Neighbor's Retaining Wall Support on Our Lot

[Pacsnow]

My question involves real estate located in the State of: Oregon

Hello- my husband and I purchased a lot in a subdivision that has been built out for years (our lot has been vacant for a long time). The owner to one side of our lot has her property graded such that her house sits above our current lot. She's owned the lot since 2005. She build a sidewalk along the very edge of her lot, and a chain link fence. Supporting the side of her lot (and her fence) is a very large "retaining wall" which is really a huge spillover of stones. It is not a built structure, but more like a slope of stones. Our survey shows that our lot lines run right up to her chainlink fence, but that the big spillage of stones (approximately 15 feet) encroaches.

We have a plan to build, and an architect's plans. The site engineer is doing the work now to determine what we need to do to fill/escavate our lot in order to build the house. It looks like we will have to bring a lot of fill in and that we will cover the slope of rocks. The neighbor has complained about us doing harm to ""her retaining wall." I'm now fearful of an adverse possession claim, though i know that under Oregon law she would have to show that she constructed the "retaining wall" with a claim of right- i.e. that she rightfully thought she owned the land upon which she built it. I am pretty darned sure from her statements that she does not think she owns the land, so I think she would have a hard time proving an AP claim.

However, do we owe some right to maintain a rock gradient that was constructed on our land to hold up her land/fence? Help! I do appreciate your help.

[budwad]

My question involves real estate located in the State of: Oregon

Hello- my husband and I purchased a lot in a subdivision that has been built out for years (our lot has been vacant for a long time). The owner to one side of our lot has her property graded such that her house sits above our current lot. She's owned the lot since 2005. She build a sidewalk along the very edge of her lot, and a chain link fence. Supporting the side of her lot (and her fence) is a very large "retaining wall" which is really a huge spillover of stones. It is not a built structure, but more like a slope of stones. Our survey shows that our lot lines run right up to her chainlink fence, but that the big spillage of stones (approximately 15 feet) encroaches.

We have a plan to build, and an architect's plans. The site engineer is doing the work now to determine what we need to do to fill/escavate our lot in order to build the house. It looks like we will have to bring a lot of fill in and that we will cover the slope of rocks. The neighbor has complained about us doing harm to ""her retaining wall." I'm now fearful of an adverse possession claim, though i know that under Oregon law she would have to show that she constructed the "retaining wall" with a claim of right- i.e. that she rightfully thought she owned the land upon which she built it. I am pretty darned sure from her statements that she does not think she owns the land, so I think she would have a hard time proving an AP claim.

However, do we owe some right to maintain a rock gradient that was constructed on our land to hold up her land/fence? Help! I do appreciate your help.

Assuming that the neighbor graded her property in the year she purchased it, she may have a claim for AP. The statute to recover property is 10 years in Oregon. But I don't see what the problem is.

Your neighbor is not claiming that the 15 foot encroachment (by the rocks) is her land. She appears to be concerned that you may do something to remove the lateral support of her retaining wall. As bolded above in your post, you say you will need to fill your property and cover the slope. Your property is the downhill property. If you were to remove the lateral support of the uphill property that would be a problem.

The Oregon Supreme Court (back in 1901) said this about lateral support:

In Mosier v. Oregon Navigation Co., 39 Or. 256, 64 P. 453 (1901), the Supreme Court explained the right of "lateral support":

"It is familiar law that an owner of land is entitled to have it remain in the state in which it was placed by nature, supported and protected by adjoining soil. This right of lateral support, as it is called, is a right of property annexed to the land, to which the owner is as much entitled as to the land itself. If an adjoining proprietor, in excavating on his own land, removes such support, to the injury of his neighbor's soil, he is liable in an action therefor, without proof of negligence." Id. at 258, 64 P. 453.

The right to lateral support is an interest in land, the loss of which entitles the owner to compensation:

You are filling not removing. You are increasing the lateral support of your neighbor's land.

I would just proceed with your plans. You know where your property line is and the neighbor is not contesting it.

I doubt your neighbor could win a quiet title suit based on AP in this situation. I don't think grading her property and bulldozing the rocks over the property line would meet the requirements of using your property.

