{ "id": 3644198, "name": "EDWARD CHANDLER, Plaintiff-Appellant, v. M. CRISTINE LARSON et al., Defendants (Ann Larson, Defendant-Appellee)", "name_abbreviation": "Chandler v. Larson", "decision_date": "1986-10-30", "docket_number": "No. 86\u20140117", "first_page": "1032", "last_page": "1038", "citations": [ { "type": "official", "cite": "148 Ill. App. 3d 1032" } ], "court": { "name_abbreviation": "Ill. App. Ct.", "id": 8837, "name": "Illinois Appellate Court" }, "jurisdiction": { "id": 29, "name_long": "Illinois", "name": "Ill." }, "cites_to": [ { "cite": "477 N.E.2d 840", "category": "reporters:state_regional", "reporter": "N.E.2d", "weight": 2, "opinion_index": 0 }, { "cite": "132 Ill. App. 3d 832", "category": "reporters:state", "reporter": "Ill. App. 3d", "case_ids": [ 3441652 ], "weight": 2, "pin_cites": [ { "page": "834" } ], "opinion_index": 0, "case_paths": [ "/ill-app-3d/132/0832-01" ] }, { "cite": "166 A. 2d 743", "category": "reporters:state_regional", "reporter": "A.2d", "case_ids": [ 8122566 ], "opinion_index": 0, "case_paths": [ "/a2d/166/0743-01" ] }, { "cite": "340 A.2d 566", "category": "reporters:state_regional", "reporter": "A.2d", "year": 1961, "opinion_index": 0 }, { "cite": "236 Pa. Super. 75", "category": "reporters:state", "reporter": "Pa. Super.", "case_ids": [ 6770396 ], "year": 1961, "opinion_index": 0, "case_paths": [ "/pa-super/236/0075-01" ] }, { "cite": "390 N.E.2d 523", "category": "reporters:state_regional", "reporter": "N.E.2d", "weight": 3, "opinion_index": 0 }, { "cite": "71 Ill. App. 3d 691", "category": "reporters:state", "reporter": "Ill. App. 3d", "case_ids": [ 5580416 ], "weight": 3, "pin_cites": [ { "page": "692-93" } ], "opinion_index": 0, "case_paths": [ "/ill-app-3d/71/0691-01" ] }, { "cite": "175 N.E. 490", "category": "reporters:state_regional", "reporter": "N.E.", "opinion_index": 0 }, { "cite": "275 Mass. 235", "category": "reporters:state", "reporter": "Mass.", "case_ids": [ 3829635 ], "opinion_index": 0, "case_paths": [ "/mass/275/0235-01" ] }, { "cite": "175 N.E.2d 293", "category": "reporters:state_regional", "reporter": "N.E.2d", "weight": 4, "opinion_index": 0 }, { "cite": "31 Ill. App. 2d 241", "category": "reporters:state", "reporter": "Ill. App. 2d", "case_ids": [ 5228357 ], "weight": 4, "pin_cites": [ { "page": "245-48" }, { "page": "247-48" } ], "opinion_index": 0, "case_paths": [ "/ill-app-2d/31/0241-01" ] } ], "analysis": { "cardinality": 709, "char_count": 15254, "ocr_confidence": 0.767, "pagerank": { "raw": 8.437762864041503e-08, "percentile": 0.4844952350503832 }, "sha256": "56d1f3659e8a178dba38095721e986df8d5219646fe8933c297054148d7e67c8", "simhash": "1:25e1d42c184edc5f", "word_count": 2470 }, "last_updated": "2023-07-14T16:17:24.109479+00:00", "provenance": { "date_added": "2019-08-29", "source": "Harvard", "batch": "2018" }, "casebody": { "judges": [], "parties": [ "EDWARD CHANDLER, Plaintiff-Appellant, v. M. CRISTINE LARSON et al., Defendants (Ann Larson, Defendant-Appellee)." ], "opinions": [ { "text": "PRESIDING JUSTICE LINN\ndelivered the opinion of the court:\nThe plaintiff, Edward Chandler, filed suit against M. Cristine Larson, Thomas W. Larson (hereafter called codefendants) and Ann Larson (hereafter defendant) for damages to plaintiff\u2019s garage, which were allegedly caused by the roots of a tree growing on adjacent property owned by defendant and codefendants. Plaintiff\u2019s original complaint sought injunctive relief and damages. Plaintiff then filed an amended complaint, which alleged that defendant and codefendants had been negligent in failing and refusing to take reasonable steps to control the growth of the tree and its roots. Subsequently, defendant filed a motion to dismiss pursuant to section 2 \u2014 615 of the Code of Civil Procedure (Ill. Rev. Stat. 1983, ch. 110, par. 2 \u2014 615). After a hearing, that motion to dismiss was granted. Subsequently, plaintiff filed a motion to vacate, which was denied by the trial court.