Category: Neighbors / Easements

If there isn’t a statute that covers your problem, don’t give up. There may be local laws (called ordinances), a restrictive neighborhood covenant, or judicial rulings (common law) that may help resolve your particular issue.  

One of the first places to start looking for local laws is on your county’s website. Many of West Virginia’s counties maintain a website using the following format: http://www.countywv.org. For example, if you are searching ordinances for Jefferson County, you would use the address http://www.jeffersoncountywv.org. If your county does not have a website, you can also access the information at the county law library or most public libraries, or by asking at your local representatives’ offices. 

If your neighborhood has an association governed by a particular set of rules, called Covenants, Conditions, & Restrictions, you may be able to get help from your homeowner’s association. Often these rules are much stricter than the local laws and may help with a neighbor problem. If you live in a community governed by a restrictive covenant and your neighbor is in violation of the covenant, you can complain to the homeowner’s association through the specified process (found in the covenant). Usually the association will then intervene and demand the neighbor correct the violation or be penalized.  

If there are no written rules that address your situation, you may look to the common law for help. Common law is law that has been created by judges over centuries through their court decisions. To find out whether a problem like yours has been ruled on, you will have to research the case law. This involves reading the actual cases that have interpreted related statutes or addressed the problem. For this type of research, you will probably have to begin at a law library.  

For more information, see: Jordan, Cora, Neighbor Law: Fences, Trees, Boundaries & Noise, Chapter 17 (4th ed. 2002); Warda, Mark, Neighbor vs. Neighbor, 9-21 (2nd ed. 1999).

Yes. In fact, your neighbor can be liable for three times the value of your plants, even if her actions were accidental. If your neighbor intended to enter your property to dig up the plants, she also committed a trespass. A trespass is entering another person’s property without permission. Trespasses include things such as walking through someone’s yard, throwing things onto someone’s property, or even putting an arm over a property line without permission. A person can be liable for trespass regardless of whether any damage was done to the property. If the trespass was done with malice or aggression, the victim may be able to recover punitive damages as well.  

For more information, see: W. Va. Code § 61-3-48a (2014); W. Va. Code § 61-3B-1(8) (2013); Jopling v. Bluefield Water Works & Improvement Co., 70 W. Va. 670, 74 S.E. 943 (1911); Chesser ex rel. Hadley v. Hathaway, 190 W. Va. 594, 439 S.E.2d 459 (1993); Bullman v. D & R Lumber Co., 195 W. Va. 129, 464 S.E.2d 771 (1995); 18 Michie’s Jurisprudence Trespass § 2, 25 (2009); Doyle, D., Smith, D., Ferrise, A., Real Property: Landowners’ Rights and Responsibilities in West Virginia, http://www.wvu.edu/~agexten/forglvst/Bulletins/rd726.pdf (last visited June 15, 2015).

West Virginia follows the “common-enemy” rule, where water is considered a common enemy of landowners and each landowner has the right to fight surface water as he chooses. However, the landowner must exercise this right reasonably. The landowner must act in good faith, with care to avoid injury, and with no purpose to infringe on another landowner’s rights. This means you may make reasonable efforts to drain water off of your property if you take care to avoid causing harm to your neighbor. However, you may not divert or dam the water unreasonably without regard to your neighbor’s property. Also, you may not dig ditches or other drainage systems that collect surface water and dump it onto someone else’s property or you may be held liable.  

For more information, see: Gillison v. Charleston, 16 W. Va. 282 (1880); Morris Assocs. v. Priddy, 181 W. Va. 588, 383 S.E.2d 770 (1989); 1A Michie’s Jurisprudence Adjoining Landowners § 10 (2007); Doyle, D., Smith, D., Ferrise, A., Real Property: Landowners’ Rights and Responsibilities in West Virginia, http://www.wvu.edu/~agexten/forglvst/Bulletins/rd726.pdf (last visited June 15, 2015).

It is a common law principle that a landowner has a duty to maintain lateral support to adjoining properties, which means your neighbor may not legally dig a hole that causes your land to collapse. However, the exception to this rule is that the neighbor is only responsible for providing enough support to the land in its natural condition and not for any of the buildings on it, unless you can prove that the land in its natural state was strong enough to support the structures. As long as your neighbor exercises reasonable care in supporting only the land itself, he will not be responsible for your damages. The limits of “reasonable care” here means the neighbor does not need to take extreme or burdensome precautions, but only a level of ordinary care and prudence. So, if your neighbor takes reasonable care to reinforce your land during the excavation and was not negligent, he will not be liable for your foundation slipping. 

For more information, see: Walker v. Strosnider, 67 W.Va. 39, 67 S.E. 1087 (1910); McCabe v. Parkersburg, 138 W.Va. 830, 79 S.E.2d 87 (1953); Beaver v. Hitchcock, 151 W.Va. 620, 153 S.E.2d 886 (1967); Noone v. Price, 171 W.Va. 185, 298 S.E.2d 218 (1982); 1A Michie’s Jurisprudence Adjoining Landowners §§ 5-9 (2007); Restatement (Second) of Torts § 821D (1979); Doyle, D., Smith, D., Ferrise, A., Real Property: Landowners’ Rights and Responsibilities in West Virginia, http://www.wvu.edu/~agexten/forglvst/Bulletins/rd726.pdf (last visited June 15, 2015).

Every property owner is entitled to the right of enjoyment and exclusive use of his or her property and may do with it what he or she pleases. However, concurrent with this right is the obligation to use the property with respect to the health, safety, and enjoyment of others’ use of their own properties. This means you must use reasonable, ordinary care to protect from injuring your neighbor’s exclusive use and enjoyment of his property. Something that causes a substantial and unreasonable interference with the private use and enjoyment of one’s land is called a private nuisance. Also, anything done willfully or maliciously to annoy may be considered a nuisance. Things such as unpleasant odors, smoke, debris, vibrations, irregular fences, dogs, and noises have all been found to be nuisances if they seriously interfered with another’s use of property from the viewpoint of an “ordinary and reasonable person.”  

