Merriam v. McConnell

• Decision Date: 10 April 1961
• Docket Number: Gen. No. 48181
• Citation: 31 Ill.App.2d 241,175 N.E.2d 293
• Parties: , 83 A.L.R.2d 931 Charles J. MERRIAM, Plaintiff-Appellant, v. Jean McCONNELL, Defendant-Appellee.
• Court: United States Appellate Court of Illinois

Page 293

175 N.E.2d 293

31 Ill.App.2d 241, 83 A.L.R.2d 931

Charles J. MERRIAM, Plaintiff-Appellant, v. Jean McCONNELL, Defendant-Appellee.

Gen. No. 48181.

Appellate Court of Illinois, First District, First Division.

April 10, 1961.

Rehearing Denied April 28, 1961.

Robert J. Downing, Estelle Linn, Chicago, for appellant.

Graham & McElligott, Chicago, for appellee.

KILEY, Presiding Justice.

Plaintiff sued for a permanent injunction to restrain defendants from 'maintaining and growing * * * box elder trees which annually host and are infested by box elder bugs, or by otherwise controlling such vermin so as to limit them to defendants' premises.' The trial court dismissed the cause and plaintiff has appealed.

The motion admitted the well pleaded facts: Plaintiff and defendants own and reside on adjoining properties in a well-populated residential area of Northfield. Defendants 'maintain and grow' on their property a large number of box elder trees. The ugly, black and red, three-quarter inch long bugs each year infest the 'host' trees in great numbers. They migrate from the trees to plaintiff's dwelling, endangering his 'confortable and peaceable use and enjoyment,' and impairing the value, of his property, and 'embarrassing and distressing' his guests. The bugs invade plaintiff's home and soil the furnishings, which he must expend money to clean, repair and replace. Plaintiff has complained to defendants several times without effect, has suffered at least $150 damages, and similar damage will probably occur annually unless the injunction issues.

Defendants' motion to dismiss was on the ground that the court had no jurisdiction, since the State Department of Agriculture is the sole authority to deal with the alleged nuisance and provides an administrative remedy for abatement.

A preliminary question has been raised: Are defendants limited to the jurisdictional, and sole, ground of their motion to dismiss?

Defendants, as appellees, may sustain the decree of dismissal 'by any argument and upon any basis, appearing in the record, which shows that the decree is right, even if [they] had not previously advanced such argument.' Becker v. Billings, 1922, 304 Ill. 190, 205, 136 N.E. 581, 587; 222 East Chestnut St. Corp. v. Murphy, 1945, 325 Ill.App. 392, 399-400, 60 N.E.2d 450. Defendants are entitled, therefore, to argue on appeal the vital question whether the complaint, in the record, states a cause of action of which equity will take jurisdiction.

In deciding this question of the sufficiency of a complaint before verdict or judgment, we construe the complaint strongly against plaintiff, giving him the benefit of the true meaning of the language used. Field v. Oberwortmann, 1957, 14 Ill.App.2d 218, 144 N.e.2d 637.

Plaintiff's prayer is based on the theory of a private nuisance. In general, a private nuisance is an individual wrong arising from an unreasonable, unwarrantable or unlawful use of one's property producing 'such material annoyance, inconvenience, discomfort, or hurt that the law will presume a consequent damage.' Gardner v. International Shoe Co., 1943, 319 Ill.App. 416, 433, 49 N.E.2d 328, 335. The complaint, therefore, should allege facts which justify the inference that defendants used their property in an 'unreasonable, unwarrantable or unlawful' way.

In Bliss v. Ball, 1868, 99 Mass. 597, the Supreme Court of Massachusetts decided that the 'shade of a tree' making defendant's house damp and unhealthy was damnum absque injuria. In Michalson v. Nutting, 1931, 275 Mass. 235, 175 N.E. 490, 76 A.L.R. 1109, roots of trees on defendant's property clogged plaintiff's sewers and cracked cement in the cellar. The Supreme Judicial Court of Massachusetts affirmed a decree dismissing the suit for injunction on the 'principle,' applied from the Bliss case, 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 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 vexations.'

In Gardner v. International Shoe Co., 1943, 319 Ill.App. 416, 433, 49 N.E.2d 328, affirmed, 1944, 386 Ill. 418, 54 N.E.2d 482, the court reversed several judgments for damages alleged to result from operation of a tennery. It stated that the cases, deciding upon alleged nuisances in the operation of businesses, consider the burdens necessarily incident to life in urban and industrial communities where the air is filled with unavoidable, unpleasant odors in the conduct of business which are a necessary incident of life therein. The court adverted to the consequences of sustaining the judgment in a case like that before them: the industrial world would be exposed to litigation, 'the extent of which ones imagination toils in vain to comprehend.'

No Illinois case has been cited nor have we found one in which courts have enjoined the operation of natural forces. In all cases we have read, plaintiffs have recovered damages, or defendants have been enjoined, 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, Cook v. City of Du Quoin, 1930, 256 Ill.App. 452; Eckart v. City of Belleville, 1938, 294 Ill.App. 144, 133 N.E.2d 641 or an individual has done so. Wineland ex rel. Abeln v. M. Huber, Inc., 1934, 275 Ill.App. 264. This is the view expressed in 1 Wood, Nuisances 148-49 (3d ed. 1893):

'In order to create a legal nuisance, the act of man must have contributed to its existence. Ill results, however extensive or serious, the flow from natural causes, cannot become a nuisance, even though the person upon whose premises the cause exists could remove it with little trouble and expense.

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'Thus it will be seen that 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...