[Pacsnow]

Hi, I really appreciate the response. The site engineer is preparing the report, so we’ll k ow in a week or two if we have to fill, dig, etc. at that point we will be in a better position to ascertain what our v. Her responsibility may be.

I did read the opinion in Mosier, but thought maybe the result would be different if a landowner is removing naturally existing lateral support (ie the dirt of a hill side) versus removing a bunch or rocks that have been artificially added to support fill of the neighbors lot above grade. I can’t see a court ruling that a neighbor gets to use whatever construction method they’d like to use to support their fill at the detriment of an adjacent landowners property rights. That makes zero sense.

If we have to *fill* then the problem goes away because, as you noted, we are reinforcing the lateral support. However, if we have to dig to place the foundation in a manner that affects the support of artificially placed rocks, I’m going to require the neighbor to pay the incremental cost, or give her a few months to build support on her side of the lot line.

Again, thanks for your reply. Do you practice in Oregon? If I need a land use lawyer .....

[jk]

There are only a couple lawyers that post on this site. Budwad (as well as myself) is not an attorney.

regarding your situation.

i suspect it will be determined that your purchase of the lot will be seen as an as is proposition. Whether the support of the neighboring lot is natural or artificial, I believe it will be ruled since the prior owner allowed the neighbor to install the supporting material, it will now be considered the natural lay of the land regarding how you must deal with this. That would mean if you need to excavate the area and that endangers the neighbors lot, you will be required to build a supporting structure, on your own land, to prevent the collapse of the neighboring lot.

additionally, what you are describing doesn’t appear to be actual support. It sounds more like erosion prevention. Stones alone will not support anything. Especially if the stones are only erosion protection, it sets up a situation where you would’ve been required to build a retaining wall anyway should you need to excavate.

[budwad]

Again, thanks for your reply. Do you practice in Oregon? If I need a land use lawyer .....

There are only a couple lawyers that post on this site. Budwad (as well as myself) is not an attorney.

Should I thank you for answering the question? I don't think so. I am capable of answer a question asked directly to me. But I understand your motive.

It doesn't matter in this post since I post on the law and not on my opinion. So OP got the education on what the law says.

Please don't do it again. If you have something to say about the law then say it. But don't answer questions that are posed to me.

[jk]

Should I thank you for answering the question? I don't think so. I am capable of answer a question asked directly to me. But I understand your motive.

It doesn't matter in this post since I post on the law and not on my opinion. So OP got the education on what the law says.

Please don't do it again. If you have something to say about the law then say it. But don't answer questions that are posed to me.

normally you’re blocked but I figured this was a smart assed response to me.

guess what bud: screw yourself. I’ll post as I please. I’ll answer any question i wish to but guess what, I didn’t answer a question posed to you. I answered a question not asked at all. How about you not showing yourself to be the ass you always have by attacking others? Ive read some posts directed to you lately. It would appear you start arguments with pretty much everybody.


I hadn’t bothered to read your first response previously but having gone back and reading it, I see you didn’t even address the facts of the case properly. You totally ignored the ops statement that they may have to fill or excavate the area. You also failed to address the issue of prescriptive easements, which appearS to be a valid claim by the neighbor. That means that the answer to the ops specific question at the end of their post is: maybe.


pacsnow: if the stone actually provides some benefit to the upland neighbor (as you describe it it really doesn’t sound as if it is actually support), based on a claim of prescriptive easement, it’s possible the stone may be a permanent condition. If the stone merely prevents erosion, since you would be liable if your land eroded and caused a loss of support for the upland neighbor, it would be to your benefit it remain but I believe as long as you provided protection from erosion by some means, you could remove the stone. As well, you couldn’t remove natural support for the upland neighbor. Unless they added dirt and you could somehow prove they added dirt, you would have to continue to provide support for the upland property anyway. If you could prove they constructed a means of support on your property, you might argue they and not you are obligated to act to support the upland property. That would mean they would be required to build their own supporting structure on their own property. Of course, based on the law regarding prescriptive easement, I think you quite possibly could lose if the neighbor took this to court on that basis.

