We have had our property surveyed, and it appears that some of the steel "nail" markers placed by the survey have been removed. Is this a misdemeanor?Our neighbors have a flower bed that encroaches...

We have had our property surveyed, and it appears that some of the steel "nail" markers placed by the survey have been removed. Is this a misdemeanor?

Our neighbors have a flower bed that encroaches our property in the area of the missing marker.

Expert Answers
larrygates eNotes educator| Certified Educator

I would not be overly concerned about the survey markers having been removed; they can easily be replaced and the surveyor probably buried a metal rod below the marker that can be easily located with a metal detector. Of greater concern is the flower bed which encroaches on your property. I do not see this as a criminal act; although if your neighbor were to enter upon your property to weed or otherwise deal with the flowerbed, his doing so would constitute a criminal trespass. The presence of the flower bed does, however create a civil trespass for which you have a remedy. Since it is on your property, it is technically your flowerbed; therefore you have the legal right to remove it (only the portion on your side of the property line) or use it in any way you see fit as long as you yourself do not encroach on your neighbor's property.

One final point. Benjamin Franklin once said tall fences make good neighbors. I am not sure what your relationship is with your neighbor; but if you raise the issue, it will not be good. As far as adverse possession which the above post notes, it simply does not lie. One must take active possession of the property; I do not think a flower bed constitutes active possession. Basically, he just gave you a flower bed.

rstinejr | Student

@rienzi: I'm not going to call the cops about something I didn't see and can't prove.

@larrygates: sure, a new survey can replace the spikes, but that costs over $200.

From Googling, I get the impression that there are actual statutes in West Virginia and New Hampshire regarding removal of property markers.

The answer I got from www.JustAnswer.com, an online, fee-based service, is that there is not a specific law about this in Virginia, but that removing the spikes would constitute petty theft and perhaps tresspass.

rienzi | Student

Call the cops and see what they say. But I think your concern should be directed at the encroachment. Criminally what can you prove? If your neighbor does step forward and admits removing the markers because they were on his property, then the police are going to say its a civil matter and walk away. Real property interests favor the vigilant. If you ignore actual, open, continuous, hostile, notorious, etc. (i.e. adverse possession) encroachment for a period in excess of the statute of limitations period to remove the encroachment then you may lose your right to that property.