Tree Trouble
Recently a neighbor's tree fell on our fence. We moved it ourselves and fixed
the fence. It cost us $750. They have another large, dead tree on their
property—this one leaning in the direction of our barn. We're worried it will
fall during the next big storm. Is there some way to force them to remove this
tree before it tears up our barn?
Under the laws in most states you can't recover for an injury to person or
property until the actual injury has occurred. I believe your neighbor is liable
for the damage to your fence, and he would most likely be liable if another tree
falls on your barn.
Perhaps you could visit with the neighbor and try to work out a way to get the
tree removed before it falls. At the very least, send him a letter by certified
delivery. The letter should state that if the tree falls you will seek damages
for harm caused. This won't guarantee you success if the tree falls, but it will
help if you have to seek damages later. Other than that, all you can do is pray
for a wind blowing away from the barn.
—Scott Tidwell/Tidwell & Tidwell
I own about 80 acres in Minnesota. A lot of surface and tile water run across my
farm and into a ditch across the street. The ditch is on land owned by an
absentee landowner. It is so overgrown that water backs up onto my property now
and stands for long periods of time. Should I just clean out the ditch myself
and send the landowner a bill?
In Minnesota, as in many other states, the courts apply a reasonable-use test
for changes to the land that alter the natural flow and drainage of surface
water. Surface water results from rain, snow melt or percolation of underground
water. It is not a continuing and established creek, stream or river.
Property owners can increase or obstruct surface water flow only to the extent
such change is reasonably necessary for the use of their property; the change is
made with reasonable care so as to avoid unnecessary injury to another's
property; and the benefit outweighs the injury to the other's land.
In your case your neighbor has failed to manage the vegetation to prevent an
obstruction. So you may have a good case to force your neighbor to control the
vegetation to prevent flooding. Your neighbor is not receiving any benefit from
the vegetation, and it is reasonable to expect landowners to control
obstructions to natural drains.
That said, if the cost of controlling the vegetation is so high as to outweigh
the damage to your land, the outcome in court might not be certain. Since both
of you would benefit from removing the vegetation, I suggest you contact the
landowner and offer to perform the work for a portion of the cost.
—Robert P. Achenbach/Agricultural Law Digest
For 30 years my neighbor and I had an agreement on about 8 feet of unclaimed
land between our properties; we used it as a common drive. While I was out of
the country in Kuwait, my neighbor had a survey done and put up a fence, taking
in that 8 feet. He says he even went to the courthouse to change the deed,
showing that the 8 feet belong to him. Do I have any options? We only had a
verbal agreement.
First, get a survey done on the disputed property to determine who actually has
legal title to the land. If that survey reveals the property belongs to your
neighbor, you are probably out of luck. Where a landowner gives another
permission to use his property, he may, at any time, withdraw that permission.
If the survey reveals you are the legal owner, you may be forced to file a
"trespass to try title" lawsuit to get the title "quieted" in your name.
If in fact you are the true owner and your neighbor has fenced you out, there is
the risk he will establish title against you by adverse possession. To pursue
this you'll need to see an attorney in your state who is knowledgeable about
real estate law.
—C. Dan Campbell/Brooks & Campbell
Write to Law of the Land
2204 Lakeshore Dr., Suite 415
Birmingham, AL 35209
or
e-mail vmyers@progressivefarmer.com.