\nBackground\nPlaintiff\u2019s complaint was filed on November 7, 1984. Count one alleged that plaintiff was the owner of certain real estate located at 2718 Ewing in Evanston; that defendant was the owner of the real estate located at 2714 Ewing; that the real estate owned by defendant is immediately adjacent to and south of plaintiff\u2019s property; that on the north border of defendant\u2019s real estate toward the western rear of the property, defendant had a tree which for some time had been growing over and onto the plaintiff\u2019s property with the roots growing under the plaintiff\u2019s property and in particular plaintiff\u2019s garage and the leaves growing above plaintiff\u2019s property; that as a consequence of the growth of that tree plaintiff\u2019s garage had been severely and greatly damaged from the roots of the tree so that \u201cthe foundation has been broken, walls damaged and the roof coming apart\u201d; that plaintiff had made demands and requests upon defendant to tear down and destroy the tree to prevent further damage to plaintiff\u2019s garage and other properties, but defendant had failed and refused to uproot the tree; that as a proximate result of the foregoing, plaintiff\u2019s garage has been rendered unusable for the purpose of storing his car and other personal belongings; and that the growth of defendant\u2019s tree has had an adverse effect upon plaintiff\u2019s property and resulted in great and irreparable injury and damage to plaintiff for which pecuniary compensation would not afford adequate relief.\nCount I then requested a mandatory injunction requiring defendant to remove the tree with its roots.\nCount II realleged the allegations of count I and also stated that, as a consequence of the foregoing actions by defendants, plaintiff has suffered great pecuniary damages. Count II then requested a judgment for compensatory damages.\nOn December 14, 1984, defendant filed a motion to dismiss both counts of plaintiff\u2019s complaint. In that motion defendant contended that neither count allegedly stated a cause of action in law or equity. On February 14, 1985, plaintiff filed a memorandum in response to defendant\u2019s motion to dismiss. In that memorandum plaintiff argued primarily that a tree does not constitute a natural condition in a city environment and that adjoining land owners in urban areas are entitled to reasonable protection from injury through negligence. After a hearing on February 28, 1985, count I was dismissed with prejudice. In addition, count II was stricken with leave to file an amended complaint.\nOn March 27, 1985, plaintiff filed an amended complaint for damages. That complaint reasserted the allegations in the original complaint. In addition, the new complaint asserted:\n\u201c7. Plaintiff has made demands and requests upon defendants to take reasonable steps to stop the continuing damage to plaintiff\u2019s property, including requests to tear down and destroy the tree, where the roots encroach into plaintiff\u2019s property, to prevent further damage to the garage and property of the plaintiff, but defendants have failed and refused, and still refuse to take any steps within their control, including action to uproot the tree or its roots which has damaged, is damaging and continues to damage plaintiff\u2019s garage.\n8. Defendants have a duty to plaintiff to exercise reasonable care to prevent an unreasonable harm and injury in maintaining trees on defendants\u2019 land.\n9. Defendants have acted unreasonably and negligently in maintaining their property.\n10. As the proximate result of the foregoing, plaintiff\u2019s garage has been rendered unusable for the purposes for which it was intended, to wit, to store his car and other personal belongings.\n11. As a consequence of the foregoing, and as the proximate cause of the actions of defendants, plaintiff has suffered and continues to suffer great pecuniary damages.\u201d\nOn April 26, 1985, defendant filed a second motion to dismiss pursuant to section 2 \u2014 615 of the Code of Civil Procedure. That motion alleged that the amended complaint was identical to the original complaint except that it had added the above-described allegations. Defendant then argued that whether or not she had negligently permitted the roots of her tree to grow was in no way \u2014 factually or qualitatively \u2014 different than the plaintiffs previously stated allegations that she had \u201crefused\u201d to tear down and destroy the tree to prevent damage to plaintiff\u2019s garage.\nThe motion to dismiss further alleged that plaintiff was attempting to reargue the original motion to dismiss upon which the court had previously ruled. In addition, the motion also asserted that plaintiff, who had dropped his claim for injunctive relief, expected that this matter would be transferred to the law division, where the motion could be reargued before a different judge.