compensated by the business. Communicate clear expectations, in writing, to all family members.
4. Having businesslike meetings. A business is required by law to have at least one annual meeting. At that meeting the family should have an agenda and review financial statements, discuss goals, make evaluations, and review management decisions. Successful businesses meet often. Decisions should be made by voting based upon ownership of the company. People active in the business should be majority owners so that they can legally make decisions.
5. Forgetting common courtesy. We sometimes treat strangers better then we do family members. It is important to treat family members who work on the farm as respected and valued members of the workforce.
6. Having no estate plan, transfer plan, or buy/sell agreement. Parents do not owe their children a business, but do owe them good morals, an opportunity for an education, and legal plans for the estate. Failure to properly transfer management or ownership of a farm is a sure, painful, and often expensive path to farm failure.
Success or failure of the family farm ultimately depends on good legal planning and treating your farm like the business it is.
Brand Inspection of CattleSome cows have them. Some cows don't. Regardless of whether or not your cows are branded, the law requires brand inspections when cattle are transfered, sold, or slaughtered.
The Idaho State Brand Inspector is entrusted with inforcing laws relative to the identificaton and inspection of livestock with an emphasis on reducing the loss of livestock by theft. Idaho Code ? 25-116. In short, a brand inspector inspects cattle (and other livestock) when they are sold, transported, or slaughtered so as to reduce the liklihood of cattle thieves easily converting cattle to cash.
A person selling or transfering livestock has the primary responsibility to obtain a brand inspection. Idaho Code ? 25-1120(2). However, if the seller doesn't do it, the buyer is obligated by law to arrange for a brand inspection. Id. A fee of $2.71 per head is charged for a brand inspection, with a minimum fee of $20 charged when a brand inspector has to travel to do an inspection.
The livestock to be inspected should be gathered in a corral and be ready for inspection prior to the arrival of the inspector. Brand inspectors are not responsible for gathering livestock prior to inspection.
Idaho law also requires a brand inspection not more than ninety-six (96) hours prior to slaughtering an animal, whether for commercial purposes or for personal consumption. Idaho Code ? 25-1120(1).
Any person transporting or driving livestock outside the boundaries of Idaho are required to obtain a brand inspection. In addition, any person transporting livestock which they do not own within the state require a brand inspection, or a transportation permit. Idaho Code ? 25-1121. Failure to obtain the required brand inspection can result in the detention of your cattle.
Idaho citizens who are the owners of a brand also have the unique right to require livestock in transit, or which are about to be shipped, to be inspected to determine whether or not a brand inspection has been completed. Idaho Code ? 25-1126. In other words, a brand-owning rancher can inspect his neighbors herd to make sure that none of the rancher's cows are being mistakenly hauled off to the auction.
If you fail to obtain a brand inspection when required you may receive an infraction for a first offense, and a misdemenor citation for the second offense, punishable by a fine not to exceed $300, and/or six months in jail.
Before you peddle a few steers to your neighbor, make sure you call your local brand inspector and request an inspection. It's the law of the land.
Rights of Way for Canals and DitchesWater in Idaho and many of the western states is managed under the Prior Appropriation Doctrine. This doctrine follows the principle of "first in time in first in right. That is, a priority is established for water rights where water was first diverted and put to beneficial use.
"Diverting" water and delivering it to landowners is the business of irrigation dictricts. While many irrigation districts own canals and deliver water through those canals, myriads of lateral ditchs are privately owned by the landowners who use those ditches to deliver water from the canal to the property being irrigated.
Idaho law recognizes that a landowner may claim a right-of-way across the land of another for purposes of obtaining water for irrigation. Idaho Code ? 42-1102. The right-of-way is for purposes of building a canal, ditch or conduit to deliver water to the land being irrigated.
The right-of-way includes the right to enter upon the land across which the right-of-way extends for the purpose of "cleaning, maintaining and repairing the ditch, canal or conduit." Idaho Code ? 42-1102. The right-of-way also includes the right to deposit on the banks of the ditch or canal the debris and other matter necessarily required to be taken from the ditch or canal in order to clean or maintain it.
The existence of a visible ditch, canal or conduit is notice to the owner of the land that his or her neighbor has a right-of-way for purposes of irrigation. Idaho Code ? 42-1102.
