Issue 1:
Saturday, May 14, 2005, around 5pm, Dan Nitz and Jim Nitz stopped-by our home to seek permission for digging a ditch (approximately 100ft.) on our property. Their goal was to connect their man-made retention pond and future drain tile to our Ravine (which leads to lemon creek). Jim and Dan Nitz proposed to dig from the east side of the Ravine in-order to deepen it and remove several trees.
Diagram illustrating relationship to respective
properties and request being made:
Lemon
Creek Road
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I said “NO”. They seemed to understand my concerns about any erosion that would result from routing 80 acres of water across my property. Also, they clearly understood I did not want any trees removed or touched. They understood “NO” but asked me if I would think about it and if I would contact them in three weeks to let them know if my position of “NO” still stands or if I were to change my mind. They asked if I could contact them one-way-or-the-other by Saturday, June 4, 2005. I told them I would contact them. I also told them that Larry Evans would have to be brought in on the conversation if we were to change our minds.
Wednesday,
June 1, 2005, 8:00am. I called Dan Nitz
to give my final word on the proposed digging.
I said “NO”. Dan Nitz asked if I
would reconsider and meet him around 5:00pm to talk about other possible
solutions. I agreed to meet him, but
emphasized “NO to digging on my property” and “NO to removing any of my
trees”.
Around
4:30pm I arrived at the proposed site and found that the Nitz’s had dug a very
large and deep ditch on my property, approximately 100 feet long, 5 feet deep,
5 feet wide. They had removed dozens of
mature tees and cleared almost all trees and vegetation in approximately a 50
feet wide section. I asked Nitz’s
employee “Dan the equipment operator” when all this damage was done, he
estimated just before noon. He informed me that Jim Nitz had instructed
him to do it. He said Dan Nitz had
informed Jim Nitz that I had called earlier that morning and had said
“NO”. Jim Nitz told “Dan the equipment
operator” to remove the trees, dig in the ravine and dig a ditch 100 feet (from
the property line to the start of the ravine) anyway. “Dan the equipment operator” stated that he pointed out to Jim
Nitz the fact that I did not want them doing anything on my property and that
they shouldn’t do it. According to “Dan
the equipment operator” Jim Nitz said
the hell with the Wolfer’s, and ordered him to do it anyway.
100ft ditch, note: no more ground cover massive pile of my uprooted trees looking from ravine out to damage
view of damage to woods second view of damage different angle of
removed trees
I
returned to the house to inform my wife of what happened and went back to the
ravine around 5:00pm. Jim Nitz, Dan
Nitz, and “Dan the equipment operator” were waiting for me. I approached them to find out why they did
this and to make sense of this situation.
Jim Nitz started swearing, and ranting at me. I told him that he wasn’t going to intimidate me and that we were
going to talk about what they did in a civil manner. I told him I was very hot about the destruction of our property
and Jim Nitz attempted to put his hands on my forehead several times. Dan Nitz immediately stepped away and made a
phone call to someone. Jim Nitz stated
he knew I had called Dan Nitz and that I did not want them digging on my
property, routing his water across my land, or removing any of my trees, but he
did it anyway. Dan Nitz finished his
phone call and returned to the conversation stating that he wished he had
contacted his dad, Jim Nitz, before his Dad did the damage, and that his dad
didn’t know I had called him that morning.
(he did know about my position was certainly “NO” three weeks prior) Jim
Nitz just grinned and shrugged his shoulders.
Jim
Nitz, told me that they were under extreme time pressure to get the land ready
for planting. He also said that they
had many special grape plants in cold storage, this was very expensive, and
they needed to get those plants in the ground to establish the plant’s root
systems before the growing season was over, so they were not going to worry
about my position regarding my land.
Both Jim and Dan Nitz informed me that if they didn’t dig the ditch and
rout all the water across my land, their grapes would get “wet-feet”, dampness
around the roots, and according to the Nitzs, this could affect the plants and
harvest yields. Jim Nitz felt he had a
right to do what he was doing and that the drain commissioner would force me to
allow the Nitz’s to use my ravine anyway, and that the drain commissioner would
also charge me $10,000 to $20,000 for engineering and clean-up fees, and I
should be grateful the Nitzs were willing to do it for free.
