Beaver Dam Question

A buddy of mine came to me with the problem that i cant answer. He has a beaver dam on his land that they love because they duck hunt over it. The problem is that it has become so large that it is flooding a neighbors property. They DO NOT want to destroy the dam, it is ALL on his property, but the neighbors want it destroyed. Now the question is this, Does he have to have the dam destroyed if it is hurting the neighbors land, or is the neighbor just SOL becuase the dam is not on his property??

If the dam is destroyed and the beavers aren't killed then it'll be built back. I hate to see good duck holes destroyed. My recommendation is he should look into a leveling system such as the Clemson Beaver Pond Leveling System. It will give him the power to adjust the pond depth/water level. The beauty of it is you let the beavers build the dam back then you control the water. Contact the South Carolina Extension Service for plans.

This is the type case which would ultimately have to be decided by a Civil Jury. It would appear to me that given the conditions you describe, the neighbor has a legitimate complaint.

It seems to leave room for a lawsuit. Landowner has been advised the beaver dam is causing damage to his neighbor's property. Landowner has done nothing to remove the dam that is causing damage. Slippery slope that could end up costing the landowner. He might be best to try the Beaver Pond Leveling System or just damage the dam. As long as it is 750 feet from the property line, I think he can use explosives without a license.

My recommendation is he should look into a leveling system such as the Clemson Beaver Pond Leveling System. I

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He is much better off to do absolutely nothing. Anything that he does will be claimed to have "aggravated" the problem.

Claiming that the beavers are "his" problem is akin to claiming that the owner of woodlot is liable for the deer that come out at night and eat his neighbor's corn.

If you get down to southeast Georgia, you will find that the "Law of Beavers" is pretty well settled.

while we are discussing this.... my brother is on the other side. beaver dam is about 25 feet downstream from his property. zoned agricultural. he sells hay off this land. no one knows who owns the land. taxes havent been paid on it in years. last known owner is deceased. what should he do? thanks for any info.

Vernon Holt said:

This is the type case which would ultimately have to be decided by a Civil Jury. It would appear to me that given the conditions you describe, the neighbor has a legitimate complaint.

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Why?
Does the original landowner have a legitimate complaint against the beavers for the pond they built or the trees they took? How can you file against a beaver for a flood?
If you want to keep the pond for duck hunting then register the land into the state wetlands program.

what should he do? thanks for any info.
Reply With Quote

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Night time, dynamite, a bit of imagination, and a plan.

I've seen timber harvesters dynamite dams in the morning, work all day, and the dams would be rebuilt the next morning, and the cycle starts over.

You have to remove the beavers one way or another, usually with extreme prejudice.

liability would fall upon the State of Georgia Department of Natural Resources.

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There is no "liability", any more than if the stream changed course, or a rock slide blocked the stream. It's not like the landowner is feeding and breeding the beavers.

Contrary to widely held opinions, there is not necessarily a "liable" person for all damages.

Sometime when your're riding US 341 between Jeusp and Brunswick, look at the culverts that go under the railroad that parallels the highway, especially from Gardi south. More than likely you will see some of the culverts ****ed up. As the swamp rises and falls through the culverts, the poor beavers have to figure out which end to dam. The RR has a never ending beaver eradication program,

Beavers move into the landowners swamp. With the landowners knowledge the beavers build a dam which floods a portion of the neighbors property which was formerly classified as upland. The neighbor has never had floodwater encroach on his land before.

The beaver dam becomes part and parcel of the "landowners" property. He has the option of removing the dam as well as the option of keeping it intact. Since he likes to duck hunt, he opts to keep the dam intact.

By virtue of his election to keep the dam, he has unwittingly caused harm to his neighbor's property and has placed himself in the position of being liable for damages to his neighbor's property.

Cases like this have been acted out many times when a tree dies on one person's property, the owner of the tree knows that it is dead and is likely to cause damage if not taken down. He fails to remove the tree and after some time it falls on his neighbor's garage and does serious damage. The neighbor sues and recovers serious damage.

As previously stated, these types of matters are usually decided by a jury. If I were on the jury I would have no reluctance to award damages to the neighbor, given the above set of circumstances.

Not to mention

Keep in mind restitution for the dedicated "wetlands" must be made before developing the land or draining it back to an upland state when the landowner(s) decide duck hunting isn't the priority it once was and wish to sell their land with the most available acreage possible.

