Do I have a pending neighbor lawsuit in Missouri?

Question

Hi guys, I bought the house I live in back in May 2019, so I've been here for 9 months now. We are on 3 acres at the top of a steep hill; like mountain goat terrain. Today our neighbor at the bottom of the hill called on me to tell me that when it rains, and particularly with this year's apparently higher than usual rain fall, there is a lot of water rushing down our hill onto his property. He said the water has caused his retaining walls to start disintegrating.

He went on to say that the land adjoining his boundary and mine has 'changed'. He was hard to talk with as he's pretty old and hard of hearing, so I don't know if he means the land has shifted or what the story is; I'll go have a look tomorrow. He also said he's contacted a geologist to find out what's going on, and in order to figure it out the geologist will have to dig on my property with heavy equipment and he wanted my permission for the equipment and the dig on my property. Apparently they have to sample for shale or something. Being a good neighbor, I gave him permission; he asked 3 times (this was over the phone), and I said yes 3 times.

Thinking back about this, I'm starting to wonder a few things. Is there a possibility I could be liable for rainwater damage from my property onto his? If my land has shifted, am I obliged to make appropriate repairs or changes to my land? And if so, is it possible that I could be held liable for damage on his retaining walls? Did I make a mistake giving him permission to dig on my land?

Paranoia is starting to set in.

Mike McCarthy · Answer

What little I know about problems like this is that it's rarely an easy fix.My parents had sinkholes in their backyard (in NY) because when the house was built they backfilled the swamp with old logs and stumps, and covered with a few feet of dirt. Well sure enough, wood decomposes and leaves voids. Took a LOT of digging, some special geotextile fabric, and a lot of replacement dirt to fix it... until the next area opened up.Good luck. Happy you're getting the city involved too. I'm sure they'll figure it out - but it'll take a while. Keep us posted!

Michael King · Answer

Account ClosedThis is a "Mike, Mike, Mike" situation for sure. I went for a walk down the mountainside today. Looks like a landslide, not a rainwater issue. It seems the bulk of the damage is the land is starting to break away and drift downhill. This has caused his retaining wall to fall over and indeed it has moved toward his house and causing rippling of the of his yard. Looks pretty nasty. I believe that most of the slide is on his property, but there is some on mine too. I feel as though it's his land that the problem is starting at, but tearing away a big chunk of mine too. Seemed like a nice enough older, retired couple, probably 70-75. He gave me the geologist's number, so I guess on Tuesday I'll give him a call. I've included some pictures...it looks expensive for sure. Would homeowner's insurance cover for this? They've already paid for a $25K new roof on my house in the last year. And that's my house at the top of the hill.

Account Closed · Answer

That's a tough one. He probably means that hydrology has affected the area with the over abundance of rain. If his retaining wall is being affected it is not clear who has responsibility. How do you know that the contractor he hired won't worsen the problem? What if the contractor gets hurt on your property? Does your title insurance have an exception to the retaining wall problem?If you contact your homeowner's insurance (which is different than your title insurance) they will make a notation and your insurance rates will go up whether you file a claim or not, so don't contact them unless you actually have a significant problem. It probably would have been best to tell him you'd like to help but you can't give him an answer for a couple of days until you can actually see what he is talking about. And then meet with a local attorney to see what your liability is first. You may need a "hold harmless" wavier signed by him and the contractor. I don't know what the laws are in your jurisdiction.

Michael King · Answer

@Mike McCarthy Thanks Mike. The city engineer came out today. He was stumped. The dirt is just sliding down the hill, and it appears to have moved further since a couple of days when I last looked. We also had a survey done of it today with a hired geo engineer of some type. They plan on digging some sample excavation points to see what's troubling the ground. I'm now thinking that the neighbor's retaining wall, which is quite substantial, may be the root cause of the problem. Remove the 'support' of the ground, gravity is going to take over unless you mitigate it. That, or the dam that was built by the neighbor's house. Not a good situation.

Michael King · Answer

For anyone watching, seems there's more to this now. About 10 years ago, our mutual next door neighbor shored up the creek at the bottom of the hill to create a dam/lake. I had a look at the house that's sliding down the hill today, and it sits in the shadow of the dam wall. I'm starting to think that water seepage from the dam has created this problem. I supposedly have an engineer from the city, and a private contractor-engineer, both showing up today to have a look.

Michael King · Answer

Doing some research it seems that the homeowner at the bottom of the hill may be held liable, or the builder that built it. I read some law website that states that when a landowner removes support from below the land that has shifted (as in this case where they built their house after mine was built). It makes sense in that if you dig a hole in the side of a hill and not replace the support, then it could slip down hill. As for the builder (or any prior owner), if there's any information that the land may be unstable or require additional reinforcing when a structure is built, and that information is not disclosed, then that builder or prior owner will be liable. At least, this is my dumbed down version of it.

Mike McCarthy · Answer

@Michael King I would meet with your neighbor on the property and see what he’s thinking. It’s hard to explain over the phone what happens changed. But after you talk with him, you’ll get a better idea whether things sound reasonable, or if he’s being a crazy neighbor. I’d go in with an open mind and not be negative at all at your first meeting. See what he says and go from there. I’d imagine this geologist will need something in writing from you before he starts digging. The next step would be to talk to his geologist and find out his thoughts. Then I think you’ll be ready to talk to a lawyer (if needed) or be a good neighbor in whatever way. Good luck!