Possible Unauthorized Septic Drainfield on Our Property

[Jbernacchi]

My question involves an easement in the state of:Indiana

Hello,
We have had numerous problems with our neighbors, and I have even posted her about it before.They recently had what I thought was survey but later learned was only a mortgage location survey. We learned there property came over 25 ft past their fence into what appeared to be our backyard. This affects our back parcel of land only. In the front our property goes up to 8 ft away from the side of their house. Technically it should be 20 ft away according to town code. They had no variance to put it there, but did anyways. This house was only built 11 years ago. We offered to do a boundary line adjustment and give them 20 feet of the front, for 20 ft of their back. It was a good deal for them as they would have increased their acreage as the front parcel is much longer. They refused, the wife became racist toward us. We kind of just let it go, as we do have to live next to them.

Well about a month ago, they hired a bull dozer and came into our backyard and clear cut the 25 ft in the back to nothing but sand. I can upload a picture if it would help, is there a way to do this? If this was their property and the only issue, so be it, but now we know that it was not an actual survey we wonder if it was accurate. My first question is how accurate are these mortgage surveys?

The next problem is regarding their septic drain-field. My husband said that the neighbor husband told him once that he thought his drain field ran into our front property. We are looking to have a fence installed and wanted to make sure this was not true. I began by searching my title insurance and did not see any encroachments, easements or anything for a neighbors septic. I then called the county recorders office to see if there were any notations private easements and such. From there, I was transferred to the health department and told there was no record of a permit ever being pulled for a septic at that address. The health dept. told me that they must have installed it without a permit. Permits have been required for over 20 years, so I am not sure why they didn't get one..I am worried its because the only way to build that big house was to install part of the septic on my property. The former home-owner of our house is deceased, so I can not contact him for info.

We are scheduled to have the fence installed in 2 weeks. I fear that they will hit his pipes if it truly is in our yard. Would a surveyor be able to help us? If we put the fence in and hit his lines, and it is on our property with no record of permit or easement or anything of the like, could we still be liable for damage?

I have gotten great advice here on this forum before and I truly appreciate the volunteers of this forum. I wish I could "give back" here, but I am afraid I am not qualified to offer advice on this type of forum. I can however, help with anything to do with photography or pets/animals. I am a very active member of pet-related forum and also volunteer with a rescue. Just want to make sure you know how much I appreciate the advice. Thank you.

[jk]

no need to do anything with the pics.

a mortgage survey is accurate for what it is but since they do not stake any points on the ground, determining the exact points after the mortgage survey is difficult. Depending on what reference points you have available to be able to locate your lot lines, you may be able to get within a few inches but just the same, you may be a few feet off just as easily.

They are not going to be 25 feet off though (at least with the person performing the work keeping a job for long).

Did you ever have an actual survey or did the neighbor?

[Jbernacchi]

No, the neighbor never had an actual survey. He did have the mortgage location(?) survey. There is an existing Iron stake between our front two lots.
When they did the mortgage survey they put wooden markers out. My concern is not so much about the exact boundary line, but more about him having a septic and/or drain field on our property.
There is nothing on the deed or in the recorders office, or the Health Department noting any easements or anything about this septic. Because they illegally built it without as permit, there is no record of it at all that I myself can find.
I really want to know if I could somehow be liable for damage to his septic that is illegally on my property?
Thank you for your reply.

ETA: We are fencing 3 feet inside our property line with privacy fence, and then putting a separate boundary type fence right up to the line, or sending a certified letter that we know the 3 ft behind our house is our property, we are not giving it up and will continue to maintain it. The reason we do not want right up to property line is becasue of his dogs. He has 10 of them...6 are small min pins that yelp all day long and squeeze under his fence and come over here and poop. The other 4 are pitbull/mastiff mixes and live outside. They sometimes run loose into our yard though the collapsed section of his fence.

[jk]

I would suspect the iron stake to be an official surveyor's pin. I'm a bit surprised about the wooden stakes. I have never seen that done in my area.

I really want to know if I could somehow be liable for damage to his septic that is illegally on my property?

given the situation, I do not see you being liable for any damage a septic system that was illegally placed on your property. You don't know if there is a drain field on your property. Then, without an easement, it would be an illegal placement anyway.

Not quite understanding why you are setting the fence 3 feet off the property line but it is your decision. Personally, I tend to not give up any property that is mine. Although you are not actually given it up, you are not able to utilize it with your design.

to the dogs running loose. I cannot find a leash law for Indiana. Many local municipalities do have leash laws, You might call your local law enforcement to check into that.

[LandSurveyor]

I'm surprised that after all of the advice in the previous thread you mentioned:

http://www.expertlaw.com/forums/show...ht=#post509552

that there is still no boundary survey between you and your neighbor. All of your past troubles, current troubles, and probable future troubles with your neighbors are unresolvable without having your common boundary surveyed and marked on the ground by an Indiana registered surveyor. With all due respect to jk, when I find an uncapped iron pin, I just regard it as a piece of rebar or old pipe until I can resolve it's location in relation to the entire parcel or parcels. I have even found capped pins which were obviously "relocated" by someone who had a better idea of the boundary than the surveyor who originally placed it. As for mortgage surveys, I'll just be brief and state that they are a fraud on the public and cause more mischief than they avoid.

For anyone planning to install a fence, you have two choices:

With survey: cost of survey + cost of fence = fence.

