Case of the Day – Friday, January 18, 2019

SO WHAT IF YOUR NEIGHBOR BUGS YOU?

You remember that neighbor kid when you were young, the one who was always threatening to tattle to his mother or father about your alleged misdeeds?

All right, you never committed misdeeds. I did, however, and I remember my neighbor Rick, who would run to his parents at the drop of a hat. One July 4th, he told them I was responsible for some shenanigans that resulted in his burning his eyebrows off – I won’t go into details – and I was only saved because I happened to be 500 miles away at summer camp at the time.

Even then, his parents blamed me.

Some people never grow out of that urge to tattle and whine. When they become adults, they like to call the police, complain to the zoning people, and even sue. Many times, they complain about conduct that is legal (or nearly so), but merely bothersome: the neighbor puts her garbage out early, or shovels his walks late or not at all, or never weeds the garden, or parks his truck on the street, or his boat in the yard…

Nuisance is the legal doctrine that lets you bend your neighbor’s conduct to your whims. It is not easy to prove a nuisance, nor should it be. It must be an unreasonable, unwarranted or unlawful use of one’s property, and even then, the use has to annoy, inconvenience or disturb you enough that the law will presume damage.

In today’s case, the neighbor’s stand of trees bugged Chuck Merriam – literally. But swarms of disgusting insects was not enough to convince the court to boss around Chuck’s neighbor for his benefit.

Merriam v. McConnell, 31 Ill.App.2d 241 (Ct.App. Illinois 1961). Charles Merriam and next-door neighbor Jean McConnell lived in a well-populated residential area of Northfield. Jean was growing a large number of box elder trees on her property. As part of the box elder ecosystem, Jean played host to box elder bugs – ugly, black and red, three-quarter inch long insects – that infest the box elders every summer. Swarms of the bugs migrated from the trees to Chuck’s house and yard, endangering his “comfortable and peaceable use and enjoyment” of his residence, impairing the value of his property, and “embarrassing and distressing” his guests. The bugs invade Chuck’s residence and mess the furniture and draperies, which are expensive and time consuming to clean.

Chuck complained to Jean repeatedly, but she was powerless to keep the bugs out unless she cut down the trees, which she was not about to do. Chuck asked for $150.00 in damage (this being 1961) and for an injunction to get rid of the trees.

The trial court dismissed Chuck’s complaint, and he appealed.

Held: Jean’s box elders were not a nuisance, and Chuck had no basis for an injunction against her maintenance and growing of box elder trees or, alternatively, the control of the box elder bugs.

Chuck’s complaint was based on the theory of private nuisance. In general, a private nuisance is an individual wrong arising from an unreasonable, unwarrantable or unlawful use of one’s property producing so much annoyance, inconvenience, discomfort or hurt that the law will presume a consequent damage.

This means that the complaint, in order to be successful, ought to allege facts that justify the inference that the defendants are using their property in an unreasonable, unwarrantable or unlawful way.

The Court cited Michalson v. Nutting for the notion that “an owner of land is at liberty to use his land, and all of it, to grow trees. Their growth naturally and reasonably will be accompanied by the extension of boughs and penetration of roots overhead and into adjoining property of others.” The Michalson court thought it “wiser” to adopt the common law practice of leaving the neighbor to his own protection “if harm results to him from this exercise of another’s right to use his property in a reasonable way, than to subject that other to the annoyance, and the public to the burden of actions at law, which would be likely to be innumerable and, in many instances, purely vexatious.”

The Court noted that no Illinois precedent enjoined the operation of natural forces. Instead, only where “a human agency has intervened in a negligent, careless or willful way to turn the natural creation into a nuisance, as for instance, where cities have polluted natural water courses, or an individual has done so.” The court said

a nuisance cannot arise from the neglect of one to remove that which exists or arises from purely natural causes. But, when the result is traceable to artificial causes, or where the hand of man has, in any essential measure, contributed thereto, the person committing the wrongful act cannot excuse himself from liability upon the ground that natural causes conspired with his act to produce the ill results.

The Court observed that Chuck asked that Jean be forced to take “necessary steps” to limit the bugs to her property. “On its face,” the Court said, “this prayer is obviously impossible. Plaintiff does not suggest how the defendant could limit the bugs to her property. He asks that defendant be restrained from growing box elder trees upon her property. There is nothing unlawful about growing of box elder trees: Jean may grow trees to whatever extent she wishes on her own property. “The fact that box elder bugs may annually infest the trees, in our opinion, does not make the trees a private nuisance nor does the conjunction of the bugs and the trees constitute a private nuisance.”

The law requires that Jean would have to be guilty of some carelessness, negligence or willfulness in bringing, or helping to bring, about a harmful condition in order to entitle Chuck to the relief he sought in his complaint.

The Court concluded:

When a person moves to a wooded suburban area he should know that he is going to a place where nature abounds; where trees add to the pleasure of suburban life; and where the shade of trees, leaves, overreaching branches, roots, squirrels, birds, insects and the countless species of nature tend to disregard property lines. The effects of nature are incidents of suburban living…

We think that reversing the decree before us would probably expose property owners, especially in wooded suburban areas, to much vexation. And, it might result in adding the weight of “clothes-line” disputes, which ought to be settled amicably by neighbors, to the mounting burden of law suits now impeding the administration of justice… Equity should not lend its jurisdiction to the control or abatement of natural forces as though they were nuisances.

– Tom Root

TNLBGray

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