Case of the Day – Wednesday, June 27, 2018


Sometimes, state law leaves a landowner suffering from invading roots and branches from a neighbor’s tree with no remedy but a chainsaw. As we all know, the Massachusetts Rule – alive and well in a number of states – lets a property owner trim offending branches and roots up to the property line, but that’s it: no lawsuits, no damage awards, no injunctions, and no meddling lawyers…

Other states follow variants of the Hawaii Rule, and let a property owner sue when a neighboring tree becomes a nuisance, causing “sensible harm,” a weird expression apparently meaning something more than falling leaves and twigs.

Then there’s the Illinois approach: In the Land of Lincoln, a tree near a landowner’s property boundary line was wreaking havoc on a neighbor’s garage. The neighbor asked the tree’s owner to cut it down, but she refused. He sued, but the trial judge dismissed the complaint, saying that the tree was a natural condition, and its owner could not be blamed for its growing (even where the growing was in a direction and of a scale that the neighbor did not like).

The Court of Appeals reversed, saying that the neighbor’s claim that the tree owner was negligent was enough to let the case go forward. And why was the owner negligent? Why, because the neighbor had told her the tree was damaging his garage, and demanded she cut it down.

Remember when you told your mother you wanted to go somewhere or do something because one or more of your friends was going or doing whatever it was. She would respond, “Well, would you go jump off a bridge just because your friends told you to?”

That’s kind of what today’s case says. Tree owner Cris was not negligent because she failed to inspect or maintain or whatever. She was negligent because neighbor Ed told her to cut the tree down, and she wouldn’t.

It’s pretty hard to divine much of a rule from this. It seems to come down to “you’re negligent if your neighbor tells you that you are.” If anything, it suggests that Illinois follows the Hawaii Rule somewhat. At least, it does if your neighbor tells you  about the problem your tree is allegedly causing. If your neighbor remains silent, you remain in the clear.

Ignorance truly is bliss in Illinois.

Chandler v. Larson, 148 Ill.App.3d 1032, 500 N.E.2d 584, 102 Ill.Dec. 691 (Ill.App. 1 Dist. 1986). Ed Chandler and Cris Larson owned adjoining house lots in Evanston, Illinois. Cris had a tree growing just on her side of the boundary between the lots, and over the years, the tree had grown over and onto Ed’s property, with the roots growing against a garage and the leaves growing above the property. As a result, the garage had been damaged from the roots of the tree so that “the foundation has been broken, walls damaged and the roof coming apart”. Ed had asked Cristine to cut down the tree, but she refused. Finally, the garage was so badly damaged that it was unusable.

Ed sued, asking for an injunction requiring Cris to remove the tree, and for money damages.

Cris moved to dismiss the suit, arguing that neither count stated a cause of action. Ed replied that a tree does not constitute a natural condition in a city environment, and that adjoining landowners in urban areas are entitled to reasonable protection from injury through their neighbors’ negligence.

Despite Ed’s several attempts to amend the suit, the trial court agreed with Cris and dismissed the action.

Ed appealed.

Held: Ed’s lawsuit could go forward against Cris.

The court of appeals said the primary issue was whether an urban landowner can sue a neighbor for negligence where damages to property result from the growth of roots of a tree which is located on the neighbor’s property.

The Court looked at prior Illinois tree cases, and concluded those decisions suggested that the ordinary rules as to negligence should apply generally to natural conditions, at least in urban and residential areas. The proper inquiry, the Court said, would focus upon such factors as the nature of the locality, the seriousness of the danger, and the ease with which it may be prevented, in the light of all the circumstances.

In Bandy v. Bosie, an Illinois trial court addressed a suit between two adjoining owners of city lots. In that case, the plaintiff complained that some maple and elm trees on defendant’s lot dropped sap and leaves on plaintiff’s property, and the trees’ roots had damaged a sewer line, causing water to back up in plaintiff’s basement. Like Ed, the Plaintiff sought injunctive relief and damages. The appellate court held that trees that dropped leaves on neighboring lands or sent out roots which had migrated to neighboring lands causing a drainage obstruction did not necessarily constitute a nuisance. There was no allegation that the trees constituted a danger or that they were negligently maintained. The appellate court upheld dismissal of the Bandy case.

In this case, however, Ed said that Cris had been negligent, alleging that he had placed Cristine on notice that her tree roots were damaging his garage. Owners of urban property, the Court held, owe adjoining landowners (such as Ed) a duty of reasonable care. “That duty would necessarily include the taking of reasonable steps to prevent damage to [Ed’s] garage caused by the roots of one of [Cris’s] trees,” the Court held. Ed’s amended complaint stated a cause of action for negligence, and should not have been dismissed.

– Tom Root


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