In Motes v. PacifiCorp, 230 Or App 701, 706-07 (2009), the Oregon Court of Appeals court summarized the general law of prescriptive easements as follows:

“Easements by prescription are not favored in the law, Wood v. Woodcock, 276 Or 49, 56, 554 P2d 151 (1976), and, consequently, must be shown by clear and convincing evidence. _ Petersen v. Crook County, 172 Or App 44, 49, 7 P3d 563 (2001). "Clear and convincing" evidence is evidence that establishes that the existence of the facts asserted is highly probable. _ Shields v. Villareal, 177 Or App 687, 694, 33 P3d 1032 (2001).
“A party seeking to establish a prescriptive easement must show open or notorious use of the property that is adverse to the rights of the owner for a continuous and uninterrupted period of 10 years. _ Martin v. G. B. Enterprises, LLC, 195 Or App 592, 595-96, 98 P3d 1168 (2004). The "continuous use" requirement is satisfied by evidence that the alleged use was consistent with the needs of the user during the prescriptive period. _Kondor v. Prose, 50 Or App 55, 59, 622 P2d 741 (1981). The "open or notorious use" requirement serves the function of giving the owner of the servient estate ample notice to protect itself against the establishment of prescriptive rights, Restatement (Third) of Property § 2.17 comment h (2000), and is satisfied by evidence that the use was such that the owner had a reasonable opportunity to learn of its existence and nature. _ Baylink v. Rees, 159 Or App 310, 317, 977 P2d 1180 (1999) (citing _Thompson v. Schuh, 286 Or 201, 211, 593 P2d 1138 (1979)). Open use for the prescriptive period gives rise to a rebuttable presumption of adverseness. Feldman et ux. v. Knapp et ux., 196 Or 453, 472-73, 250 P2d 92 (1952)." (Emphasis added).

[budwad]

normally you’re blocked but I figured this was a smart assed response to me.

Every post by anyone who questions your law logic is a smart assed response according to you. Do me a favor and keep me blocked. I'm not posting for your benefit. I post for the benefit of the OP so I really don't care if you block me. Apparently you don't have me blocked.

guess what bud: screw yourself. I’ll post as I please. I’ll answer any question i wish to but guess what, I didn’t answer a question posed to you. I answered a question not asked at all. How about you not showing yourself to be the ass you always have by attacking others? Ive read some posts directed to you lately. It would appear you start arguments with pretty much everybody.

OP asked me (not you):

Again, thanks for your reply. Do you practice in Oregon? If I need a land use lawyer .....

You answered:

Budwad (as well as myself) is not an attorney

You are the one that is name calling (ass, douche ) and I don't attack anyone personally. I argue the law. If that ruffles your feathers because I disagree with you, you might want to get out of the kitchen. And please post a link to what you say is where I started an argument with anyone. Disagreement is not an argument. It is a debate of ideas. Something you can't seem to win on the law. So you cry ATTACK.

In my last post I politely asked you to please not answer questions posed to me directly. And you call me an ass.

And then you went on to come up with some extraneous theory that the rocks were there for drainage and that there was a prior owner of OP's property (less the developer). Nothing in the post indicates that OP is not the original purchaser of the lot.

my husband and I purchased a lot in a subdivision that has been built out for years (our lot has been vacant for a long time).

I hadn’t bothered to read your first response previously but having gone back and reading it, I see you didn’t even address the facts of the case properly. You totally ignored the ops statement that they may have to fill or excavate the area. You also failed to address the issue of prescriptive easements, which appearS to be a valid claim by the neighbor. That means that the answer to the ops specific question at the end of their post is: maybe.

You misstate what OP posted:

It looks like we will have to bring a lot of fill in and that we will cover the slope of rocks.

So you added

or excavate the area

OP didn't say that. You did to make an argument of your own.

The rest of your post makes no sense at all. If the neighbor has no claim to AP they have no claim to a prescriptive easement. Show me a case where adding lateral support to an uphill property is actionable.

[jk]

Budwad, you’re on block and I’m not going to waste anymore time with your self aggrandizing behaviors. Have a great life. You simply are not worth my time.

[budwad]

Budwad, you’re on block and I’m not going to waste anymore time with your self aggrandizing behaviors. Have a great life. You simply are not worth my time.

You will be back and you will read every post I make.