There's a tree around the boundary between my property and the neighbor's, which has grown so big that it presses into my garage and huge branches could come down on my deck. My neighbor says the tree is on his property and refuses to do anything. My belief is that the line runs about halfway through the tree. Can I just cut the tree down, or should I sue?

My humble opinion is that a court would order the two of you to split the cost of pruning or removing the tree, whichever is required to eliminate any damage.

If there is doubt as to the location of the property line, one or both of you should hire a licensed land surveyor. The licensed surveyor's duty is to determine the actual line, regardless of who pays. That's why it's better if you split the cost. I had a New Hampshire land dispute case in which my client and the neighbor hired different surveyors at their own expense. The two licensed surveyors staked out identical lines. You may end up with a survey line, but a hazard crossing the line. Both property owners may have liability for a hazard crossing the line.

The cost of chopping or pruning the tree also could be fought over, with each submitting estimates to the court for a final decision. If one neighbor removes what the other neighbor claims is "its" tree, then there is a cause of action called "timber trespass" that requires expert testimony as to the value of the tree.

My recommendation: Resolve this now, amicably without involving attorneys and courts.

A final factor is that New Hampshire courts are presently in crisis due to severe budget cutbacks. So, any judicial resolution could potentially be delayed for a very long time, through no fault of the courts.

Can the defendant sue the plaintiff and its lawyer after the case was settled? We just settled a case involving an "alleged injury" on our property. We settled by paying less than trying the case in court would have cost. We have a lot of evidence that points to the accident not even occurring on our property.

I want to sue the former plaintiff and/or his attorney to recover our legal fees and damages how this affected our lives. Our insurance company provided a defense, but we followed their recommendation and also hired our own attorney. The settlement document prohibits the plaintiff from making any future claims against us, but says nothing about us making additional claims.

A settlement is final. Courts nearly always enforce settlements due to the need for finality, certainty in the law and the public policy encouraging out-of-court resolution.

The specific language regarding the plaintiff's relinquishment of the right to sue will be read to infer the reciprocal promise that the defendant also will not bring additional claims. If the case was as unsubstantiated, as you suggest, I highly doubt that an insurance company, in the current litigation climate, would have offered a dime. Most insurance companies would much rather pay their selected counsel to try a case and take a risk than put a dime in the pocket of a personal injury claimant.

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Andrew Myers of Derry has law offices in Derry and North Andover. He is a member of the American Association for Justice and the New Hampshire Trial Lawyers Association. Send questions to andrew@attorney-myers.com.

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