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Damage via Maintenance

Discussion in 'Easements & Right of Way Law' started by Paul51, Feb 17, 2020.

  1. Paul51

    Paul51 Law Topic Starter New Member

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    Jurisdiction:
    Idaho
    I live in a subdivision which has a small drainage canal that crosses the subdivision. There is an easement by the irrigation district that borders the ditch. In the ten years that the subdivision has been in existence, there has been no maintenance on the ditch. The irrigation district decided to clean out the ditch this winter using a large trackhoe. They cleaned out the ditch so the water would again flow freely, however, in the process of crossing the sidewalks and the paved streets, they broke all the sidewalks. They do not claim responsibility for any damage.

    Does the home owners association have to pay to have the broken sidewalks repaired or should the irrigation district be liable?
     
  2. army judge

    army judge Super Moderator

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    The answer to your question will probably be the basis for a lawsuit initiated by the HOA against the irrigation district.

    However, prevailing against the sovereign, in this case the local governmental body (the irrigation district) won't be easy.

    Your HOA MIGHT have insurance to protect homeowners and themselves against such losses.

    You might wish to inquire of the HOA board to learn more.

    There's very little useful information that uninformed strangers can offer you, other than take all of your concerns to your HOA board and/or president.
     
  3. zddoodah

    zddoodah Well-Known Member

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    Phrasing this question in the disjunctive doesn't make much sense. The HOA will have to pay for the repairs unless the district refuses to do so. You didn't tell us anything about communications between the HOA and the district, so I can't say anything beyond that. As for whether the district "should . . . be liable," your post is certainly written in a way that suggests the answer is yes.
     
  4. Paul51

    Paul51 Law Topic Starter New Member

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    Your reply sounds like a double negative so I too am confused. I am a member of the HOA board but the HOA has a management team that is supposed to do all the legwork. They supposedly contacted the irrigation district and the irrigaton district told them to go pound sand. " The developer should have made accomodations for maintenance equipment by putting in asphalt or gravel instead of a concrete sidewalk."

    The problem could have been easily eliminated by taking a commonly accepted practice of using old rubber car tires as protection when crossing a sidewalk or other surfaces prone to damage by the metal treads of the trackhoe.

    It's my contention that, if proper precautions were not exercised in the execution of the maintenance, then they should fix what they damaged.

    What say you?
     
  5. PayrollHRGuy

    PayrollHRGuy Well-Known Member

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    I have not read all of this decision. You should before you rely on it.

    From https://isc.idaho.gov/opinions/43741.pdf

    Idaho law requires the owner of the dominant estate to maintain the easement so as to not create an additional burden on the servient estate. Gibbens v. Weisshaupt, 98 Idaho 633, 640, 570 P.2d 870, 877 (1977). “The duty of maintaining the easement rests with the easement owner (i.e., dominant estate), even when the servient landowner uses the easement.” Walker v. Boozer, 140 Idaho 451, 456, 95 P.3d 69, 74 (2004). “That duty requires the easement owner maintain, repair, and protect the easement so as not to create an additional burden on the servient estate or an interference that would damage the land, such as flooding of the servient estate.” Id. “This duty to maintain does not mean that the easement owner is required to maintain and repair the easement for the benefit of the servient estate.” Id. “It follows then, that absent a showing that the easement owners’ maintenance of the easement created an additional burden or interference with the servient estate, the servient estate cannot dictate the standard by which the easement should be maintained.” Id.
     
    Paul51 likes this.
  6. zddoodah

    zddoodah Well-Known Member

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    Then the answer to your question is that the HOA will have to pay to have the broken sidewalks repaired and sue the district to obtain reimbursement. Only an attorney admitted to practice in Idaho can express an intelligent opinion about the likelihood of the district having liability.
     
    Red Kayak likes this.
  7. adjusterjack

    adjusterjack Super Moderator

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    You could be right and the district personnel could be negligent. But "should" doesn't mean "will."

    If the HOA want the sidewalk fixed, the HOA will have to pay for the repairs and seek reimbursement through the courts.
     

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