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Burden of Proof that neighbor cut roots
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<W Trest>
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I have six large trees that are dying (confirmed by an arborist) due to severed roots cut on the property line - neighbors side. My neighbor says he did not cut the roots and I can not prove he did? Do I need a witness or is the property owner responsible for his property? Any legal precedents?

I also have a police report that says the roots were deliverately cut.
 
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<Scott Cullen>
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Reply to post by W Trest, on November 27, 2002 at 08:28:09:

You have a number of issues here, some legal and some technical. The legal ones require a lawyer.

First in some states the adjoining landowner has the right, pretty much absolute, to cut roots of your tree that extend into his property. In other states that right is tempered by a duty not to damage your trees in the process. You need to know what kind of state (other than angry) you are in.

Assume you have a case. You must have good expert opinion that the cutting damaged the trees, that they are dying and that's what caused it. You probably need a consulting arborist familiar with forensic work. Go to the ASCA page here and follow the link to the ASCA site and search for someone in your area.

Then you need a value of the damage. An appraisal (technical opinion). But the law rears its head again. Different states allow different measurres of damages... might be timber or cordwood, might be replacement cost, might be reduction in real estate value. Which measure is a legal issue, If r.e, you need a qualified r.e. appraiser in your state.

The, even if the cutting caused the damage and the damage is recoverable you have to prove neighbor did it. Witnesses? Other evidence? Like the nick on his axe matches the cut pattern on the roots? Can you get access to the axe? If the cutting took place on his property is he liable no matter? Where did the cut roots or pieces go?

SC
 
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