APPELLATE COURT OF ILLINOIS, SECOND DISTRICT
520 N.E.2d 980, 166 Ill. App. 3d 662, 117 Ill. Dec. 629 1988.IL.231
Appeal from the Circuit Court of Du Page County; the Hon. James W. Jerz, Judge, presiding.
JUSTICE DUNN delivered the opinion of the court. HOPF and INGLIS, JJ., concur.
DECISION OF THE COURT DELIVERED BY THE HONORABLE JUDGE DUNN
Plaintiffs, John P. Ridge and Kathleen P. Konicki, sought an order enjoining defendants, William and Lorie Blaha, from damaging an elm tree allegedly growing on the boundary line between their respective properties. The circuit court of Du Page County found that plaintiffs have no protectable interest in the elm and denied the relief sought. After reviewing the record, however, we find that plaintiffs do have a protectable interest in the subject tree, and, accordingly, we now reverse.
Plaintiffs and defendants are neighbors in the Village of Hinsdale, Illinois. Between their houses grows the 60- to 80-foot tall elm tree in question. The tree interrupts a boundary line fence which was installed by defendants. The parties do not know who planted the tree, but it is estimated to be 40 years old.
After coexisting with the elm for many years, defendants eventually tired of what they consider to be the tree's unwanted effects and decided to remove it with the help of Berquist Tree Experts, Inc. Plaintiffs were not consulted in this decision, however, and when Berquist came to remove the tree, plaintiffs objected that the tree belonged to them and that they did not want it destroyed. Plaintiffs called the Hinsdale police, who at first persuaded Berquist to refrain from cutting. Mrs. Blaha then offered to indemnify Berquist if Berquist would remove the tree, so the Berquist crew began their assault. After consulting with the State's Attorney's office, though, the police ordered the Berquist crew to remove itself from the tree or face arrest. When it later appeared that the police and the State's Attorney would be reluctant to further intervene unless plaintiffs obtained injunctive relief, the instant action was filed.
Plaintiffs initially sought a temporary restraining order and a preliminary injunction to prevent defendants from damaging the elm, and on July 18, 1986, a preliminary injunction was issued. Proceedings were continued to August 14, 1986, for resolution of the matter. Plaintiffs filed an amended petition seeking a permanent injunction on August 11, which included a second count pertaining to a honey locust tree whose base was entirely within plaintiffs' property but whose branches extended into defendants' air space. On August 14, a hearing was held on whether to make the preliminary injunction permanent. Although plaintiffs protested that defendants had not yet filed an answer, the court informed plaintiffs that the preliminary injunction would be dissolved that day anyway.
The majority of the testimony at the hearing concerned the elm tree. Plaintiffs testified that the tree shades their property and is aesthetically pleasurable to them, thereby adding to their use and enjoyment of their property. They believe that the tree adds to the value of their property. Additionally, plaintiffs asserted that they bought their house for the mature trees their lot contained. Defendants, on the other hand, testified that the elm drops sap on their cars and property and that its branches interfere with their chimney and television antenna. They claimed that the tree's base had displaced bricks in their walkway leading to puddling in heavy rains, and that the root system made it impossible to maintain plantings near the tree. They also had been told that the roots will eventually harm the foundation of their house.
More importantly, evidence of the tree's location with respect to the boundary line was introduced. Defendants produced a survey which indicated that the base of the tree extends approximately five inches onto plaintiffs' property, but that the tree trunk narrows as it rises so that at a height of 1.25 feet, the trunk is entirely on defendants' side of the line. Photographs were also introduced which depicted the tree interrupting the boundary line fence. At the Conclusion of the hearing, the trial court found that no substantial portion of the elm's trunk extended onto plaintiffs' property and that, as such, plaintiffs did not have a protectable ownership interest in the tree. The court also found that the issues raised concerning the honey locust were moot since that tree had already been trimmed to defendants' satisfaction, and there was no pending danger to that tree. The court dissolved the preliminary injunction, but stayed actions until August 21, 1986. On that date, plaintiffs filed a motion for reconsideration. On September 4, 1986, the motion was denied, but a stay pending appeal was granted.
Plaintiffs argue on appeal that the evidence shows the elm is located on the boundary line and that it is therefore the common property of the adjoining landowners. Defendants, however, have not seen fit to file a brief with this court. Nevertheless, we will not reverse pro forma, but will consider the merits of the appeal under the standards enunciated in First Capitol Mortgage Corp. v. Talandis Construction Corp. (1976), 63 Ill. 2d 128.
As a starting point, it is clear that a boundary line tree may be jointly owned by the adjoining landowners:
"It is the well-established rule that a tree standing on the division line between adjoining proprietors, so that the line passes through the trunk or body of the tree above the surface of the soil, is the common property of both proprietors as tenants ...