Note: The DearEsq free 'ask a lawyer' site is offered as a free informational service to the public and is not intended as legal advice. Laws vary from state-to-state, and in addition every situation is unique, and relevant facts may not be known. The answer to the question posed below may not apply to in your state or to your situation. For legal advice in your state and your situation you should consult with an attorney in your state who is familiar with the rules and laws in your state.
“30+ years ago, our grandfather bought 320+ acres of pasture ground. At that time, he worked with the water conservation office and put in terraces to have the water drain eventually to the ditches and creek. Soon after, he deeded 160 acres each to two of his children, one (tract 1) being our dad. Our 160 acres of ground has 5 terraces on it that continue down through the other 160 acres (tract 2). 20 years ago this ground was broke up to farmground and we have been farming it with corn/soybeans. 5 years ago, the other (tract 2) acreage was sold to our brother. Sad to say, relations are not good at all between the two brothers that each own a tract. The brother of tract #2 threatened to bulldoze over all the terraces on his side of the fence and dam up the water so that it could not drain down through on his side. We had the Water conservation office come out and looking it over, they declared very little to no damage on his side, but also gave us 3 different options of how to reterrace everything on our side. Minimum cost to us would be $20,000 plus loss of farmground due to building structures, etc. Just last week, in anger over another issue, he followed through on his threat and bulldozed the terraces and diked up the dirt 3-4′ on his side of the fence so it would retain all the water on our side.
So our question is this … what does the law say? We do not want to take a brother to court, but are at a loss as to what to do. Do we bend and just pay the expense and go on, till he gets all hot about another issue? We do this over and over with him!”Since you didn’t mention any specific restrictions in your grandfather’s deeds, I’m going to assume there aren’t any and just speak from general principles. However, it wouldn’t hurt to check the deeds to see if there’s anything useful in there.
Question: Depending on the exact physical configuration you’re talking about, your brother may be maintaining a nuisance by taking steps that ensure that water will flood your land. The tricky part is that he probably does not have an obligation to maintain the elaborate terracing that was in place, but if he is taking active steps to “dam up” the water onto your side, you might have a case.
Answer:
Unfortunately, even if you have a nuisance claim against him, all that gets you is the right to sue him, which you’ve said you don’t want to do. Outside of that, you need to be creative: Is there anyone in the family that the brother listens to? If so, perhaps you can use that person as a mediator.