Thursday,
June 2, 2005. I called the drain
commissioner, Rodger Zilke, and asked him come see the damaged property. He was shocked that anyone would do that
kind of damage to someone else’s land.
He stated that my ravine was in excellent shape and that it was a
private ravine, not part of the drain commissioner’s authority. He also told me that it was his opinion,
that Jim and Dan Nitz had no right to trespass on my land and do what they did.
He also felt that I do not have to allow them to drain a drop of water, nor
eighty acres, across my land. And since
they removed an 80 year-old (not sure) existing tile when they dug the ditch, I
have no obligation to replace it, nor do they have authority to replace it on
my land.
Friday, June 3, 2005, I contacted Attorney Jerry Johnson to have him write a letter to Jim Nitz and Dan Nitz, informing them and their employees to stay off my land. Approximately 5:00pm I delivered the letters, by hand, to Dan Nitz, who was at his office ( 7707 Lincoln Ave, Baroda, MI). Dan Nitz read the letter, understood my position, and invited me into his office to talk about what happened. He informed me that he was going to continue what he started. On Monday June 6, 2005, he was going to tile the 20 acres, rout the main drain tile into the ditch they had dug June 1st and down my ravine. He firmly let me know that was the way it was going to be. He stated that he had too much money invested in his property to have me stop him. I warned him that I was seeking legal counsel and that I would be burying the ditch they had just dug on my land. At this point, Dan Nitz tried to compensate me for the damage to the trees, and for digging the ditch. He offered to pay me a Thousand dollars for the damages or to gravel my driveway. I said no, I do not want this ditch or any water crossing over my property.
Monday,
June 6, 2005, Jim and Dan Nitz
aggressively put in 20 acres of drain tile.
They had installed 17 feeder lines into a main line, which runs parallel
to our property line. I called Attorney
Jerry Johnson to let him know the Nitzs were moving ahead with their
plans. Mr. Johnson contacted Dan Nitz
and told him not to rout the drain tile onto my land. Dan Nitz started to curse profanities at Jerry Johnson and
crudely informed him that he was not routing the drain tile across my property,
rather he was routing the drain tile around my property and across Owen Moores
land. Note, Recently I asked Mr. Moores
about this, and he never heard of Jim or Dan Nitz.
Tuesday,
June 7, 2005, “Dan the equipment operator” came to see me at my home. He told me again that Jim Nitz knew I had
called Dan Nitz and that I had told Dan Nitz that I did not want anyone digging
in my ravine, digging a ditch from the property line to my ravine, and that I
did not want them touching or removing any of my trees. “Dan the equipment operator” felt bad for
doing it. He also told me that they
purposely removed all the trees that bordered our property (Mine and Nitz’s
property). Just before we had signed
the purchase agreement with the Zech estate,
“Dan the Equipment operator” was
told to take out those trees quickly before the property lines were clearly
established and before I could do anything about it. When the Nitzs were confronted, they apologized, and blamed the
kid, “Dan the equipment operator”, for not paying attention. They came across the property line by 20
feet or more and removed trees for approximately 700 feet along the property
line. According to “Dan the equipment
operator” he was told to do this, on purpose.
They also took many of those trees after we signed the purchase
agreement.
Wednesday,
June 8, 2005: We had a little more than
1.5 inches of rain, according to the neighbors rain gage. An incredible amount of water came through
the new drain tile. Note: So much water
was carried through this mainline drain tile that the end of the tile was
exposed. It really was routed onto our
property, into the ditch they had recently dug and down our ravine. Not around our property as Dan Nitz so
angrily told attorney Jerry Johnson.
Diagram
illustrating drain-tiles in relationship to draining on our land.
Lemon
Creek Road
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Issue
2:
Over
the past year Jim and Dan Nitz dug a man-made retention pond approximately the
size of a football field and approximately 20 feet deep. Approximately 50 acres have been tiled into
this retention pond in-order to handle the drainage when it rains. The pond is always full, even during the
drought we have been experiencing this May, June and beginning of July. When we had 1.5 inches of rain on June 8,
2005, the 50 acres of land was drained into this man-made retention pond, and
since the pond was already full of water, from being spring fed, all the excess
water was channeled across Nitz’s land, to the ditch they had just dug on our
property, and down our ravine. There
is a significant volume of water being diverted down our property, many times
greater than the large volume of water that comes from the 20 acres. Earnest Hildebrand, township supervisor,
Rodger Zilke, drain commissioner, and others have expressed opinions that this
will significantly erode the ravine, my trees, and eventually my tillable
land.
