Iny v Collum
Annotate this CaseDecided on July 20, 2004
District Court of Nassau County, Fourth District
Sol Iny, Plaintiff
against
Robert Collum, Defendant
SCF01060/04
Sol Iny, plaintiff pro se. Robert Collum, defendant pro se.
Martin J. Massell, J.
The within small claims action was tried before this Court on July 7, 2004.
Before the Court is a claim by the plaintiff SOL INY against the defendant ROBERT COLLUM to recover for damages to his property in the amount of $2,100 caused by the roots of defendant's tree. Defendant has interposed a counterclaim for harassment against plaintiff in the amount of $500.00.
It was established on the trial that plaintiff and defendant share a common rear property line, and that growing on defendant's property is a large tree adjacent to the rear of plaintiff's garage. Plaintiff claims that the tree's roots extend into plaintiff's yard and has caused the back wall of his garage to crack. Plaintiff made a number of attempts to have defendant remove the tree and offered to absorb the cost of such removal. To this end, plaintiff attempted to speak with defendant and also mailed to him a number of letters, dated September 24, 2003, October 7, 2003 and October 19, 2003, all of which letters were offered into evidence. Also offered into evidence were four photographs taken by plaintiff of the defendant's tree and the crack in the rear wall of plaintiff's garage. Defendant does not deny plaintiff's offers, but testified that he advised plaintiff that he had no intention of taking down his tree, claiming that it was a healthy black walnut tree. He characterized plaintiff's verbal and written requests as harassment, and counter-claimed for $500.00 for such. Defendant also contends that plaintiff's garage is in a delapidated condition, and offered a photograph of his tree to show that it had been pruned on his side of the property line, but that defendant had done nothing to prune the tree on his side of the property line.
Plaintiff's action is based upon the theory of "private nuisance", the essence of which is interference with the use and enjoyment of land amounting to an injury in relation to a right of ownership in that land. ( Kavanagh v Barber, 131 NY 211 [1892]; Mandell v Pivnick, 20 Conn Supp 99 [1956]. The cases are in agreement that for a normal tree to be considered a "nuisance" it must be decayed or otherwise dangerously unsound. (Gibson v Denton, 4 A.D. 198; 38 N.Y.S. 554 [3rd Dept. 1896]) ) Since there was no testimony that the tree in this case is decayed or otherwise dangerously unsound (it was identified by defendant as a healthy black walnut tree) it is not a nuisance per se (Countryman v. Lighthill, 24 Hun 405). Plaintiff alleges, however, that the encroaching roots of defendant's tree have caused extensive damage to the structure of his garage, which would categorize the condition to be a "private nuisance".
New York case law has set forth that a plaintiff must resort to "self help" in the first instance that is, cutting back the offending overhanging branches or encroaching tree roots before instituting a law suit against the owner of the tree. However, the vast majority of these cases apply to problems with overhanging branches, not tree roots.
In the case of Norwood v. City of New York, 95 Misc. 2d 55; 406 N.Y.S.2d 256
(New York City Civil Court, Queens County June 21, 1978) the Court stated:
"It is the determination of the court that it would not be realistic to limit a landowner to a right to dig for and cut roots. While such a limitation upon the rights of a landowner may be proper with respect to overhanging branches of a tree (see Countryman v Lighthill, 24 Hun 405), such a limitation would be manifestly unfair to a landowner whose property may be directly injured by the effect of spreading roots. Unlike branches which are readily visible and which may often be cut without great difficulty, roots are not generally visible and may require considerable digging in order to remove them. Indeed, the [*2]landowner will usually not know that he has reason to cut roots until damage has occurred."
In reviewing the photographs entered into evidence and listening to the testimony of the parties to this law suit, it is apparent that plaintiff's garage is only one foot from his rear property line and that area has been utilized by the defendant. It would be almost impossible for plaintiff to remain on his property and cut out the offending roots, if they were visible to him.
Therefore, the court finds that defendant is liable to plaintiff for damages caused to plaintiff's garage by the roots of defendant's tree and that, based upon the evidence presented, the reasonable cost to repair the damage, amounted to $2,100.00. The court directs judgment in favor of the plaintiff against the defendant for $2,100.00. Defendant's counterclaim is dismissed as it fails to rise to the legal level of "harrassment."
So Ordered.
DATE: July 20, 2004
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