Meaning you must provide the state with an equivilent amount of land dedicated as marsh habitat or whatever the statute requires when you eliminate the wetlands you currently have.

All legal issues aside...this dam is on your buddies property and has gotten so large it is flooding his neighbor's property. I assume by your posts, he has the ability to remove it, but doesn't want to because he loves duck hunting there. What happened to being a good neighbor? Is his duck hunting so important to that he is willing to say the neighbor is "SOL" as you put it?

Morally, I would say you buddy needs to reduce the dam size and find a way to drain it down so it doesn't negatively impact his neighbor's property. Keeping it so large that it floods your neighbors just so you can kill a few ducks at the expense of damaging and flooding your neighbor's property is pretty selfish IMO.

If he can't do anything about it, he should give the flooded neighbor the opportunity to try and fix it himself or hire professional help.

By virtue of his election to keep the dam, he has unwittingly caused harm to his neighbor's property and has placed himself in the position of being liable for damages to his neighbor's property.

Cases like this have been acted out many times when a tree dies on one person's property, the owner of the tree knows that it is dead and is likely to cause damage if not taken down. He fails to remove the tree and after some time it falls on his neighbor's garage and does serious damage. The neighbor sues and recovers serious damage.

As previously stated, these types of matters are usually decided by a jury. If I were on the jury I would have no reluctance to award damages to the neighbor, given the above set of circumstance

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Unfortunately for the aggrieved party, you will not be sitting in a jury in this matter any time soon as the Georgia Court of Appeals clearly disagrees with you. The last paragraph in division one of the following is pretty humerous:

(you might note that in division 2 the Court of Appeals determines that merely arguing the point is frivolous.)

BRACEY v. KING.

A91A0438

BANKE, Presiding Judge

The appellant brought this action against the appellee seeking to recover for alleged flooding damage to her property caused by the downstream obstruction of a creek. The case is before us on appeal from the grant of the appellee's motion for summary judgment.

On March 30, 1988, the appellee and his brother sold the appellant a vacant lot in a subdivision which they were developing. The lot was traversed by a natural stream, and the appellant acknowledged at the time of the purchase that a portion of the property was in a flood plain. Subsequent to the purchase, she observed that water was backing up onto the lot as the result of one or more dams which had been constructed downstream by beavers, on property still owned by the appellee and his brother. The appellant complained about this to the appellee's brother and to the real estate broker who had handled the sale, and the appellee's brother responded by having a backhoe brought in to destroy the dams; however, within a month the beavers had rebuilt them. Again the appellee's brother had a backhoe brought in to destroy the dams, but again the beavers prevailed. The appellant does not allege that she or any of her agents have been denied permission to enter upon the property of the appellee and his brother to remove the dams. The trial court granted the appellee's motion for summary judgment based on a conclusion that the dams constituted a natural obstruction which the appellee was under no legal obligation to remove. Held:

1. "The owner of land through which nonnavigable watercourses flow is entitled to have the water in such streams come to his land in its natural and usual flow, subject only to such detention or diminution as may be caused by a reasonable use of it by other riparian proprietors. The diverting of the stream in whole or in part from its natural

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and usual flow, or the obstructing thereof so as to impede its course or cause it to overflow or injure the land through which it flows ... shall constitute a trespass upon the property." OCGA § 51-9-7. However, "a landowner is not liable for the diversion [or obstruction] of surface water unless he diverts [or obstructs] the natural flow of water by 'artificial means.'" Kiel v. Johnson, 179 Ga. App. 43, 44 (2) (345 SE2d 131) (1986). Accord Brown v. Tomlinson, 246 Ga. 513, 514 (272 SE2d 258) (1980).

The trial court clearly was correct in its conclusion that a beaver dam is naturally created as opposed to an artificially created obstruction. Cf. Dawson v. Wade, 257 Ga. 552 (361 SE2d 181) (1987). The appellant argues that the appellee and his brother nevertheless became responsible for the dams by "allow[ing them] to exist for the length of time it took to damage appellant's lot and decrease its value." This contention is, however, completely contrary to established precedent.

