Beaver dams divide neighbors

Beaver dams divide neighbors
Jury awards Toney residents $30,000 for flood damage

Monday, November 22, 2004

By DAVID HOLDEN
Times Staff Writer dholden@htimes.com

Dead trees, drowned emu chicks and flooded farmland caused by beaver dams in a Toney neighborhood persuaded a jury to decide against a Madison County landowner early this month.

After a trial Nov. 1-3, the jury awarded five Toney residents $30,000 in damages. Madison County Circuit Judge Jim Smith now must decide if the verdict will stand. He also must decide who will be responsible for removing a colony of beavers that built two dams on property owned by the John Howard family and who will be in charge of keeping the stream clear of obstructions.

Stuart Maples, a Huntsville lawyer representing John Elliott, Bob Winsor, John Zawazky, John Bowers, Lynn Campbell and John Southern, all of Toney, sued John Howard of Huntsville and his family. Zawazky was dismissed from the lawsuit before the trial started.

Maples and his clients declined to comment about the lawsuit because the judge's ruling is still pending. But during the trial, Maples argued that Howard had allowed a nuisance on his property that damaged his neighbors.

Under state law, the downstream landowner has no duty to remove beaver dams causing flooding upstream. But the law does not exclude upstream landowners from suing the landowner.

Ben Rice, Howard's attorney, argued that state and federal agencies could not control the beavers, and neither could his client.

Howard is the controlling partner in Howard Farms LLC, which owns about 800 acres of rolling farmland and wooded areas in Toney. An unnamed tributary runs through portions of Howard's property off Bo Howard Road where the dams are located and joins Beaver Dam Creek north of Beaver Dam Road.

According to testimony:

Elliott noticed flooding growing progressively worse every winter in the 1990s. He walked downstream along the little creek and found six or seven beaver dams on Howard's property.

In January 1998, water flooded the land of some of Howard's upstream neighbors. Southern testified that he was raising 250 emu chicks from 4 to 6 months old. The water drowned 56 of them. At that time, he said, the value of an emu chick was about $300.

Because of the flooding, the pen area turned into a waterlogged bog, so he had to slaughter 240 young adult birds to make room for the surviving chicks. The chicks could not be moved in with the mature birds, he said. It cost him $45 each to prematurely slaughter the adult birds, he said.

Elliott told Howard in the summer of 1998 about the flooding caused by beaver dams on Howard's land. Howard testified that he did not know about the beaver dams until he talked with Elliott about them.

Months passed and Elliott and his neighbors asked Madison County Commissioner Dale Strong for help.

Strong's rural district includes Toney and other areas in northern Madison County. He said he has torn out several beaver dams over the years in various parts of his district. He rates beavers as pests of the highest order.

"They clog up streams, drainage ditches and culverts," he said. "The resulting flooding damages roads, trees and farmland pasture lands. I can't think of a single thing they are good for."

Beavers are fur-bearing animals protected by federal laws. The U.S. Department of Agriculture works with state wildlife agencies to handle conflicts between people and beavers.

In areas where their activities do not damage property, beavers are useful, said Frank Boyd, state director of the USDA division of Wildlife Services. A beaver dam creates habitats for fish, aquatic birds and larger animals such as deer, he said.

A beaver dam also preserves the water table and limits soil erosion, Boyd said.

But population growth makes it harder to find places where beaver activities are not causing an outcry, Boyd said. The number of beavers is also increasing, because there are few trappers. Since the 1980s, he said, the market for beaver fur has declined dramatically.

Strong, following the advice of a USDA agent, tore out two dams on Howard's property in 1999 and installed a device called a Clemson Pond Leveler to control the flow of water through the stream.

The beavers were not removed, because the USDA discourages relocating beavers. Relocating beavers can cause the spread of diseases among the animals, Boyd said.

Before Strong's crew was finished installing the pond leveler, which took two or three weeks, the beavers had built two new dams upstream from the device, said Rice, Howard's lawyer. The next year, the water rose and flooded the same area again.

NOTE: In accordance with Title 17 U.S.C. section 107, any copyrighted material herein is distributed without profit or payment to those who have expressed a prior interest in receiving this information for non-profit research and educational purposes only. For more information go to: http://www.law.cornell.edu/uscode/17/107.shtml