Brown, J.
….
The statutory provisions set forth in Ind. Code §§ 32-26 relate to fences in Indiana and address issues such as the recording of agreements to erect and repair fences and fencemarks, the enclosure of land subject to flooding, and the cutting and trimming of live fences along public highways and between adjoining lands. Partition fences are governed primarily by Ind. Code §§ 32-26- 9 and certain sections of Ind. Code §§ 32-26-2.
….
We conclude that the sections above, considered together, demonstrate that the intent of the legislature was to require adjoining parcel owners to build and keep in repair a partition fence constructed upon the line dividing or separating their parcels as set forth in Ind. Code §§ 32-26-9-2 and -3, provided that one of the parcels is located outside, abuts, or is adjacent to the boundary of the corporate limit of a town or city, see Ind. Code § 32-26-9-2(a), and is agricultural land. See Ind. Code §§ 32-26-9-0.5, -6. Moreover, these sections do not limit the applicability of the construction and repair requirements of Ind. Code §§ 32- 26-9-2 or -3 based on the fact that one or both of the parcel owners may not make certain beneficial use of the partition fence.
….Thus, adjoining parcel owners can treat a fence not initially constructed on the true property line between their parcels as a partition fence, and in that circumstance the fence will be considered a partition fence for purposes of the maintenance and repair requirements and cost-sharing provisions of the partition fence statute…..
In sum, Ind. Code § 32-26-9-1 establishes that an existing fence, including one which may be not be located entirely on the shared boundary of adjoining parcels, is nonetheless subject to the maintenance and repair and cost-sharing provisions of Ind. Code §§ 32-26-9-2 and -3 if the fence has served as or has been treated or used as a partition fence by the adjoining parcel owners. There is no claim that this circumstance occurred here, and thus Ind. Code § 32-26-9-1 is not applicable in this case.
…..
Conclusion
For the foregoing reasons, we grant Belork’s petition for rehearing, vacate our opinion of November 16, 2015, reverse the trial court’s order, and remand for further proceedings.
Reversed and Remanded.
Altice, J., concurs. Riley, J., dissents with separate opinion.
Riley, Judge dissenting
I dissent from the majority’s opinion on rehearing, which vacates our opinion of November 16, 2015, and reverses the trial court’s order. I would deny Belork’s petition for rehearing and reaffirm our earlier opinion in every respect.
….
Curiously, although an amicus curiae is not a party and has traditionally no control over the proceedings, the majority appears to consider the amicus here as an equal partner, quoting from its brief in the parties’ section of the majority opinion.
I would deny the petition for rehearing as it merely exhausts precious judicial resources that could be expended elsewhere. There are sound reasons for requiring a party to present all known arguments or claims to an appellate court before its decision is rendered. Belork did just that in his appellate brief and there is no reason to revisit our analysis.