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Tort – Real Estate – Trespass – Boundary Dispute

Deborah Elkins//August 20, 2010

Tort – Real Estate – Trespass – Boundary Dispute

Deborah Elkins//August 20, 2010

Although defendant did not know he had trespassed on his neighbor’s land when he removed a fence and changed the location of a stream, those actions nevertheless showed a willful and wanton or reckless disregard for the rights of others, and a Shenandoah County Circuit Court says the fence can stay but defendant must relocate the stream and pay $7,500 in compensatory damages, with possible punitive damages to be determined.

Defendant Boyd has acknowledged his trespass throughout this litigation. The evidence shows the trespass was not intentional. Larry Himelright testified that Boyd was quite surprised when he learned of the true location of the boundary line. The employment of a surveyor to locate the boundary line for the purpose of erecting the new fence belies any wrongful intent.

The evidence shows Boyd acted with willful and wanton or reckless disregard for the rights of others. Removing what he thought was a division fence without even conversing with the neighboring landowner is not only inconsiderate and irresponsible but also quite high-handed and even arrogant. This is my view even though his underling motive of keeping his bull confined was a proper one. It is even yet more egregious to change the course of a stream that runs along that boundary line without consulting the neighbor.

I do find that Boyd changed the location of the stream. Here, defendant had both actual and constructive notice that the deed description for plaintiff Ricketts’ property, property that he himself had owned and conveyed to Ricketts’ predecessor in title, made reference to this very stream. He should have known better than to conduct himself in this way. In addition, being a resident of Fort Valley for two decades, he certainly should have understood the importance of water to any agricultural tract.

What is the remedy? The new fence can remain at its present location. Everyone agrees the fence is now located along the true boundary line, and Ricketts does not object to the location or the character of the fence. The court of the stream, however, must be altered so it flows across the Ricketts property as it has in the past or approximately so. While there has been a relatively small shift in the location of the stream, this shift has significant impact on the Ricketts property. I find that, previous to the Boyd trespass, the stream did run for a relatively short distance on the Ricketts property. It is difficult to determine the exact location, but I do not believe this is necessary in order to afford Ricketts relief. Boyd is the one who changed the status quo and he cannot now object to restoration of the status quo ante simply because Ricketts cannot prove with exactitude the previous course of the stream. Since Boyd changed the course of the stream, it simply makes sense to require him to restore the stream to its previous course as nearly practicable. Boyd will be responsible for any necessary permits for this work and to have other persons with particular expertise to assist him in doing this.

Ricketts also is entitled to damages of $7,500, not the $100,000 he requests. I deny damages for intentional infliction of emotional distress. I believe Ricketts is entitled to consideration of an award of punitive damages, to be made at a subsequent hearing.

Ricketts v. Boyd (Hupp, J.) No. CL 09-280, Aug. 13, 2010; Shenandoah County Cir.Ct.; Brian K. Brake, Kevin M. Rose for the parties. VLW 010-8-149, 6 pp.

VLW 010-8-149

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