The owner of a water right will typically negotiate with his neighbors as to the installation of a ditch or canal. However, in case a landowner refuses, Idaho law gives the person who desires a right-of-way the right to proceed in eminant domain so as to condemn adjoining property and obtain a right-of-way for purposes of a ditch, canal or conduit capable of delivering water.
In short, the owner of a water right has the ability under Idaho law to claim a right-of-way across his neighbor's property in order to build a ditch, canal or conduit so as to be able to deliver water to his property. Water is the lifeblood of Idaho agriculture. Canals, ditchs and conduits are the means whereby water is delivered and is protected by Idaho law.
EasementsMany Idaho farms and ranchs are surrouded by public lands, or by private land. Many times the only way to access a farm or ranch is by crossing public land, or your neighbor's land. What happens when your neighbors put up no trespassing signs or block access across their land? What are your options? Easements are usually the answer.
Disputes between landowners often involve easements, which are a "right of way." An easement is a limited interest in land that allows one to use another's property in a particular manner. For example, a farmer might have an easement that allows him to cross his neighbor's field to get to his property. Because access is often a cause of dispute between landowners, it is important to note the different ways that they can be formed.
Express Easement: Most easements are express easements which are created by written documents. However, even though the easement may be written, disputes may arise as circumstances change that the drafters of the easement did not anticipate. Having an attorney review or draft an express easement to include all of the current and possible future uses of an easment before purchasing or selling a property can help to alleviate future problems.
Prescriptive Easement: Prescriptive easements are granted when one uses another's property for a particular purpose for an extended period of time without the owner's permission. The requirements to obtain a prescriptive easement are as follows: one must be use the land without the owner's permission; one must use the land often enough that the owner would know of the use; the actions must be open, notorious and continuous under a claim of right, and; for a period twenty years. Prescriptive easements are often used to claim road rights of way.
Easement by Necessity: The common scenario in which an easement by necessity is granted is when a property is landlocked from public roads, and an easement is necessary so that the landowner can get access to his or her property. While the possible scenarios are endless, the main requirement is that an easment must be necessary. Inconvenience is not enough. Having to drive another 20 minutes to access your property through public roads is not a necessity. However, if the only way to get to your property is by catapulting yourself over your neighbor's land, you may have a good case for an easement by necessity.
Easement by Implication
An easement by implication requires a showing that the property needing an easement and the property over which an easment is claimed were both owned by the same person. In addition, there must be a continuous use of an access over the neigbhoring property and reasonable necessity of an easement.
The law recognizes a number of different easements and different methods for creating an easement. If you are having issues in accessing your property consult with your lawyer regarding an easement
Right to FarmIt is a common story in Idaho that has been repeated over and over. Developer buys farm ground outside of City. Developer builds subdivision and sells lots. City folk buy lot and build dream home in subdivision with beautiful views of the neighboring farmer's property.
Not long thereafter the city folk's home is full of smoke from farmer burning his ditch. City folk are annoyed and shut the window. Then city folk notice a significant increase in the number of flies around the house and the distinct odor of manure. City folk grumble. Lastly, city folk are awakened at 2:00 in the morning by the steady thudding and clanking of farmer's tractor baling hay. City folk put the pillow over their head and vow to call an attorney in the morning to rid themselves of the nuisance created by their neighbor, the farmer.
What the city folk don't know, and what Idaho law protects, is the right of the farmer to operate his farm without the threat of a nuisance lawsuit.
The Idaho legislature expanded the protections of Idaho's Right to Farm Act in 2011. The law states that "[n]o agricultural operation ... shall be or become a nuisance, private or public, by any changed conditions in or about the surrounding nonagricultural activities after it has been in operation for more than one (1) year, when the operation, facility or expansion was not a nuisance at the time it began, or was constructed." Idaho Code ? 22-4503.
Normally a landowner could sue a neighboring landowner if the neighbor's activities constituted a nuisance and interfered with the landowner's comfortable enjoyment of his or her property. Idaho Code ? 52-111. However, the Idaho legislature has recognized the importance of agriculture to the State of Idaho and has prohibited anyone from suing and making a claim for nuisance where a farmer is engaged in normal farming practices (no protection is given to the farmer who operates his farming activities in an improper or negligent fashion).
