What happens if a tree falls on my house but it is on a railroad right-of-way?

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What happens if a tree falls on my house but it is on a railroad right-of-way?

I live next to the railroad and there is a giant dying tree on their right of way. We asked for them to come cut it down, but they didnt want to pay for it. We have tried to hire a tree service to cut them but they can’t cut without a RR permit. The RR won’t issue the permit and is holding everything up. If this tree falls on our house, who is responsible for taking care of the damages? The RR company or us? Will our homeowner’s insurance pay for it, or make the RR pay for it?

Asked on August 18, 2019 under Real Estate Law, North Carolina

Answers:

SJZ, Member, New York Bar / FreeAdvice Contributing Attorney

Answered 1 year ago | Contributor

It's not either/or for your homeowner's insurance or the railroad paying for it: you can put into a claim to homeowner's, which will generally result in the fastest, least stressful payment of the majority of the loss; you can sue the RR for the deductible; and your homeowner's can exercise its right of "subrogation" to recover what it pays you for the RR.
The key is, you have evidentally put the RR on notice that the tree is dying--hopefully, you did so in writing (sent some way that you can prove delivery), or if you have not yet notified them in writing (as opposed to only via phone), do so immediately. If someone has notice of a dangerous condition, like a dead or dying tree, but nonetheless fails to take action to mitigate, or reduce, the threat, that failure to act is negligent, or unreasonably careless, and makes them liable.
So if they are on notice, they are liable for any damage done. You can sue them for the whole amount of any loss or costs; or you can, as stated above, put in a claim to homeowner's, sue for your deductible, then let your insurer go after them for reimbursement. The advantage of putting in the claim--which, after all is why you pay for insurance, to cover damage to your home--is that it will get the repairs done much faster and with less stress; if you sue for the money, you may not get it for many months or even years.


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