Mark Twain is believed to have remarked, “History doesn’t repeat itself, but it does rhyme.” If you look for historical evidence that Twain actually coined this maxim, you won’t find it. But like the remark itself, the law often is more reflective of the echo that resonates down through time than the original utterance.
This is an article about the evolution of a very specific and, to be honest, obscure aspect of agricultural law: agricultural fence lines in adverse possession claims. But this obscure topic occasionally affects real people. Sometimes it affects generations of real people. And in this particular story, the historical echo starts with a man named Harry Kozak.
True to the spirit of Minnesota farmers, Harry Kozak was industrious and practical about his operation in Sherburne County. He took care of his land, he sought to improve it, and he thought about the future. In 1974, Harry expanded his farm by purchasing an eighty-acre tract. He immediately set to work on it with the help of his fourteen-year-old son, Rodney.
This was a time before the widespread use of track vehicles, before every (or any) farmer had a four-wheel-drive vehicle, and before GPS or satellite imagery. Hands were the most effective tool.
Harry tried to stay on his side of the property line and tried to put up the new fences as close to this property line as possible. But it was not always easy going. The Southwest 40 presented a particular challenge. There, Harry and young Rodney had to fight their way through thick willows and reed canary hay.
On the south fence line of the Southwest 40, Harry hit a snag. It was only when Harry finished the western fence (which runs north to south) that he realized what had happened. There was a significant amount of wire left on the western spool. The premeasured wire was made to span exactly one side of a forty-acre parcel, and leftovers could mean only one thing. The south fence angled away diagonally from the southern property line.
Just the same, the fence was meant to be installed near the property line, but its purpose was not to mark the property line. An angled fence keeps in sheep just as well as one that runs perfectly perpendicular. The surrounding landowners of the Southwest 40—Harry’s brother Kermit to the north, Harold Cater to the west, and Arthur “Bud” Cater to the south—knew that the fence lines did not line up exactly with the boundaries. Nothing was formally measured or surveyed, but this was the 1970s. They were neighbors, some of them relatives. No one gave it much thought.
The southern fence went through the toughest country on the whole parcel. Bud Cater was a big man, over 300 pounds, and he did not have reason, desire, or ability to go into the few acres of brush and swamplands between his property line and the Kozak south fence. He had about as little use for that kind of landscape as the sheep. So the brand new south fence stayed where it was.