Fence laws have a fascinating history in Virginia

Published 5:17 pm Tuesday, March 9, 2021

“Don’t fence me in” is a familiar refrain, but most of us would never associate it with Virginia’s history. Nonetheless, it has been an ongoing debate for much of the state’s 400-year history, and it has affected every jurisdiction, including Isle of Wight.

When English colonists arrived here from England, they brought with them English Common Law, including rules governing fencing. In England, livestock — cattle, hogs and sheep — had to be fenced in to prevent them from damaging the property of neighbors.

Within a short time, however, that traditional view changed in Virginia and, later, throughout the South. There was abundant land here and livestock, primarily hogs and cattle, seemed to thrive by running loose. Crops, on the other hand, occupied small plots of land and could pretty easily be fenced.

Subscribe to our free email newsletter

Get the latest news sent to your inbox

The Virginia House of Burgesses as early as 1643 declared that every colonist must build a fence “about his cleared ground.” That meant livestock was free to roam, but crops had to be fenced.

Instead of a “fence in” rule for livestock, Virginia dramatically shifted emphasis to a “fence out” rule, in which crop owners had to protect what they grew from marauding cattle and hogs.

The system worked pretty well at first. Virginia’s Tidewater plants were mostly growing tobacco, and cattle and hogs didn’t like the taste. That meant only grain or garden crops were at risk.

As cropland acreage grew, the open range, or “fence out,” system became more problematic. Dr. Drew Swanson, a history professor at Wright State University in Dayton, Ohio, has documented the fight that began before the Civil War over whether to shift Virginia from a “fence out” to a “fence in” law.

In the mid-1800s, that was changing. By then, fields devoted to grain crops had grown quite large. Meanwhile, the oak, hickory and locust trees from which fence rails were cut had largely been harvested. Tidewater farmers were having to import fencing from far to the west to keep their crops enclosed.

Meanwhile, those farmers were beginning to learn how to intensify their production efforts through crop rotation and the application of marl (lime) to neutralize acidic soil. They wanted their crops protected.

It was the secessionist Virginia General Assembly of 1862 that took up the issue and gave counties the power to dispense with the existing “fence out” law. By doing so, a county would move the liability for crop damage from the crop owner to the livestock owner.

That action by the legislature placed the sensitive debate over fencing with local county courts, which set the rules for localities, and their successors, Boards of Supervisors.

Counties were thus allowed to enact a law which, in effect, required livestock to be fenced “in,” rather than continue to follow the state law requiring that livestock be “fenced out” of one’s cropland.

The Civil War curtailed the debate for some years because both northern and southern armies killed most of Virginia’s livestock to feed their soldiers. For years after the war, roaming livestock was not much of a problem.

Under the 1862 law, counties, it seems, could also have a mixed set of rules. Isle of Wight, according to anecdotal evidence from now-deceased early 20th century residents, had fences and gates separating the county from neighboring Nansemond and, internally, fencing that separated the county’s easternmost section (Carrollton) from the areas west. There was a gate at what is now the Benn’s Church intersection that had to be opened to enter the Carrollton area.

As amazing as it may seem, more than 60 Virginia counties were still living under “fence out” rules as recently as a couple of decades ago, when Virginia Tech undertook its survey.

Isle of Wight didn’t enact a “fence in” requirement for livestock until October 2015, adding it to a section to the county code making it “unlawful for the owner of any livestock, poultry or fowl to permit the same to run at large beyond the limits of the boundaries of the lot or tract of land which such animal is normally or regularly confined.”


John Edwards is publisher emeritus of The Smithfield Times. His email address is j.branchedwards@gmail.com.