"[A] riparian owner is not to be held responsible for the effects of the forces of nature, ... and he owes no duty either to a lower or to an upper riparian owner to remove [natural] obstructions, so as to release water thereby caused to be backed over the land of an upper riparian owner; and therefore a failure to do so, even after notice, does not subject such owner to an action ex delicto for damages. It is true that a riparian owner is not to be allowed to 'co-operate with, augment, or accelerate' [cit.] the forces of nature to the injury of another riparian owner, and that because of an existing easement resting in the plaintiff upon adjoining lands to have the water flow as to natural quantity from his land [cit.] the defendant 'would as to such naturally arising obstructions be bound ... to permit the plaintiff to enter upon his (defendant's) land after due notice, and at her (his) own expense ... clear away such naturally arising obstructions from the channels' [cit.]; and where the defendant refused to permit the plaintiff at his own expense to remove the obstruction an action for damages would lie, as was held in Parrish v. Parrish, 21 Ga. App. 275 (94 SE 315) [1917]. However, ... no duty rest on [the defendant] to remove the obstruction...." (Emphasis from original.) Cole v. Bradford, 52 Ga. App. 854, 855 (184 SE 901) (1936). Were the law otherwise, then the distinction between natural and artificial obstructions would be completely illusory.

There is no suggestion in this case that the appellee and/or his brother imported the offending beavers onto their property, trained them to build the dams, or in any way assisted or encouraged them in this activity. Rather, the evidence indicates without dispute that the appellee and his brother were not even aware of the existence of the dams until the appellant complained about them. Accordingly, the trial court did not err in granting the appellee's motion for summary

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judgment.

2. Finding no basis upon which a reversal of the trial court's judgment could reasonably have been anticipated, we hereby assess a $300 penalty against the appellant pursuant to Rule 26 (b) of this court for filing a frivolous appeal. Upon the return of the remittitur from this court, the lower court is hereby ordered to enter judgment against the appellant and in favor of the appellee in this amount.

Judgment affirmed with direction. Carley and Beasley, JJ., concur

Decided May 31, 1991

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thanks 25.06 that was just what i needed to know!! I will print this and take it to him.

This reminded me of this letter from the State of Michigan and the reply sent by the "Offender"

STATE OF MICHIGAN
Reply to: GRAND RAPIDS DISTRICT OFFICE STATE OFFICE BUILDING 6TH FLOOR
350 OTTAWA NW GRAND RAPIDS MI 49503-2341
JOHN ENGLER, Governor
DEPARTMENT OF ENVIRONMENTAL QUALITY
HOLLISTER BUILDING, PO BOX 30473, LANSING MI 48909-7973
INTERNET: http://www.deq.state.mi
RUSSELL J. HARDING, Director

December 17, 1997

CERTIFIED

Mr. Ryan DeVries 2088 Dagget Pierson, MI 49339

Dear Mr. DeVries:

SUBJECT: DEQ File No. 97-59-0023-1 T11N, R10W, Sec. 20, Montcalm County

It has come to the attention of the Department of Environmental Quality that there has been recent unauthorized activity on the above referenced parcel of property. You have been certified as the legal landowner and/or contractor who did the following unauthorized activity:

Construction and maintenance of two wood debris dams across the outlet stream of Spring Pond. A permit must be issued prior to the start of this type of activity. A review of the Department's files show that no permits have been issued.

Therefore, the Department has determined that this activity is in violation of Part 301, Inland Lakes and Streams, of the Natural Resource and Environmental Protection Act, Act 451 of the Public Acts of 1994, being sections 324.30101 to 324.30113 of the Michigan Compiled Laws annotated. The Department has been informed that one or both of the dams partially failed during a recent rain event, causing debris dams and flooding at downstream locations. We find that dams of this nature are inherently hazardous and cannot be permitted. The Department therefore orders you to cease and desist all unauthorized activities at this location, and to restore the stream to a free-flow condition by removing all wood and brush forming the dams from the strewn channel. All restoration work shall be completed no later than January 31, 1998. Please notify this office when the restoration has been completed so that a follow-up site inspection may be scheduled by our staff. Failure to comply with this request, or any further unauthorized activity on the site, may result in this case being referred for elevated enforcement action. We anticipate and would appreciate your full cooperation in this matter.

Please feel free to contact me at this office if you have any questions.

