New York Real Estate Lawyer Blog

In today's ever concentrating society, where we live in close proximity to one another, I was wondering whether citizens in our communities ever considered the chiming of church bells and the blaring of fire horns to be a "nuisance," and whether they ever sought to quite these things we hear every day. Here are some cases.

CHURCH BELLS

Langan v. Bellinger, 203 A.D.2d 857, 611 N.Y.S.2d 59 (3rd Dept. 1994)

In Langan, residents living twenty fifty (250) feet from church brought a nuisance claim against church to prevent hourly ringing of bells between 8a and 8p and presentation of carillon concerts at 12p and 6p. Among evidence presented, an acoustical expert testified that the church bells made no more noise than passing automobiles and affidavits from fifteen community residents stated the church bells were pleasant. Additionally, the village mayor and village attorney established there was no violation of an ordinance. The court granted the defendant’s motion for summary judgment because residents had failed to allege that the bell ringing and presentation of carillon concerts was an interference that was either substantial in nature or unreasonable in character particularly failing to present objective evidence that either rebutted opinion of defendant’s expert or to demonstrate that the music and chimes constituted nuisance.

Remember: whether the interference is "substantial in nature" or "unreasonable in character" are two tests for nuisance in New York.

Impellizerri v. Jamesville Federated Church, 428 N.Y.S.2d 550 (1979)

In Impellizerri, residents brought a nuisance claim against church to prevent ringing of church bells three times a day and four times on Sundays of approximately four minutes each time. Residents argued that the volume of the bells affected their son who had a neurological disease and that he suffered heightened migraine headaches and muscle spasms as a result of the church bells. The court dismissed residents motion for injunction reasoning that although residents had special circumstances, ringing of church bells did not amount to a nuisance because ringing would not have produced an unwanted effect on an ordinary person in the same circumstances.

FIRE ALARMS

Fire bells are generally not a nuisance. See Van de Vere v. Kansas City, 107 Mo. 83, 17 S.W. 695 (1891) (ruling a lot owner cannot have a city enjoined from erecting a fire engine house on an adjacent lot on the ground that fire bells constitute a nuisance and would depreciate the value of his property). Although the operation of a municipal fire alarm system may constitute a nuisance, fire bells are not an actionable nuisance in light of the public’s need to be protected from fire and other injuries. Malhame v. Borough of Demarest, 162 N.J. 248 (1978) (articulating that if operation of present fire alarm system and certain sound levels in some locations in borough were an actionable nuisance, then continued maintenance of that nuisance would be patently unreasonable and would constitute an abuse of discretion).

So you go out one day and find that your neighbor has cut down your tree. What are your responsibilities, your rights when such tree has been removed illegally. Notwithstanding the fact that many municipalities have tree ordinances of varying types, the removal of trees on another's land is illegal.

The question of whether to bring suit often turns on the question of whether the damages are sufficient to warrant a lawsuit. Was that tree your favorite Black Cherry. Indeed, the type and extent of the damages varies by statute, often determining whether the landowner brings suit in New York. For example, under New York's Real Property Actions and Proceedings Law, RPAPL § 861, a landowner may seek treble or triple damages for the improper removal or cutting of a tree. That, three times the stumpage value of the tree, or $250, or both in addition to any permanent and substantial damage caused to the land if any person removes or attempts to remove any tree without consent.

Other actions that may be brought for injury to property include arguing there was a trespass of land. In Western New York Land Conservancy, Inc. v. Cullen, 886 N.Y.S.2d 303 (4th Dep’t 2009), the plaintiff-landowner sought treble stumpage value for tree damage to its property in a trespass action against the adjoining landowner. The court ruled that the plaintiff was not entitled to treble damages because he had failed to present evidence establishing stumpage value, and, instead, presented evidence of restoration costs. If the plaintiff in this case had presented credible evidence establishing stumpage value, the court would have likely awarded treble damages.

Landowners may also file an action for negligence or nuisance under well established law in New York. Damages in such actions for negligence or nuisance, however, will likely be limited to compensatory damages – or damages flowing from the injury and harm the defendant caused – rather than treble or punitive damages. For all claims to recover for injury to property, the Statute of Limitations is three years.

If there is an illegal removal of trees in a critical environmental zone, the Department of Environmental Conservation (DEC) should be notified. Notifying the DEC will inform the agency of the situation and whether any relevant parties are in compliance with environmental laws and permits. If the illegal tree removal involved state land, the guilty party may be liable for a civil penalty or treble damages, or both.

Bottom Line-- you are not without rights against the party who illegally cuts the trees in New York. The municipality, the neighbor and the DEC might all have claims, including compensatory damages and treble damages.