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Neighbor cut hole in fence.

Discussion in 'Easements & Right of Way Law' started by BRENNEN HENDERSON, Dec 26, 2019.

  1. BRENNEN HENDERSON

    BRENNEN HENDERSON Law Topic Starter New Member

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    Jurisdiction:
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    Recently I found a hole cut in the bottom of a shared fence. The area of the hole is in a seasonal creek that with heavy rain has a tendency to get maybe 2' twice a year, but the water level mostly sits at around 6." It does have the tendency to build up pine needles and debris from my side of the property but I try and clear them off whenever it gets thick to keep the water flowing. My new neighbor (8months) performed some work bracing the fence but without my knowledge cut a 4' wide by 18" tall "drain hole" in the bottom to allow debris to flow through.Mind you the fence posts were put at the property boundry in the 70s. Before either of us owned out properties. I put my fence on those posts in 2004 when I moved onto the property.

    When I confronted him about him repairing the hole he told me he fixed the fence, which he did not he only allowed an escape hole for my dog. which has been another issue. He has told my neighbors he is going to sue me for my dog barking at him. Which is only when he is near the property line. His property is 10 acres and mine is 2 acres. She has never bitten or nipped anyone and I feel she will never. But like most dogs do, she is merely protecting her property.

    I have since repaired the hole and he has since cut out my repair. Wondering what happens if my dog gets out and is picked up by haven humane who is responsible? Also what is my liability to this share fence that he insists on damaging without notice.
     
  2. adjusterjack

    adjusterjack Super Moderator

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    You are responsible for your dog. Period. It's up to you to figure out how to keep your dog under control, even if you have to put up a dog run within your yard while you are attending to your neighbor.

    As for the hole he keeps cutting after you close it up, you will need to go to court and get an injunction against him. If he violates the injunction he can be found in contempt and end up in jail if he continues to not comply.
     
  3. Zigner

    Zigner Well-Known Member

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    Are you sure that the law allows you to block the flow of a natural waterway with your fence? You'd better check it out before you push too hard on this matter.
     
    hrforme and mightymoose like this.
  4. mightymoose

    mightymoose Moderator

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    First, the posts installed 50 years ago may not be on the property line. Have a survey done to mark the actual property line and see if this is even on your property.
    Second, as above, check to see if this fence is in compliance with state laws and local ordinances regarding drainage and obstruction of waterways.

    If everything checks out, take the matter to court if you are unable to resolve things on your own.

    A possible solution to discuss with the neighbor- build a portion of fence that will rise with the water level that allows debris to pass underneath and keeps the dog in.
     
    BRENNEN HENDERSON likes this.
  5. BRENNEN HENDERSON

    BRENNEN HENDERSON Law Topic Starter New Member

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  6. BRENNEN HENDERSON

    BRENNEN HENDERSON Law Topic Starter New Member

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    So I guess that if the neighbors dog gets into my yard attacks and injures my dog he is not at fault for repeatedly making an access hole to my yard? Like if I was to walk up to your fence cut a hole in it and let your animal out I'm not responsible for the well being of the animal you are? Ok well thank you for your time, I appreciate the free advice.
     
  7. Zigner

    Zigner Well-Known Member

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    Way to read only a very small portion that was said, then stomp off in a huff.
     
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  8. BRENNEN HENDERSON

    BRENNEN HENDERSON Law Topic Starter New Member

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    I didnt mean to seem huffy. Just would like to know what I can do to keep this guy from cutting holes in my fence. But I got "put up a dog run" I realize I am responsible for my dog the fence is my security for my dog not getting out. But if I repair it he removes the repair. I dont see how he can do that and not be held responsible. What is going to stop the guy from cutting holes in the whole fence without telling me. That's what I wanna know.
     
  9. Zigner

    Zigner Well-Known Member

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    You were given additional options above.
     
  10. mightymoose

    mightymoose Moderator

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    No, the owner is responsible for his dog. Whether he is responsible for the fence or not is different. It is possible your fence is on his property. The existing posts when you installed the fence were not necessarily on the property line.
     
  11. army judge

    army judge Super Moderator

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    Others have provided you with several useful suggestions, as well as thoughts to ponder:






     
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  12. welkin

    welkin Active Member

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    I'm not clear on why a member of the forum thinks that you need a survey or makes the assumption that the fence may be on your neighbor's property. The fact is that in CA a boundary fence is one that is on the boundary or has been considered a boundary fence for the statutory period which is only 5 years. You used the fence posts that were in place for 50 years. Clearly a boundary fence.

    Under California law a boundary fence is owned by you and your neighbor as joint tenants and neither of you can repair, replace it, or alter that fence without the permission of the other or a court order.


    Law section.

    The fact that your neighbor alters the fence (for whatever reason) without your permission is a violation of the statute. You should talk to a local attorney about your options to stop the neighbor from altering the fence.

    In the alternative, your neighbor is creating a nuisance by cutting a hole in the fence that allows your dog to get off your property. The neighbor may also be committing a trespass. Both are also actionable in court.

    I disagree with the members who say that it your responsibility to control your dog when someone else creates the conditions without your permission.
     
    Last edited: Dec 29, 2019
  13. Zigner

    Zigner Well-Known Member

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    Because, regardless of whether it's a boundary fence or not, if it's not on the OP's property, then the OP doesn't own it.

    That's not what the law you cited says.

    That's not what the law says.

    How? According to you they share equally in the fence. How can one trespass upon their own property?

    Once the dog owner KNOWS of it, yes, it's the owner's responsibility.
     
  14. welkin

    welkin Active Member

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    The fence has been in that location for 50 years. If it has be recognized by OP and the neighbors as the boundary line, then it is a boundary fence owned equally by each property owner. You should research boundary by agreement or acquiescence in CA case law.

    Again, If the fence is on the boundary line, they both own it regardless of who built it. They both gain a benefit from it. But I will concede that what their predecessors did and agreed to makes a difference. It's a matter of facts.

    I posted in the alternative that if this is not a boundary fence and the neighbor cuts a hole in the fence, that would be a trespass and a private nuisance. Let's keep to the word I post and you not putting words in my mouth.

    .
    So by your theory of whatever law, the neighbor lets the dog out of a fenced area and it is the owners liability? You need to explain that.
     
  15. Zigner

    Zigner Well-Known Member

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    Show me, in the code section you cited, where it says that both parties own the fence, as opposed to both parties being responsible, under certain conditions.



    And, again, the code section you cited does not say that.


    The bolded/underlined portion above is what you did NOT post.

    .

    Now you're putting words in my mouth. Go back and read what I posted again.
     
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  16. mightymoose

    mightymoose Moderator

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    I'm confident this new neighbor would expect the property boundary to be what is stated in the deed. It's a good reason to have a survey done to check the accuracy of those old posts, since apparently the fence was installed on existing posts without verifying the property boundary.

    That seems to be the heart of the issue as the previous owner had no apparent issue with the fence.

    The facts are on the deeds.
     
  17. shadowbunny

    shadowbunny Member

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    Assuming you and the new neighbor are going to have to live next to each other for many years to come, have you considered a compromise that will 1) allow the debris to not build up and 2) keep your dog on your property? Perhaps a length of chain link (or other other water-permeable material) along the bottom of the fence would do the trick.
     
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