Fencing falls into two categories: access fencing and property fencing. The first type is state-owned control of access fencing, which is a design and construction responsibility. Access fencing is built along or immediately inside the control of access lines as needed to act as a physical barrier to the through lanes. It may also be built along the right of way line as a necessary safeguard against traffic hazards caused by the intrusion of people, animals, vehicles, machines, etc. from outside the right of way. If control of access fences are to be provided, the appraiser should be advised about location and type of fence. Control of access fences may, as a secondary function, afford the property owner the benefits of a property fence. In this case, the appraiser should be instructed to recognize the benefits of the fence to eliminate damages otherwise resulting from an unfenced condition. The appraiser should consider the fencing in the acquisition as part of the land value. When parcels are submitted for condemnation, complete details regarding fencing plans should be included for the information of the OAG.

The second type is privately owned property fencing placed immediately outside and along the right of way line to serve the abutting property needs and will be provided by the owner. If the appraisal report(s) includes information on the estimated cost to re-fence, and such amount is considered adequate, this amount would be the extent of reduced value due to an unfenced condition. TxDOT’s formal finding of value will be based upon this appraisal procedure; refer to .

A sketch showing fence and gate locations together with the specifications and a letter size reduction of the fence and gate plans showing the design to be used may also be submitted with the appraisal report. Cattle guards located on public roads will be handled as construction items as a part of the highway facility; however, any relocation or construction of new cattle guards at private entrances will be considered a part of the property fence as a right of way item. The cost will be borne by the property owner and should be included as a part of the fencing plans and estimate. It is to be understood that these instructions concerning private entrances relate only to the portion that is an incremental part of the right of way line fence. TxDOT

will not perform

other entrance work on the property remainder. In addition, policy is not changed as to the property owner’s and state’s responsibilities in replacing existing entrances or building new entrances from the right of way line to connect with the highway facility.

When appraising a rural type property that is fenced, the value of the fencing normally should be included in the value of the land. Comparable sales that have fencing should be used to support the value of the subject without special reference to or adjustment for fences unless they are not comparable. For record purposes, when fencing is included in the land value, it will be necessary for the reviewer to subtract the fencing from the land value. Normally, the amount subtracted and shown as fencing value on form will be salvage value. When the subtracted value for fencing is salvage value, the retention value should be a like amount.

Particular attention should be directed to the highest and best use of the property and whether such usage is dependent upon a fenced condition. If the appraisal reports establish a different highest and best use, such as subdivision or commercial use, for fenced land being used for farm or ranch purposes, the appraiser should make allowance for the contributory value of the fence considering the highest and best use. In a partial acquisition from a property of this nature, normally the appraisal of the remainder will indicate no damage due to an unfenced condition. If the highest and best use is an interim use requiring fences, the appraisal of the remainder may indicate damages due to unfenced conditions depending on the fact situation in each case.

By Minute Order Number 80872, the Commission authorized the release of procedures whereby offers of payments in negotiated settlements for highway right of way would include amounts sufficient for the cost of adequately re-fencing of owners’ property along the proposed right of way line. This actually affects only those properties for which the appraisal of the remainder indicates a reduction in value or for which at least some portion of the reduction in value due to an unfenced condition is offset by enhancements due to the remaining land after the acquisition. Therefore, the recommended value for a partial acquisition from property in this category should include a re-fencing adjustment in an amount to provide adequate re-fencing along the right of way. Fencing in kind will normally meet the requirement of being adequate re-fencing. It should be noted that cattle guards, ornate entrances, electric gates, etc. are not included in TxDOT’s re-fencing policies and are considered improvements.

In rural areas, a determination cannot be made before the appraisals are completed as to whether a particular acquisition will have enhancements offsetting damages due to an unfenced condition. If, after the review of the appraisals, it is determined that a re-fencing adjustment is appropriate, an entry for the adjustment should be made under “Special Damages” when entering appraisal values into

TxC

. The source of the re-fencing costs should be shown in the reviewing appraiser’s review comments. The purpose of this procedure is to encourage and expedite acquisition by agreement with owners and to avoid litigation. If it becomes necessary to acquire a parcel through eminent domain, the appraisal process must support value testimony.

Federal regulations regarding compensation may be found in .

This procedure of including an adjustment to compensate for re-fencing properties when damages due to an unfenced condition are offset by land enhancement is applicable to all right of way projects having state participation in the acquisition costs. It also applies to right of way acquired with federal assistance, even though any amount greater than the approved values will be non-participating for federal reimbursement.

Abutting owners often jointly own fences between their properties and the value of the fractional interest held by each must be determined and included in the appraised value of the parcels. The ownership of fences on property lines usually cannot be determined without personal contact with the owners involved. The appraiser and ROW PD personnel should make careful investigations to establish correct ownership so that the proper party or parties will be compensated for the interests involved. The state cannot acquire the partial interest held by one owner and allow retention of the interest held by the other. To avoid complications, it is preferred procedure to negotiate simultaneously for both parcels, handling both interests in the jointly owned improvement in the same manner, either through total acquisition by the state or through total retention by the owners. In the exceptional instance requiring acquisition of one parcel in advance of the other, it will be the district’s responsibility to avoid putting the state in the indefensible position of having acquired only a fractional interest in the improvement.