WHEN GOOD TREES GO BAD
Your tree is growing! Do something!
That was Ed Chandler’s lament to his neighbors, the Larsons. The nerve of those Larson people, owning a tree growing near the boundary with Ed’s place. What’s worse, they had the unmitigated gall to permit the tree to drop its leaves on Ed’s property, and to let the tree’s roots to grow up to his garage foundation. Ed complained mightily, but to no avail.
Ed could have stood for merely mitigated gall, but not this unmitigated kind. Oh, the humanity! So, this being America in general and Illinois in particular, Ed sued. He claimed that “as a consequence of the growth of that tree plaintiff’s garage had been severely and greatly damaged from the roots of the tree so that ‘the foundation has been broken, walls damaged and the roof coming apart’.”
The trial judge, being a flinty, self-reliant sort, threw out the suit, holding that the tree was doing what trees do – growing – and the Larsons weren’t responsible for that. The Court of Appeals disagreed, citing Professor William L. Prosser’s gold-standard treatise on tort law:
“[I]t is scarcely suited to cities, to say that a landowner may escape all liability for serious damage to his neighbors, merely by allowing nature to take its course. A different rule accordingly has been developing as to urban centers. * * * [W]hen the tree is in an urban area, * * * the landowner now has a duty of reasonable care, including inspection to make sure that the tree is safe. Recent decisions have extended the right to reasonable protection from travelers on the street to adjoining landowners as well.”
Like it or not, the Massachusetts Rule increasingly seems to be a relic of a bygone era. The Illinois courts still seem to discount normal tree problems – falling leaves, sap and the like – but when genuine harm (we call it “sensible harm”) results to an adjoining landowner from a tree’s natural development, the tree’s owner may be liable for repairs and removal of the tree.
Chandler v. Larson, 148 Ill.App.3d 1032, 500 N.E.2d 584 (Ct.App. Ill. 1986). Chandler complained that his next-door neighbor, Larson, had a tree that for some time had been growing over and onto Chandler’s property, with the roots growing under his garage and the leaves growing above his property. As a result of the tree’s growth, Chandler’s garage foundation has been broken, with the walls damaged and the roof coming apart. Chandler asked the Larsons to cut down their tree, but they refused. Chandler asked for an injunction ordering that the tree be destroyed. The trial court refused.
Held: The appeals court ruled that an urban property owner owed his adjoining landowner the duty of reasonable care, which necessarily would include taking reasonable steps to prevent damage to the adjoining landowner’s garage caused by roots of the urban property owner’s trees. A complaint which alleged that the adjoining landowner had placed the urban property owner on notice that the roots from his trees were causing considerable damage to adjoining landowner’s garage and which alleged that although urban property owner had received the notice, he refused to uproot the tree or to use other methods which would prevent further harm, stated a good cause of action for negligence.
The ruling is substantially at odds with the traditional Massachusetts Rule that an owner of land is entitled to grow trees on any or all of his land and that their natural growth reasonably will result in the extension of roots and branches onto adjoining property, and the adjoining landowner’s only remedy is to trim back the roots and branches. The appeals court in this case held urban landowner Larson to a higher “city dweller” standard. This standard is generally known as the Hawaiian Rule, which imposes liability upon the adjoining landowner if the trees, plants, roots, or vines cause harm in ways other than by casting shade or dropping leaves, flowers, or fruit.