Thursday, May 31st, 2007
By Shelley Grieshop
Farmer wants end to tree feud
An Auglaize County farmer accused of removing trees and other debris from a neighboring property in January is asking the court to dismiss the pending felony charges against him, claiming his rights were violated.
Thomas Schmitmeyer, 39, of Celina, who owns farmland along the 2000 block of Waesch Road in rural St. Marys, was indicted in April for breaking and entering, and theft, both fifth-degree felonies, after he removed a tree or trees from land adjacent to a field he owns, according to an Auglaize County Sheriff's Office report.
His attorney, Robert Kehoe of Wapakoneta, filed a motion to dismiss the charges this week in Auglaize County Common Pleas Court.
According to the recently-filed motion, Schmitmeyer admits to trimming trees and removing branches, weeds and rusty fence wire that encroached on his property and prevented him from farming a portion of his land.
Kehoe claims his client had the right to remove the encroaching debris under the 14th Amendment of the U.S. Constitution, which says the state shall not deprive a homeowner of full use and enjoyment of his/her property. Kehoe also alleges that Schmitmeyer had the right to protect his/her own property.
Kehoe told The Daily Standard he believes the court case could have "significant impact" upon area farmers and their ability to use and protect their property from encroachment.
According to Kehoe, Schmitmeyer owns a 100-acre parcel of farmland that is adjoined to the south by land that has been designated wetlands by owners George Wiss and Marilyn Kuenning. Dividing the two properties is a hedge row of trees, rotten fence posts and rusty, barbed wire fence, Kehoe states.
Schmitmeyer reportedly asked his neighbors to trim the overhanging and protruding branches and other items but they refused and subsequently denied Schmitmeyer's offer to do it for them, the court document states.
On Jan. 26, according to Auglaize County Sheriff's records, Schmitmeyer removed a tree or trees, valued at more than $500, that were located on the property line.
Kehoe argues that Schmitmeyer used "reasonable care" to trim the hedge fence row and pile the trimmings in a "neat pile on his side of the row, where it remains to date."
Kehoe, in his motion to the court, said Ohio law recognizes property owner's rights to use "self-help" in removing encroachments from privately-owned land, and Schmitmeyer is being punished by a "severe felony criminal statute" for doing so.
Kehoe claims the state of Ohio "selectively and intentionally chose to prosecute" Schmitmeyer for his interference but "failed to and intentionally chose not to prosecute" Wiss and Kuenning for intruding on Schmitmeyer's land.
Kehoe noted that Schmitmeyer's rights should be given equal consideration by the court:
"The Constitutional guarantee of equal protection of the law means that no person or class of persons shall be denied the same protection of the law ... in their life, liberty or property," Kehoe wrote.
If the case is not dismissed and Schmitmeyer is convicted of the offenses, he faces up to a year in prison and a $2,500 fine.
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