Without survey: cost of fence+cost of survey+cost of removing fence+cost of reinstalling fence+possible attorney fees = fence.

You can do the math

[Jbernacchi]

A couple of weeks after posting that thread, my husband fell 25 ft from a tree and broke his neck. As I am sure you can imagine, our entire lives were disrupted and a survey was the last thing on our minds. After wearing a halo for months he had to undergo several surgeries to repair his shoulder and hand. Between taking care of him, our daughter was just entering kindergarten and working there was little energy (or money) left for anyhting else. Things are finally returning to a better normal.
I have scheduled a boundary survey with a licensed surveyor for next week. I also had a septic company come out and probe the entire front yard. He found nothing there and seems to recall when the neighbors house was built less then 10 years ago. The entire front yard was dug up on their property, not ours.Small town, and the septic guy has lived here for 20 +years. He even gave me the name of the company that did it.
Now I have a more pressing issue. The neighbors are out there right now fencing the property line with wooden posts. Originally they had set metal posts for chain link...Our plan was to put wood a few feet off the line and away from the chain link. We weren't terribly concerned becasue there is no maintenance required for chain link that he could not do from his property. Those were removed. Since they are fencing right up to the property line without talking to us, who will be responsible to maintain that side of the fence? Could I paint it myself since its on the line(which will be confirmed after the survey)? Sometimes I think it'd be easier to move. If only they would have worked with us...we could have shared the cost and put up a really nice fence. I dont understand why they are so spiteful.

[jk]

you cannot do anything to the fence unless authorized to do so unless it is considered a joint or common fence. If a common fence, plan on paying for 1/2 of it as well as being required to cover half of the maintenance. As long as they remain on their side of the boundary line plane, it is their fence. If it becomes necessary to do something to maintain the fence, they would have to have your permission to do anything, including simply hanging over the fence and painting it since they would be crossing the property line plane.

[Jbernacchi]

We are in the middle of our survey and our surveyor has found problems with it...The problems are actually in our favor by a few feet. The neighbor is out there again today(wearing his pistol) with the fence guys and they are installing the fence on our property. I went out there and politely told them that we are in the middle of a survey and asked if they could just wait until it was completed. The neighbor told me to shut the f*** up and told the fence to "keep on with it". We just watched them cut down three of our trees.
The next issues is the alley that we are in the process of vacating by attorney. The neighbors and us share a blog. The alley that is not in use, separates our front yards from our back yards. The surveyor told me that when it was vacated it would be divided between the both of us. The way he explained it being vacated was it would extend 8 feet from the edge of our first lot, then jag over the other 8 feet to the corner of our back lots. The neighbor is having the fence installed on an angle, so it would not be adhering to the proper division.
Is there anyhting I should be doing right now? Or do I have to wait until the survey is finished and then pursue the removal of the fence that is on our property? I really do not want problems with these people..I just want to live and let live. I should also note that the neighbor is very hostile.

[jk]

Is there anyhting I should be doing right now?

Yes, hiring a lawyer that can deal with this effectively. The wearing of the pistol is arguably illegal. Yes, a person has a right to wear a pistol while on his own property but any gesture or suggestion it is there to deal with you can be considered a threat.

IC 35-45-2-1
Intimidation
Sec. 1. (a) A person who communicates a threat to another person, with the intent:
(1) that the other person engage in conduct against the other person's will;
(2) that the other person be placed in fear of retaliation for a prior lawful act; or
(3) of causing:
(A) a dwelling, a building, or another structure; or
(B) a vehicle;
to be evacuated;
commits intimidation, a Class A misdemeanor.
(b) However, the offense is a:
(1) Class D felony if:
(A) the threat is to commit a forcible felony;
(B) the person to whom the threat is communicated:
(i) is a law enforcement officer;
(ii) is a judge or bailiff of any court;
(iii) is a witness (or the spouse or child of a witness) in any pending criminal proceeding against the person making the threat;
(iv) is an employee of a school corporation;
(v) is a community policing volunteer;
(vi) is an employee of a court;
(vii) is an employee of a probation department; or
(viii) is an employee of a community corrections program.
(C) the person has a prior unrelated conviction for an offense under this section concerning the same victim; or
(D) the threat is communicated using property, including electronic equipment or systems, of a school corporation or other governmental entity; and
(2) Class C felony if, while committing it, the person draws or uses a deadly weapon.
(c) "Threat" means an expression, by words or action, of an intention to:
(1) unlawfully injure the person threatened or another person, or damage property;
(2) unlawfully subject a person to physical confinement or restraint;
(3) commit a crime;
(4) unlawfully withhold official action, or cause such withholding;
(5) unlawfully withhold testimony or information with respect to another person's legal claim or defense, except for a reasonable claim for witness fees or expenses;
(6) expose the person threatened to hatred, contempt, disgrace, or ridicule;
(7) falsely harm the credit or business reputation of the person threatened; or
(8) cause the evacuation of a dwelling, a building, another structure, or a vehicle.

Or do I have to wait until the survey is finished and then pursue the removal of the fence that is on our property?

You, or your attorney, can file a suit with the courts and seek a temporary injunction to stop the progress of the fence until it can be fought out in court.

[johnfair]

Before installing septic tank, it is suggested to contact a certified and professional septic tank cleaning service provider near your location.
This will avoid such unauthorized problems..