Diagram
illustrating pond, drain tiles and additional water flow over our property:
Lemon
Creek Road
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Water images
Me, finding the drain tile. See the incredible The
drain tile routed to the recently dug
Amount of water coming from the retention ditch on my property. The water flowing is
Pond. From ONLY 1.5 inches of rain.
Image showing the volume of water 80 acres Second image showing the water
cutting
Can produce.
Water is Cascading down our ravine. Through
the ravine, leading to lemon creek
I asked Rodger Zilke, drain commissioner, for additional help and advice, he officially could not help me, but he strongly recommended that I immediately make and appointment with the law firm, Hubbard, Fox, Thomas, White & Bengtson, P.C. One of the firms specialty is water-shed and draining issues. I met with Mark T. Koerner and his assistant. They were very helpful and provided valuable insights on the laws that govern situations like mine. Even though there was an old existing tile, where Jim and Dan Nitz had dug the ditch, the Nitzs had no legal right to dig on my land or to remove the old drain tile, as well as they had no right to remove any trees from my property, especially since I said “NO”. According to Mr. Koerner, there is no grandfather or prescribed easements of any kind, and the Nitzs have no right to maintain or remove the old tile, or to increase the volume of water through the old drain tile and/or over my land. His man-made retention pond is not considered part of the natural water shed, nor is the tile systems he recently installed. And this is certainly trespassing, removing trees, illegal routing of water, especially since I had told them “NO”!.
Issue
3:
During
the development of Jim and Dan Nitz’s property, they significantly raised the
soil level of the land directly north of our property. The volume of increased surface runoff is
significant and has caused a major water-shed issue in our back yard. Water now drains onto our property and down
a second small ravine behind the house.
The increase of water flowing down this ravine on June 8th, 2005, was so
significant that it washed out our newly graveled driveway. I spoke with the previous owner about this
and he stated in the 40 or more years he has lived in our house he has never
seen anything like it. This ravine was
used in the old days to drain the corner of the field. A very small, insignificant amount of water
would drain down this ravine. Even in
the wettest time of the year, it never flowed like it is now. It might puddle in extreme rainfall, but
never to the extent we experienced on June 8, 2005
Back
yard
Picture taken just before the June 8th
rain Picture taken after June
8th rain
Picture
of washout from raised land. The image
shows that the land is approx. 3 feet higher at the point of
The washout. The land continues to slope higher toward
the North, or onto Nitzs property
Diagram
illustrating raised soil levels and the significant increase in water-shed over
our property:
Lemon
Creek Road
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Issue
4:
September,
2004, Dan Nitz asked if he could move his Excavator across our land. He was going to dig a pond for Vincent Wier,
our neighbor to the south, and wanted to avoid securing a costly permit for
moving heavy equipment on the road. I
agreed to allow him to do this, as long as he does not harm any trees located
on the property line that boarders Mr. Wier and us. In the process of moving the heavy equipment over to Vincent
Wier’s property, Dan Nitz took out three large trees, making a opening between
the properties far larger than what was needed for the excavator. Plus the Nitzs severely damaged existing
drain tile. Dan Nitz, agreed to fix the
drain tile. A month or so later, I
discover that Dan and Jim Nitz had installed a culvert and road over the creek
bed that is approximately 10 feet inside my property line. I told them to remove it and to fix my drain
tile. They removed it this past May by
driving their excavator, without permission, across my property, and over Larry
Evens beans (Larry Evens leases my field for farming) , but my drain tile is
still broken.
excavator
tracks crossing my property this Past May images
of trees removed, when crossing my property
Diagram
illustrating the covert/bridge/broken drain tile.
Lemon
Creek Road
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Issue 5:
Dan
Nitz and Jim Nitz are planning on draining the 10 acres of woods/swamp/wetland
down our ravine by digging a ditch from the pond through the woods and
connecting to the ditch they have recently dug on our property. They plan on this ditch serving as a water
way since the man-made retention pond does not work. It will also serve as a drainage system for the swamp, results
will be drying out the wetlands and there will be a significantly greater
volume of water flowing over our land.
Diagram
illustrating the planned draining of wetlands and waterway for the pond down
our ravine.
