Who is Responsible for Damage Caused by a Dead Tree

[TugHill]

There is this burly pine tree that was struck by lighting several years ago and died, since then branches have been falling off into our yard and the neighbors. Who's tree it is, is not clearly known, it was the neighbors tree when things were ok. When a branch from the tree fell onto his dog kennel and caused damage, the tree was called ours. The neighbor went out and took orange spray paint and made his own property line, making sure the tree was on our side of his man made line. My brother who is a forestry major and my father took tax maps and a compass and determined that some roots are ours and the majority of the tree is his. My brother is not a certified land surveyor. We thought we could clear things up and because we had the resources we hired a forestry friend and took 75% of the bad limbs off the tree, we left the base because its too big. The neighbor said his homeowners insurance wouldn't cover the claim so he handed us 2 bills a month apart. The first one for a few hundered dollars to fix his kennel (the bill was drawn up by his sons landscape business) a month later he handed us another bill for an additional $1,000. We refused to pay and got a lawyer. Our homeowner insurance policy wouldn't cover anything because it was not our kennel. The homeowners insurance called the tree and act of god. He is now taking us to small claims court, but we still don't know for sure who's tree it is.

Should we hire a surveyor ourselves and spend the money before small claims court? How would a judge look at it if a licensed surveyor hasn't been used? If its his tree we want him to be responsible for all the costs. Its already cost us alot of money. Thanks anyone!!

[Mr. Knowitall]

Consider having a survey done, but before you tell your neighbor the results find out if he is effectively making you a gift of land. Then discuss with your lawyer whether his attempts to redrawn the boundary line in your favor would create a legal claim on your part to the additional land under a legal doctrine such as accord and acquiescence to a boundary line. If so, you may wish to keep the land and pay for the tree removal.

Has anybody had an estimate performed for tree removal?