Appeal from the Circuit Court of Cook County; the Hon. Odas
Nicholson, Judge, presiding.
PRESIDING JUSTICE LINN DELIVERED THE OPINION OF THE COURT:
The plaintiff, Edward Chandler, filed suit against M. Cristine Larson, Thomas W. Larson (hereafter called co-defendants) and Ann Larson (hereafter defendant) for damages to plaintiff's garage, which were allegedly caused by the roots of a tree growing on adjacent property owned by defendant and co-defendants. Plaintiff's original complaint sought injunctive relief and damages. Plaintiff then filed an amended complaint, which alleged that defendant and co-defendants 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 2-615 of the Code of Civil Procedure (Ill. Rev. Stat. 1983, ch. 110, par. 2-615). *fn1 After a hearing, that motion to dismiss was granted. Subsequently, plaintiff filed a motion to vacate, which was denied by the trial court.
Plaintiff's 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's property; that on the north border of defendant's 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's property with the roots growing under the plaintiff's property and in particular plaintiff's garage and the leaves growing above plaintiff's property; 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"; that plaintiff had made demands and requests upon defendant to tear down and destroy the tree to prevent further damage to plaintiff's garage and other properties, but defendant had failed and refused to uproot the tree; that as a proximate result of the foregoing, plaintiff's garage has been rendered unusable for the purpose of storing his car and other personal belongings; and that the growth of defendant's tree has had an adverse effect upon plaintiff's property and resulted in great and irreparable injury and damage to plaintiff for which pecuniary compensation would not afford adequate relief.
Count I then requested a mandatory injunction requiring defendant to remove the tree with its roots.
Count 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.
On December 14, 1984, defendant filed a motion to dismiss both counts of plaintiff's 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's 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.
On 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:
"7. Plaintiff has made demands and requests upon defendants to take reasonable steps to stop the continuing damage to plaintiff's property, including requests to tear down and destroy the tree, where the roots encroach into plaintiff's 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's garage.
8. Defendants have a duty to plaintiff to exercise reasonable care to prevent an unreasonable harm and injury in maintaining trees on defendants' land.
9. Defendants have acted unreasonably and negligently in maintaining their property.
10. As the proximate result of the foregoing, plaintiff's garage has been rendered unusable for the purposes for which it was intended, to wit, to store his car and other personal belongings.
11. 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."
On April 26, 1985, defendant filed a second motion to dismiss pursuant to section 2-615 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 factually or qualitatively different than the plaintiff's previously ...