\nPlaintiff filed another memorandum in response to defendant\u2019s motion to dismiss, which realleged that defendant and codefendants had been negligent in failing to maintain the tree on their property. After a hearing on the motion to dismiss on September 26, 1985, the trial court struck plaintiff\u2019s amended complaint for failure to state a cause of action. That dismissal was with prejudice. Plaintiff then filed a motion to vacate the dismissal, which was denied.\nOpinion\nOn appeal, plaintiff contends that his complaint stated a valid cause of action against defendant for negligent maintenance of the tree.\nThe primary issue therefore is whether an urban landowner can state a cause of action for negligence where damages to his property result from the growth of roots of a tree which is located on the defendant\u2019s adjoining property.\nIn Merriam v. McConnell (1961), 31 Ill. App. 2d 241, 175 N.E.2d 293, the plaintiff sought an injunction to restrain defendants from growing box elder trees since those trees, on a yearly basis, became infested with box elder bugs which migrated to plaintiff\u2019s property. In Merriam, this court found that the entire problem was one of natural origin and, because of this, it concluded that equity could not be used to control or abate natural forces as if they were a nuisance. However, in Merriam, the plaintiff did not allege negligent conduct on the part of defendants. In addition, the Merriam court cited with approval the Massachusetts case of Michalson v. Nutting (1931), 275 Mass. 235, 175 N.E. 490, where the court held 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. Because of this, the Massachusetts court dismissed the suit for an injunction where roots had clogged the sewer of an adjoining landowner. (Merriam v. McConnell (1961), 31 Ill. App. 2d 241, 245-48, 175 N.E.2d 293.) That court stated:\n\u201cThe law is that defendants themselves 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 plaintiff to the relief sought in this particular prayer. The complaint does not allege that they were guilty in any of these ways.\n*** 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. * * *\n* * *\nWe conclude that equity should not lend its jurisdiction to the control or abatement of natural forces as though they were nuisances.\u201d 31 Ill. App. 2d 241, 247-48, 175 N.E.2d 293.\nIn Mahurin v. Lockhart (1979), 71 Ill. App. 3d 691, 390 N.E.2d 523, the plaintiff sued an adjoining lot owner for damages resulting when a dead limb on a tree on defendant\u2019s property fell on plaintiff\u2019s property, striking plaintiff and injuring him. This court held that the complaint stated a cause of action. In that case, defendant had contended that she had no liability for damages occurring to nearby property that resulted from the existence of natural conditions on her land. This court rejected that view as being outdated. The court stated:\n\u201cThe traditional rule of nonliability developed at a time when land was mostly unsettled and uncultivated. The landowner, unable to keep a daily account of and remedy all of the dangerous conditions arising out of purely natural causes, was therefore shielded from liability out of necessity. (Prosser, Torts sec. 57, at 354-56 (4th ed. 1971).) While there are many reasons to continue the traditional rule in regions that are largely rural, there is little or no reason to apply it in urban and other developed areas. In urban centers, it would not be unduly burdensome for a small property owner to inspect his property and take reasonable precautions against dangerous natural conditions. The American Law Institute recognized the reasons for different treatment in urban and rural areas, but did not extend the greater duty that possessors of urban property owe to persons using the highways to adjoining landowners. We, however, believe there is no reason to so restrict the landowner\u2019s duty and hold that a landowner in a residential or urban area has a duty to others outside of his land to exercise reasonable care to prevent an unreasonable risk of harm arising from defective or unsound trees on the premises, including trees of purely natural origin.\u201d 71 Ill. App. 3d 691, 692-93, 390 N.E.2d 523.\nThe Mahurin opinion is in agreement with the trend to place greater responsibility upon the owner of the property where the tree is located. Several decisions establishing that trend are as follows: Barker v. Brown (1975), 236 Pa. Super. 