Quick legal question regarding property rights

The basics - I am looking for information regarding property rights in a situation where a neighboring fence is poorly constructed and barbed wire from that fence is trailing off onto my property. I am curious if I then have the right to remove that barbed wire as a danger to people on my property.

But, I don’t really know the right words to use in a Google search to have good results so I was hoping some of the more legal minded among the SDMBers would be able to give me some good terms to plop into the search engine.

Thanks.

Have you talked to the neighbor? IANAL, but it would seem to me that if it is on your property you have the right to remove it, especially since it’s barbed wire. Isn’t this the same as a neighbor’s tree with an overhanging branch that’s in danger of punching a hole in your roof?

First, talk to the neighbor, and ask he can remove the barbed wire from the fence. Document that you’ve asked him to do this…give him a week. Then, if nothing happens, send a certified letter requesting him to remove the barbed wire from your property. I think if he again does nothing you can remove it yourself.

Again, if there are any attorneys out there and I have misstated something horribly, please jump in.

If it is in your property I am pretty sure you have the right to remove it like you can cut tree limbs that extend into your property.

IANALY, but I’m pretty sure that you’re obligated to mitigate all hazards on your property; if a visitor can be harmed, you need to remove it.

Question: is this something that can just be “tossed” back onto your neighbor’s property? Can you tack it back onto his fence? I realize that “fixing” his property is a bit much, and may draw his ire, but if you start dismantling his fence without talking to him, you may be liable for trespass, vandalism, or even theft.

MULLY, you have the right to remove anything from your property, dangerous or not. The fact that it’s dangerous just gives you more justification to do it.

I would talk to the neighbor before doing anything, to avoid a neighborhood war. If he’s reasonable, maybe he’ll fix the fence (and the problem). If not, I would remove the offending material and send him a letter saying that (a) his fencing materials are coming off in your yard and (b) you think they’re dangerous and © you don’t like them in your yard anyway so you removed them.

I

You are not obligated to mitigate hazards on your property – you can dig a lion pit there if you want – but you are obligated to warn licensees and invitees of hidden dangers. You also owe a higher duty of care to children and must actively protect them from the dangers on your property. That makes it a good idea to not have barbed wire lying around in any event.

OK, thanks all. That’s sort of what I figured but I couldn’t find the info I needed on my own (which I will blame on my own pathetic search terms.)

Slight nitpick…different duty of care for licensees, people who come to your house to visit, and invitees, people who you invite onto the property for the purpose of doing business,

Licensees you only have a duty to warn of known dangers (hey, look out for that loose step), but with a business invitee you have a duty to make a reasonable inspection and make safe.

IANALY, either, but the OP isn’t so much concerned about potential liability to guests for injuries caused by the barbed wire, but rather simply wants the barbed wire that trails off onto his property removed. That is, can a landowner compel a neighbor to remove part of a fence that overhangs his land.

The common law rule in this situation was cujus est solum, ejus est usque ad coelum et ad inferos; the idea being that land extends infinitely upwards and downwards. Hence, any kind of overhang from a structure on adjacent land would be an ouster of the landowner’s property rights, and thus constitutes a trespass. At common law, a landowner could then compel the removal of the encroaching structure; in this case, the fence. In more extreme cases, the common law courts would require entire houses to be torn down because they extended six inches across the property line.

As we might well imagine, the common law rule does not work well in the modern world. The idea that one’s airspace extends to infinity is incompatible with satellites, airplanes, etc. Nevertheless, the OP could still probably maintain an action for trespass, though this will vary depending on the jurisdiction.

It is the remedy for trespass with which the OP is concerned, however. Can the OP force his neighbor to remove his fence? At common law, that would be the normal remedy. Modern courts, however, sometimes exercise their equitable powers to shape an altogether different remedy: a forced judicial sale of the encroached-on property to the neighbor. Courts are not eager to contribute to economic waste.

From the description of the facts the OP provides, however, it does not sound like the courts would favor a judicial sale. Removing the encroaching parts of the barbed wire fence would not constitute economic waste – assuming, of course, that the OP is correct on where the property line is drawn. Moreover, a shoddily-constructed barbed wire fence can pose a danger to the OP and those on his land. The equities here seem to be in favor of requiring the removal of the offending portion of the fence.

An altogether different question is whether the OP can resort to self-help. That is, can the OP just remove the trailing barbed wire himself without asking permission from the neighbor? Unfortunately, I have no idea. Assuming that it could be done without damaging the fence, I don’t see why not. However, if one damages the fence, liability for the cost of repairs would not be out of the question. Moreover – not to impugn the OP’s skill at barbed-wire-fence-pruning – there’s also a distinct possibility that one could hurt oneself in the process. By having the neighbor remove the offending portion of the fence, at least the OP precludes the possibility of being injured in the process.

Ultimately, though, the goal is to have the neighbor remove the overhanging portion of the fence without resort to the legal system. Lawyers and courts antagonize; more gentle forms of persuasion may be in order. As the others have suggested, asking the neighbor to remove the portion of the fence is the best solution. The neighbor will probably be more willing to agree if the request is couched in terms of safety to pets and children on the OP’s land rather than in terms of property rights.

What is it that Robert Frost said about mending walls and good neighbors?

Best of luck.