Would like advice on legal problem with neighbor

[Cliffh]

They very well might be interested.  Can't know for sure until I contact them. 

Shouldn't be too hard to dig up their contact info.  Think I'll write them either a letter or email rather than calling, I prefer matters such as this be done in writing.

[Stetson]

I did some reading of the TX Water Code last night.  Chapter 7, Enforcement has a lot of "the Commission may" statements but nothing definite on how the Code is to be enforced.  Since they've already told me their policy is to not interfere in disputes between neighbors I believe that route is a dead end.

We're located about 10 miles north of Canton.

I have some friends in the Law Enforcement profession in and around Forney and Rockwall.  My house is off I-20 near Forney (Kaufman county).  I can ask around if you'd like.

[Cliffh]

If you don't mind, I'd appreciate the help.

We must drive past your place at least once a month, heading into Mesquite and/or Duncanville.  Whenever possible, I like to shop the Lowe's in Forney.

[vaskidmark]

I did some reading of the TX Water Code last night.  Chapter 7, Enforcement has a lot of "the Commission may" statements but nothing definite on how the Code is to be enforced.  Since they've already told me their policy is to not interfere in disputes between neighbors I believe that route is a dead end.

The word /may/ is enabling legislation which allows the TWC to do something - most boards/commissions/agencies/etc need legislative permission to a) exist and b) do whatever it is they were created to do.

File suit for a Writ of Mandamus for the TWC to a) send a watermaster/watermaster's deputy to the property to witness the alleged violation and b) to then issue the field citation.

  Please do not make me come over there and school you on what this is and how to file for one.  Just know it's the thing that makes the TWC get up off its collective backside and get involved in disputes between neighbors or pay contempt of court fines.

stay safe.

[BridgeRunner]

Meh.  If one is going to start filing suit in an attempt to force a gov't agency to make a determination--that may or may not be in conformance with one's own thoughts on the matter--and issue a citation and require someone to cease their continual trespass on one's property, one may as well bite the bullet and sue for the trespass, no?

Messing about with state and federal agencies that exist for a whole slew of reasons that do not include resolving boundary disputes between neighbors is playing with fire, or at least a whole lot of non-productive running in circles.

[Cliffh]

I had thought of filing trespass charges with the Sheriff.  If I'm not mistaken, that would result in criminal charges rather than this remaining a civil matter.  Neither my wife nor I want to go that route until all civil remedies have been exhausted.

[BridgeRunner]

The following is not advice on your situation.  I do not have any advice on what you should do.  However...

Trespass can be a criminal action or a civil action.  Trespass is an intentional tort, and one can generally sue for it (or its local statutory equivalent) in most general civil courts.  Trespass is also a crime, and one can ask law enforcement/the prosecutor to try someone for it.  If one files a complaint for trespass with the proper civil court, one is seeking damages for tortious actions by the trespasser. 

Civil trespass may be way easier to commit and to prove than criminal trespass, as criminal trespass statutes may require some degree of malice/ill-intent, or notice, or other requirements.  The common law of trespass (which may or may not be superseded by state statutes that may or may not mirror the common law) requires only the unauthorized entering or causing something to enter onto someone else's property through an intentional act.  An "intentional act" does not mean "intention to contravene someone else's rights or stated will" or anything like that.  It means having intentionally pulled the trigger of the gun that sent a bullet onto the property, or intentionally taking the step that crossed over the boundary. 

Common defenses against a suit for tortious (aka civil) trespass are adverse possession, acquiescence, their local statutory equivalents, and various types of easements.  Whether these apply or not depends on state law and the history of the properties. 

I am not a licensed Texas attorney, the above is a description of the general state of the common law as it relates to some aspects of property.  It may or may not apply to your situation, and I cannot make any determination or offer any advice on if or how it applies.  The above is not legal advice and should not be construed as such.  At all.  Ever.  Really.  Now if that's not a sufficient disclaimer, I don't know what is. 

[MrsSmith]

No one can see BR's arse now. It has been covered.

And this:

My better half had already put the kabosh on it, even after 20+ years she's still trying to civilize me.

If we didn't remain optimistic, we'd never make it 20-something years. 

[SteveS]

I recently sent the neighbor what basically amounted to a "cease & desist" letter which he ignored.

The only lawyer I talked to said it would cost at least $250 for a "cease & desist" letter from him and if we went to court it would require a $5,000 retainer and $250 per hour.  Way out of my ability to pay.