75, 340 A.2d 566, and Dudley v. Meadowbrook, Inc. (D.C. App. 1961), 166 A. 2d 743. As stated by Prosser:\n\u201cIt 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. The tree cases may suggest that the ordinary rules as to negligence should apply generally to natural conditions, at least in urban and residential areas, so that the inquiry 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.\u201d W. Prosser & W. Keeton, Torts sec. 57, at 391 (5th ed. 1984).\nBandy v. Bosie (1985), 132 Ill. App. 3d 832, 477 N.E.2d 840, also involved a suit between two adjoining owners of city lots. In that case the complaint alleged: (1) that plaintiffs and defendant owned adjoining city lots; (2) that certain maple and elm trees on defendant\u2019s lot dropped sap and leaves on plaintiffs\u2019 property, and roots from these trees had entered and damaged plaintiffs\u2019 sewer line, causing water to back up in their basement; and (3) that the foregoing had caused plaintiffs substantial expenditures and had caused irreparable damage to plaintiffs\u2019 sewer line. Plaintiffs sought injunctive relief and damages. Subsequently, the circuit court allowed defendant\u2019s motion to dismiss counts I and II for failure to state a cause of action. After the trial court made a finding pursuant to Supreme Court Rule 304(a) (87 Ill. 2d R. 304), plaintiff appealed.\nThis court analyzed its previous decisions in Merriam v. McConnell (1961), 31 Ill. App. 2d 241, 175 N.E.2d 293 and Mahurin v. Lockhart (1979), 71 Ill. App. 3d 691, 390 N.E.2d 523 and then stated that it did not feel that trees that dropped leaves on neighboring lands or trees that had sent out roots which had migrated to neighboring lands causing a drainage obstruction necessarily constituted a nuisance. In addition, this court pointed out that there was no allegation that the trees constituted a danger or that they were negligently maintained. The appellate court then affirmed the trial court\u2019s decision to dismiss the injunction counts for failure to state a cause of action. Bandy v. Bosie (1985), 132 Ill. App. 3d 832, 834, 477 N.E.2d 840.\nIn the present case, we have two adjoining owners of city lots, and consequently, the Merriam decision would not be directly applicable. Moreover, unlike Bandy, plaintiff here made an allegation of negligence on the part of defendant. These facts and our review of the record on appeal lead us to the conclusion that the present matter is most analogous to the factual situation in Mahurin v. Lockhart. Plaintiff\u2019s amended complaint alleged that plaintiff had placed defendant on notice that the roots from defendant\u2019s tree were causing considerable damage to plaintiff\u2019s garage. The complaint further alleged that, although defendant had received such notice, she continued to refuse to uproot the tree or to use other methods which would prevent further harm and injury to plaintiff\u2019s garage. As an owner of urban property, defendant owes adjoining landowners, such as plaintiff, a duty of reasonable care. That duty would necessarily include the taking of reasonable steps to prevent damage to plaintiff\u2019s garage caused by the roots of one of defendant\u2019s trees. Under such circumstances, we are of the opinion that plaintiff\u2019s amended complaint stated a good cause of action for negligence. Accordingly, the trial court erred when it dismissed that complaint.\nFor the reasons stated above, the order of the circuit court which dismissed plaintiff\u2019s amended complaint with prejudice is reversed and the cause is remanded for further proceedings.\nReversed and remanded.\nJOHNSON and McMORROW, JJ., concur.\nThe codefendants were not served with process and are not parties to this appeal.", "type": "majority", "author": "PRESIDING JUSTICE LINN" } ], "attorneys": [ "Berman, Roberts & Kelly, of Chicago (Edward A. Berman, of counsel), for appellant.", "Clifford P. Mallon, of Chicago (Robert Guilfoyle, of counsel), for appel-lee." ], "corrections": "", "head_matter": "EDWARD CHANDLER, Plaintiff-Appellant, v. M. CRISTINE LARSON et al., Defendants (Ann Larson, Defendant-Appellee).\nFirst District (4th Division)\nNo. 86\u20140117\nOpinion filed October 30, 1986.\nBerman, Roberts & Kelly, of Chicago (Edward A. Berman, of counsel), for appellant.\nClifford P. Mallon, of Chicago (Robert Guilfoyle, of counsel), for appel-lee." }, "file_name": "1032-01", "first_page_order": 1054, "last_page_order": 1060 }