LEGAL BRIEFING - 'Finders, keeper' rule an issue when items sail over the fence

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Dear John,

My neighbor's kid has developed a habit of throwing his toys over my fence. I don't want to be one of those scary neighbors depicted in movies who has a "ball graveyard" in his backyard.

However, I get tired of allowing the kid into my backyard to retrieve the ball. He doesn't always tiptoe through the tulips, if you get my drift.

Sometimes, he doesn't even get permission before he comes into the yard. It has scared the heck out of me to look up and catch a glimpse of someone in my yard before I realize who it is.

Can I simply put a lock on my gate, post a "no trespass" sign and keep the balls, Frisbees, dolls and other debris that come flying into my yard?

Sincerely,

Grouchy Gert.

Dear Gert,

It is trespass to come into or cause anything to enter upon your property. Therefore, you are presumed to have damages and can collect them accordingly.

However, simply keeping the trespassing item is not a proper solution to the situation.

If the child were to get access to a priceless piece of sports memorabilia, like a baseball signed by every member of the 1948 Brooklyn Dodgers, and lob it into your yard, keeping it would not be appropriate because the amount of damage you suffered probably is less than the value of the ball. Similarly, if he were to hit a ball over the fence and through your window, keeping the ball would not be enough to recoup the loss from the broken window.

The damage should be calculated based upon the loss suffered rather than the value of the object causing the damage.

You implied that he occasionally damages your flowers. These would be damages worth seeking. Compensation for your time spent supervising him as he retrieves his item, a reasonable cost for access to your property, "pain and suffering" for surprising you, and similar non-tangible damages all have value. However, the value of these losses are probably not very high.

One suggestion I would make, before you decide to keep all objects or sue for damages, is to speak to the child's parents and try to reach an agreement.

For example, if the child is old enough to help with chores, he could pay off the damages by doing tasks. Perhaps, you could give him an item back if he shows you a good grade on an assignment at school.

It is not your job or duty to raise this child; that job belongs to his parents. However, as a member of his community, you can become a resource to teach him that actions have consequences, damages need to be paid and personal responsibility can start at any age.

If you have no interest in helping the child and still want to keep the items tossed into your yard, I would like to point out that keeping something belonging to someone else is a crime.

Also, if your intention to keep errant items in your yard should happen to extend to keeping the kid, that, too, is a crime. More importantly, kids tend to eat a lot and want things.

Sincerely,

John

John Hartzell is a practicing Walla Walla attorney. No attorney-client relationship is established via this column, which is for educational purposes only and is not intended as legal advice. Any information given is to illustrate basic legal concepts and does not state how any court would decide any matter. Have question? Ask John at askjohn@wwub.com.

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