Activities that are protected by Idaho's right to farm bill include:
o plowing, tilling, and preparing soil;
o burning fields and ditches as permitted by law;
o applying pesticides, herbicides or other chemicals;
o planting, irrigating, and harvesting;
o breeding, hatching, raising, producing, feeding and keeping livestock;
o processing and packing ag products;
o noise, odors, dust fumes, light and other conditions associated with an ag operation;
o selling ag products at a roadside market.
A farmer or rancher sued for his activities can recover his attorney's fees and costs for having to defend himself in an action.
In summary, the Right to Farm Act is an important law that protects farmers and ranchers and their agricultural activities.
A crooked fenceIt was obvious as I looked down the fenceline that the fence was off. The surveyor had been out the day before and had used his instruments, accurate to within thousands of an inch, to survey the boundary between the two properties. The surveyor had placed his pin flags on the boundary described in the deeds to the adjoining properties. The fence was crooked and was off by a few feet here, a few feet there, and ten feet by the time it had traveled a quarter mile.
It was also obvious that the former owners of the adjoining properties had gone to great effort to fence the boundary. Old cedar posts had been carefully trimmed and placed in the ground. Barb wire had been stapled to the fence, but was now sagging and broken in many spots. Perhaps the boundary had been surveyed many years ago, but it was obvious that the old fence had been there for a long, long time.
The question now posed by the adjoining land owners, one of whom had just recently purchased his property, is where to put a new fence. If the old fence is to be replaced, should it go on the new surveyed boundary line, or should it go where the old fence was located? If the new fence is installed on the new surveyed boundary line, what to do about the ditches, the headgates, the trees, and even the well which will now be on the other side of the fence?
Idaho law recognizes that a fence that has been near the boundary of adjoining properties for a long period of time can become the property line. To establish property ownership under the doctrine of boundary by acquiescence, or "implied agreement," there must be a disputed boundary, uncertainty or ignorance of the true boundary line, and an agreement establishing a boundary that is recognized between the parties. The payment of property taxes by the party seeking possession of the disputed land is not required. However, it does require that the parties agree to a boundary. Such an agreement may be established by direct evidence, or it can be inferred from the conduct of the parties or their predecessors in interest, including long acquiescence in an existing fenceline, especially where adjoining landowners treated it as fixing the boundary for such length of time that neither ought to be allowed to deny the correctness of its location.
In short, if the old crooked fence has been treated as the boundary between adjoining landowners for a long period of time, it becomes the boundary. The new fence should be placed exactly where the old fence was located.
The Farm LeaseA leasehold is an estate in real property. The law recognizes a leasehold as a right to the use and occupancy of real property for an agreed length of time. Typically a leasehold is created by signing a written lease agreement. The lease agreement will usually include terms such as a legal description of the property being leased, the amount of rent due, the timing of the rent payments, the responsibilities and duties of the landlord and the tentant, and the term of the lease.
Farmers and ranchers typically will lease property for a term of at least one year. It may take a year to prepare soil, plant a crop, fertilize, irrigate, and then harvest the crop. For a crop like alfalfa it will be common for a farmer to lease land for a term of several years since the initial investment of buying alfalfa seed and planting alfalfa is high.
The law recognizes that farmers and ranchers often hold over and continue to farm following the expiration of a lease.
When a farmer or rancher has possession of agricultural land and has retained possession of the land for more than sixty (60) days after his lease term has expired, and where the landlord has failed to demand possession or give notice to quit the property, the tentant is entitled to hold the property under the terms of the original lease for another full year.
This law protects a farmer tenant who may have completed fall work on the property anticipating that a new lease will be signed for the next year. It also protects the farmer tenant whose lease has expired, but who plants a crop in the fall anticipating a harvest the following summer.
A wise landlord will make sure that all leases are in writing, and will give written notice to quit at the conclusion of a lease term. An astute tenant will understand his rights before doing fall work or fall planting.
- Lance J. Schuster is an agricultural lawyer at Beard St. Clair Gaffney. He can be reached at 523-5171 or [email protected]