It might be worth talking to a few other lawyers.  Those fees aren't unreasonable, but there may be someone that is willing to do it for less. 

[charby]

What are the drainage laws in your state?

In Iowa you can't impede someone's drainage.

[Cliffh]

What are the drainage laws in your state?

Basically, one can construct a dam that retains less than 200 acre-feet of water without a permit; but the water must be contained on their property and can not impact any other persons' property.

ETA:

No one can see BR's arse now. It has been covered.

Thoroughly :)

[Lee]

Have you thought about running for County Commissioner...since yours won't do his job. Aren't you a constituent as well, and isn't a county road being impacted by the neighbor's dam? It sounds like you have made every attempt to be a nice guy about it...doesn't seem to be working though. May be time to step it up a notch. 

[Cliffh]

There is an election for County Commissioner coming up later this year.  There are a couple reasons I'd rather not even try for the office: it's an "Old Boy" network out here, and I really don't want to be a politician!  shudder!

I've been reading up on filing a Writ of Mandamus at http://www.ehow.com/how_5114293_file-petition-writ-mandate.html 

I've also been reading (too much) of the TX Water Code, and re-reading their response to my last letter.  In my letter I'd mentioned "rainwater runoff", in their response they stated that "rainwater runoff" isn't considered "waters of the state".  Section 11.021 of the Code states that "The water of the ordinary flow,.........and rainwater of every river, natural stream, canyon, ravine, depression, and watershed in the state is the property of the state."  Seems to me that means "rainwater runoff" would in fact be considered "waters of the state". 

I've drafted another letter to TCEQ quoting the above definition and requesting they at least send a representative out to review the situation.  Who knows, a "visit" from one of their rep's just might be enough to get the neighbor off his duff.

In the meantime, I'll still be working on some of the other suggestions; title insurance, lawyers, filings, etc.

[Lee]

Grow some rice?

[Tallpine]

How hard/expensive woud it be to just fill in that bend of the creek and shove the water all back over onto your neighbor's property 

[Cliffh]

Due to the lay of the land, it would be impossible to dam the creek at any location and divert the water onto his property.  Well, maybe not impossible, but it would require destroying most of the wooded area and building a levee along the entire fence line. 

Even then the water would still end up in his pond and backup onto my property, because I can't block off the county drainage ditch and the culvert pipe under the road.

We've thought of different water plants that might be planted in the flooded area.  Unfortunately, the area is covered in duck weed, which is very invasive and very difficult to control - it'd most likely kill off whatever we planted there.  And there would still be a portion of our property that's basically inaccessible.

[KD5NRH]

We've thought of different water plants that might be planted in the flooded area.  Unfortunately, the area is covered in duck weed, which is very invasive and very difficult to control - it'd most likely kill off whatever we planted there.  And there would still be a portion of our property that's basically inaccessible.

Pecans love annual flood plains.  Not sure how they'd do in what amounts to a vernal pool, though.

[Cliffh]

The pecan trees are going in the corner diagonal to the flooded area.  DW plans for 5 or 6 trees, at least for now, could end up being more.

[charby]

Pecans love annual flood plains.  Not sure how they'd do in what amounts to a vernal pool, though.

So do black and sandbar willows.

[Stand_watie]

Are you in Van Zandt or Kaufman county? Stetson and I have got together for shooting before, maybe you could host us and we could bring my 30 ml over and use that dam for a backstop? I don't really have a 30 ml, but from reading the news you'd think all my 30 cal's were 30 ml's...and a 30 ml would make short work of that dam.

[Cliffh]

In our part of Van Zandt Co. there's a lot of target shooting going on and nobody says a thing.  Although there just might be something said if the bangs got too big and others' property started getting damaged. 

Not that I haven't thought of using the overflow pipes for target practice....

[Regolith]

Are you in Van Zandt or Kaufman county? Stetson and I have got together for shooting before, maybe you could host us and we could bring my 30 ml over and use that dam for a backstop? I don't really have a 30 ml, but from reading the news you'd think all my 30 cal's were 30 ml's...and a 30 ml would make short work of that dam.

30 ml?

[Stand_watie]

30 ml?

It's an A10 cannon.

[zxcvbob]

It's an A10 cannon.

I thought it was about 1 fluid ounce. 

[Stand_watie]

I thought it was about 1 fluid ounce. 

Note to self. Either get your abbreviations right the first time, or learn to recognize snark better.

30 millimeter was what I meant.