Sincerely,

David L. Price
District Representative Land and Water Management Division




REPLY:


Dear Mr. Price:
Re: DEQ File No. 97-59-0023; T11N, R10W, Sec 20; Montcalm County

Your certified letter dated 12/17/97 has been handed to me to respond to. You sent out a great deal of carbon copies to a lot of people, but you neglected to include their addresses. You will, therefore, have to send them a copy of my response.

First of all, Mr. Ryan DeVries is not the legal landowner and/or contractor at 2088 Dagget, Pierson, Michigan - I am the legal owner and a couple of beavers are in the (State unauthorized) process of constructing and maintaining two wood "debris" dams across the outlet stream of my Spring Pond. While I did not pay for, nor authorize, their dam project, I think they would be highly offended you call their skillful use of natural building materials "debris." I would like to challenge you to attempt to emulate their dam project any dam time and/or any dam place you choose. I believe I can safely state there is no dam way you could ever match their dam skills, their dam resourcefulness, their dam ingenuity, their dam persistence, their dam determination and/or their dam work ethic.

As to your dam request the beavers first must fill out a dam permit prior to the start of this type of dam activity, my first dam question to you is: are you trying to discriminate against my Spring Pond Beavers or do you require all dam beavers throughout this State to conform to said dam request? If you are not discriminating against these particular beavers, please send me completed copies of all those other applicable beaver dam permits. Perhaps we will see if there really is a dam violation of Part 301, Inland Lakes and Streams, of the Natural Resource and Environmental Protection Act, Act 451 of the Public Acts of 1994, being sections 324.30101 to 324.30113 of the Michigan Compiled Laws annotated.

My first concern is - aren't the dam beavers entitled to dam legal representation? The Spring Pond Beavers are financially destitute and are unable to pay for said dam representation - so the State will have to provide them with a dam lawyer. The Department's dam concern that either one or both of the dams failed during a recent rain event causing dam flooding is proof we should leave the dam Spring Pond Beavers alone rather than harassing them and calling them dam names. If you want the dam stream "restored" to a dam free-flow condition - contact the dam beavers - but if you are going to arrest them (they obviously did not pay any dam attention to your dam letter-being unable to read English) - be sure you read them their dam Miranda rights first.

As for me, I am not going to cause more dam flooding or dam debris jams by interfering with these dam builders. If you want to hurt these dam beavers - be aware I am sending a copy of your dam letter and this response to PETA. If your dam Department seriously finds all dams of this nature inherently hazardous and truly will not permit their existence in this dam State - I seriously hope you are not selectively enforcing this dam policy, or once again both I and the Spring Pond Beavers will scream prejudice!

In my humble opinion, the Spring Pond Beavers have a right to build their dam unauthorized dams as long as the sky is blue, the grass is green, and water flows downstream. They have more dam right than I to live and enjoy Spring Pond. So, as far as I and the beavers are concerned, this dam case can be referred for more dam elevated enforcement action now. Why wait until 1/31/98? The Spring Pond Beavers may be under the dam ice then, and there will be no dam way for you or your dam staff to contact/harass them then. In conclusion, I would like to bring to your attention a real environmental quality (health) problem: bears are actually defecating in our woods. I definitely believe you should be persecuting the defecating bears and leave the dam beavers alone. If you are going to investigate the beaver dam, watch your step! (The bears are not careful where they dump!) Being unable to comply with your dam request, and being unable to contact you on your dam answering machine, I am sending this response to your dam office.

Sincerely,
Stephen L. Tvedten

That's a classic letter, makes you want to have a beaver problem with the state just to send it. Hilarious.

Slingblade said:

This reminded me of this letter from the State of Michigan and the reply sent by the "Offender"

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That's the first thing that came to mind when I read it, as well. There was a post here titled "The Dam Beavers."

a .22 rifle will deal with the beavers, or tear through the dam and install a long drainage pipe then let the beavers build back the damover it. it will maintain whatever level you set it at. just google beavers and you'll find a wealth of info on how to deal with them. i just killed six out of our small creek that had about an acre flooded. they're fun targets. then have 'em tanned or whatever. after that I just tore holes through it and it drained. worked good for us, but we didn't want to keep the pond, and knew that it would flood the neighbor's field eventually, so being good neighbors we got rid of them.

gw