Peggy Hall, Asst. Professor, OSU Extension Agricultural & Resource Law Program .
Tree obstructions, unwanted vegetation and noxious weeds are serious matters for Ohio farmers, which is why several Ohio laws provide mechanisms for addressing these problems through the board of township trustees. Two recent Ohio court cases illustrate the practical impacts of the laws and demonstrate the consequences of both following and failing to follow the processes provided by these laws.
The first case, Kilroy v. Jackson Township, concerned the clearing of weeds and vegetation in a partition fence row. The case recently resulted in a judgment of over $56,000 against the board of trustees of Jackson Township in Montgomery County, including an unusual finding of personal liability against each trustee. The court determined that the trustees failed to perform a settlement agreement with the Kilroys concerning the clearing of their neighbor’s fence row. The settlement agreement arose from a lawsuit filed by the Kilroys asking the court to require the township trustees to perform their legal duties to have the neighbor’s fence row cleared of weeds and vegetation.
Ohio Revised Code 971.34 allows a landowner in a rural area to ask a neighbor to clear his or her side of a partition fence between the properties and, if the landowner fails to do so, to petition the township trustees to step in and resolve the problem. The trustees must view the property and determine whether the fence row contains brush, briers, weeds and vegetation and if so, “shall cause them to be cut, by letting the work to the lowest bidder, or by entering into a private contract therefor.” The Kilroys petitioned the trustees under this process after their neighbors failed to clear the fence row when requested, but the trustees did not act on the petition or arrange for removal of the vegetation.
After the Kilroys filed suit against the trustees and the neighbors, the parties entered into a settlement agreement in which the neighbors agreed to clear the fence row and the trustees agreed to have the row cleared if the neighbors didn’t do the work. The Kilroys later filed a second complaint alleging breach of the settlement agreement after neither the trustees nor the neighbors cleared the fence row. The second complaint included individual claims against the trustees for intentional interference with a contract and civil conspiracy. The neighbors finally cleared the fence row, but the Kilroys maintained the lawsuit against the trustees. The parties entered into a second settlement agreement in which the trustees agreed to pay the sum of $15,000 and to issue an apology letter to the Kilroys. Eventually, the matter ended up in court again for a breach of the agreement because the Kilroys did not receive either the $15,000 or the apology letter. The trial court determined that the trustees had signed the settlement agreement in both their official and individual capacities and had subsequently breached the agreement; the court awarded the Kilroys $15,000 as specified in the agreement plus an additional $37,558 in attorney fees and $3,888 for fees paid to expert witnesses. The trustees filed an appeal, but the Second District Court of Appeals agreed with the trial court’s decision.
Contrast the Kilroy case with a second dispute in Sterling Township, Brown County, where a farmer could not drive his new combine down a township road because of overgrown trees and brush along the road. The farmer asked the trustees to trim the trees and vegetation but the trustees did not do so. The farmer then trimmed the vegetation himself and submitted an invoice to the township for $1,863. When the township did not pay the invoice, the farmer filed a lawsuit claiming that the township trustees had failed in their duty to keep the road free of obstructions and had also failed to eliminate a known safety hazard. Included in the suit was a request to remove the trustees from office for failure to perform their official duties. The Brown County Municipal Court dismissed the farmer’s case and the farmer filed an appeal on the claim alleging that the trustees had failed their statutory duty to maintain the roadway.
The court of appeals analyzed Ohio Revised Code sections 5571.02 and 5579.08, which state that a township shall keep its roadways in good repair and shall cut or destroy all brush, briers, vines, and noxious weeds growing along the roadways between the first and twentieth days of June, August and, if necessary, September. The court noted that these sections of law do not provide the process for a private cause of action against the trustees as demanded by the farmer. To enforce the law, the farmer must follow the proper legal process, explained the court, which is to first formally request the trustees to perform the action and then ask the court for an order compelling the action, referred to as a “writ of mandamus,” if they fail to do so.
In this case, the farmer did not formally present his request to have the trees trimmed to the township trustees. He had called each trustee personally by phone and had visited one trustee at his home. The County Prosecutor had advised the farmer to make an official complaint to the trustees, but the farmer never attended a trustee meeting or made a formal complaint about the vegetation. By choosing instead to take matters into his own hands and trim the trees and vegetation himself, the farmer had “self-imposed” his own damages, said the court. Seeking reimbursement for his own work was not the proper method for enforcing the township’s duty to clear the vegetation.
The lesson here should be clear to both township trustees and farmers. Ohio law establishes duties and remedies for dealing with trees, weeds and vegetation in rural areas; township trustees must perform these duties and farmers must know how to seek a remedy. The different outcomes from these cases illustrate the importance of knowing and following the proper legal process.
Read Kilroy v. Jackson Township here and Mezger v. Horton here. See Ohio Revised Code sections here: 971.34 and 5579.08