AgTalk Home
AgTalk Home
Search Forums | Classifieds | Skins | Language
You are logged in as a guest. ( logon | register )

What would you do?
View previous thread :: View next thread
   Forums List -> AgTalk CafeMessage format
 
WJKEIGER
Posted 10/3/2021 06:20 (#9249889 - in reply to #9248877)
Subject: RE: What would you do?


nw NC
Below dashed line is from this site: https://blogs.lawyers.com/attorney/construction-law/recovering-damag...


I gather from the article below, the following regarding what you describe in your post.... Your neighbor's excavation has removed lateral support of your property. Excavation of soil within 6 inches of fence post will likely cause lateral support failure of post supporting fence wire through freeze/thaw cycle. Also, excavation has increased likelihood of the soil left with vertical wall from excavation, to collapse from weather or weight of cattle grazing or machinery used in you farming your side of property line/fence causing you damage and loss of use of that area of your property. Plus, a hazard to safety has been created. Should injury occur to you, the party causing the hazard to be created will be liable due to negligent activity.

Start doing research on the subject. Possibly personnel from soil conservation service could assist you in directing you where to look.
Otherwise an attorney should be consulted.

Make some more pictures. Remain on your side. Use a video camera affixed to a pole long enough to hold the camera out across the property/fence line at places that better show the depth of the excavations. Affix camera so that it is aimed back toward you and can prove that you remained on your side. Do not set foot on his property, you would be trespassing. Still pictures can be "screen grabbed" from videos should you need still pictures.


-------------------------------------------

Recovering damages for harm to property due to a neighboring excavation
Blog Home

by Lucy Kennedy Walker

Posted on March 16, 2016 in Construction Law

Let’s say that your neighbor has excavated on their land,and you subsequently find some evidence of subsidence on your property: growing cracks in walls or foundation, for instance. Your neighbor’s excavation might have affected the “lateral support” for your land. As a Colorado landowner, you are entitled to have your land remain in its natural state,[1] and the soil in
neighboring property helps to support that state. You could pursue a claim against the next-door excavator based on one of two legal theories: strict liability or negligence.

Strict liability is available to an owner whose property was in a natural and unimproved condition. Even if improvements have been made, strict liability might apply if the weight of additions to the property cannot be found to have “materially increased the lateral pressure” on the land, thereby acting as the proximate cause of damage.[2] The rationale is that “a landowner cannot, by placing improvements on its land, increase its neighbor’s duty to support the land laterally.”[3] To claim strict liability for loss of lateral support, therefore, one must compare the support required by the land in its original, unaltered state with the support required by the same land with its improvements.

If the weight of improvements has materially contributed to the subsidence on the plaintiff’s property, any liability must be based on the theory of negligence.[4] For an excavator to be found liable for negligent withdrawal of lateral support, four elements must be present: (1) the withdrawal of lateral support; (2) the negligent character of the withdrawal; (3) resulting harm to land or to artificial additions thereon; and (4) absence of any action by the landowner that would undermine the claim.

No Colorado decisions have directly addressed what constitutes a negligent withdrawal under requirement 2, but, fortunately, both the Restatement and case law from other jurisdictions fills in the gaps. In order to avoid negligence, an excavator must take “reasonable precautions to minimize the risk of causing subsidence,” and provide notice to an adjacent landowner of “excavations which certainly will harm his structures.”[5] To minimize risk, an excavator must thoroughly investigate soil conditions and exercise reasonable care in all operations.[6] As to the notice requirement, a failure altogether to notify an adjoining landowner of excavations has been regularly held to constitute negligence[7], while what constitutes “adequate” notice depends on the facts of the case.[8]

Here’s an interesting differentiation between strict liability and negligence theories of lateral support removal: In a strict liability proceeding, “the kind of lateral support withdrawn is material, but the quality of the actor’s conduct is immaterial.” No matter how cautious the excavator, if the property suffers, he is strictly liable. Contrarily, in a proceeding based upon negligence, “the kind of lateral support withdrawn is immaterial, and the quality of the actor’s conduct is material.”[9] No matter the type of support required, the excavator has a duty to use reasonable care.

Edited by WJKEIGER 10/3/2021 09:12
Top of the page Bottom of the page


Jump to forum :
Search this forum
Printer friendly version
E-mail a link to this thread

(Delete cookies)