If you can prove that your neighbor’s music makes living on and enjoying your property nearly impossible, you may be able to sue in court for money damages and/or an injunction. An injunction is basically a restraining order issued by the court against the particular nuisance. However, a faster, cheaper, and sometimes more effective alternative is to talk to the neighbor first. Perhaps he doesn’t realize how loud his music is or how much it annoys you. Just talking to him as a concerned neighbor may encourage him to act more considerately and make for a more positive neighbor relationship than taking him to court would.  

For more information, see: Medford v. Levy, 31 W. Va. 649 (1888); Harless v. Workman, 145 W. Va. 266, 114 S.E.2d 548 (1960); Hendricks v. Stalnaker, 181 W. Va. 31, 380 S.E.2d 198 (1989); Booker v. Foose, 216 W. Va. 727 (2005); 14A Michie’s Jurisprudence Nuisances §§ 3-13 (2007); Restatement (Second) of Torts § 821D (1979); Doyle, D., Smith, D., Ferrise, A., Real Property: Landowners’ Rights and Responsibilities in West Virginia, http://www.wvu.edu/~agexten/forglvst/Bulletins/rd726.pdf (last visited June 15, 2015); Jordan, Cora, Neighbor Law: Fences, Trees, Boundaries & Noise, Chapter 2 (4th ed. 2002); Warda, Mark, Neighbor vs. Neighbor, 21-23 (2nd ed. 1999).

Maybe. It depends whether the fence is on the actual boundary lines between the properties or whether the fence is constructed entirely on your neighbor’s land. It also depends on the way you and your neighbor intend to use your separate properties. Generally, a landowner has a right to build a fence on her own property at her own expense. Even if it is close to the property line, as long as it is not on the boundary this type of fence is not a true partition fence and you have no rights to it nor any duties to maintain your neighbor’s fence. If you and your neighbor desire a true partition fence to divide the properties, you can voluntarily agree to share the costs if you think the fence would also be to your benefit. This would ensure that you have a say in how it is constructed and maintained, and that it is not removed without your consent.  

West Virginia has statutes that govern partition fences in rural areas. Owners must share the cost of a partition fence if the land is used for “agricultural, horticultural, grazing, or livestock purposes.” This includes all construction, repair, and maintenance costs. If your neighbor builds a fence at her own cost because you were not using your land for the listed purposes at the time of the construction but you later decide to use your land in such a way, you are responsible to your neighbor for half of the cost of the partition fence. These laws can be overridden by a contractual agreement with your neighbor.  

Additionally, West Virginia has a special statute for hedge fences. A hedge fence may not extend more than 18 inches over the dividing line of a neighbor’s property or into a public road. A violation of this statute could result in a 10 day notice to correct the problem. If the hedge is not trimmed after the 10 days, it is considered a misdemeanor and the owner can be fined up to $1.00 every day until it is trimmed.  

For more information, see: W. Va. Code § 19-17-3 to -8 (2015); Cutright v. Sexton, 99 W. Va. 69 (1924); Doyle, D., Smith, D., Ferrise, A., Real Property: Landowners’ Rights and Responsibilities in West Virginia, 

http://www.wvu.edu/~agexten/forglvst/

You have a right to cut off branches or roots that stray into your property, but you may not harm the tree. You are responsible for the cost of trimming. There are some limitations to this right of self-help. You may only trim to the boundary line, you may not enter your neighbor’s yard without permission (this is considered a trespass), and you may not remove the tree or injure it in any way. If you don’t follow these guidelines, you may be liable for damages and/or trespass. If the job is a big one, it might be wise to hire a professional to make sure it is done correctly and to avoid harm.  

Because it can be costly to trim a tree, you may want to first try to resolve the problem with your neighbor. Perhaps the neighbor will split the cost with you, or will take care of it himself/herself to ensure the tree is not damaged. If the neighbor objects after you speak with him, it is a good idea to write a letter explaining the situation, your rights, and your intentions. You usually cannot sue because someone does not trim a tree. If it is a case of substantial damage or a serious impairment in using and enjoying your property, you may have some cause of action. 

Ownership of a tree is determined by the location of its trunk. If the trunk grows entirely on your neighbor’s property, it is his tree no matter how far the branches protrude or the leaves fill your yard. If the trunk grows on the boundary of the properties you and your neighbor are both owners and are jointly responsible for the tree. You may not remove a boundary tree without permission from the co-owner.  

For more information, see: Jordan, Cora, Neighbor Law: Fences, Trees, Boundaries & Noise, Chapters 3-6 (4th ed. 2002); Warda, Mark, Neighbor vs. Neighbor (2nd ed. 1999).

Utility companies often have a right to access a part of your property in order to maintain and repair lines and equipment as necessary. This right is called an easement, which is a legal right to use part of someone’s land for a specific purpose. A property owner is able to enjoy the use of this land, such as planting trees or shrubbery, as long as he does not obstruct the utility company’s access. If the vegetation does obstruct the access to the easement, the utility company generally has the right to trim the plants as necessary for the safety and operation of the lines and equipment. However, a utility company must do the trimming reasonably and not inflict unnecessary damage to the land. If the company damages your property beyond what is reasonable and necessary, it may be held liable for damages.  

For more information, see: Kell v. Appalachian Power Co., 170 W. Va. 14 (1982); Larew v. Monongahela Power Co., 199 W. Va. 690 (1997).