Wilson v. Simmons

• Decision Date: 23 May 1896
• Parties: WILSON v. SIMMONS, Street Commissioner.
• Court: Maine Supreme Court

36 A. 380

89 Me. 242

WILSON

v. SIMMONS, Street Commissioner.

Supreme Judicial Court of Maine.

May 23, 1896.

(Official.)

Report from supreme judicial court, Knox county.

Trespass q. c. t. by Delana A. Wilson against Franz M. Simmons, street commissioner. There was a verdict for defendant, and plaintiff excepts. Submitted on report. Exceptions overruled. Judgment for defendant.

The defendant justified his act as road commissioner of Rockland, alleging that the trees were within the located limits of the highway. The plaintiff's deed, dated in 1838, bounds her premises on the street or road; and, although the road is an ancient highway, no record of its laying out could be found prior to a record, dated in 1889, and called the "Road as Laid Out under Rose's Survey." There being no record or monuments to define or indicate the location of the street, other than the buildings or fences along the side thereof, the city, in 1889, proceeded to locate and establish a street or way there as required by law. By such location, as appeared, some three or four feet in width of plaintiff's land, inside of the fences, which had existed in front of the plaintiff's premises for more than 20 years, were taken; but nothing had been done by way of actually entering upon the land, from the time of the location, until the defendant entered upon it in 1894.

The case was submitted to the jury upon the assumption that such laying out, in 1889, was sufficient and legal as a proposition of defense against the plaintiff's claim; and, upon that assumption, a verdict was rendered for the defendant. It was admitted that, if such laying out was not valid and sufficient as a defense to this action, there would be no defense against the action, inasmuch as the trees, etc., removed would in such case be found to have been situated outside of the limits of the road, and inside of the plaintiff's close, as held by her through her fences for more than 40 years of adverse possession.

It was agreed by the parties, at the suggestion of the court, that the jury should find what the damages of the plaintiff were, assuming that such laying out in 1888 was not sufficient and valid as a defense against the plaintiff's claim; and the jury found, specially, that such damages would be the sum of $575.08.

And the ease was reported to the full court for their opinion whether such laying out, in 1889, was or not a sufficient and legal proceeding, such as would be a defense to the action.

If the court should be of opinion that the proceedings in laying out the way, in 1889, were not sufficient and legal to constitute a new highway, then, by the agreement of parties, the verdict in favor of the defendant was to be set aside, and a judgment entered against the defendant, in favor of the plaintiff, for the sum of $575.08, as ascertained by the special finding. But if the court, on the contrary, found such proceedings were sufficient and legal, then the verdict in favor of the defendant was to stand, unless set aside and a new trial granted for some erroneous ruling of the justice presiding, stated in the exceptions taken by the plaintiff.

Exceptions: The plaintiff claimed the right to show, by evidence, that the removal of the trees was not necessary for the good of the public travel, and offered evidence intended to be bearing on that point; and whatever is contained in the following colloquy between counsel and court will exhibit such rulings and requests and refusals as were made on the subject:

"Testimony of James Hull: After leaving Holmes street, on which side of Main street is nearly all the residences and population?

"On the eastern side.

"Is there, in fact, any population of any consequence on the western side? (Objected to.)

"Mr. Johnson: They set up that public necessity requires them to cut down these trees. Now, we have a right to show that the public necessity depends upon the travel there.

"The Court: I don't believe I shall submit to the jury whether the city is justified in taking land for public purposes. If they have taken it, they are to be the judges of that.

"Mr. Mortland, referring to a decision in 78 Me. 424, 6 Atl. 835 [Nutter v. Taylor], in which, he said, the chief justice concurred, said: There is a question at issue as to whether the surveyor had a right to determine, or whether it is a fact for the jury.

"The Court: A right to determine whether he is acting with bad motive?

"Mr. Fogler: The issue in that case is whether the acts were malicious.

"Mr. Mortland: But the court lays down a rule—

"The Court: I think the city and its officers are the judges as to whether the public necessity requires it.

"Mr. Mortland: Then the public might be at the mercy of an incompetent man. I will put this: State as to what proportion of the population south of Holmes street travel on the western side. (Objected to.)

"The Court: I think, if he knows, if he has means of knowledge to give a good judgment, he may state what proportion of the travel goes on the west side of the street.

"Mr. Fogler: For what purpose?

"The Court: As descriptive of the locus.

"Counsel: After you leave Holmes street there is no sidewalk, and there is no travel down that way to speak of. They have to cross over to go down on the eastern side.

"In going from St. George, or South Thomaston, or Owl's Head, on which side of the street would that population travel if they went on the sidewalk? (Objected to.)

"The Court: That is too remote. The city is just as much bound to give five of its population good travel as it is to give twenty-five of its population.

"Mr. Mortland: They say that whatever they did was necessary to be done.

"The Court: I shall never submit to this jury the bare, single question as to whether there was any necessity of building the sidewalk or not.

"Mr. Mortland: We contend that, under the city charter, the city government has entire control over it. The surveyor has no authority except what is conferred by the city government.

"The Court: Then he is a trespasser in everything he has done. I shall exclude that last question.

"Mr. Johnson: Then, as to the other point. The city has the right to build the sidewalk on the line of the street, but when it comes to taking down trees, or anything that projects into the sidewalk, there must be a matter of necessity before a man can take them down. Now, can I show whether these trees should, or not, come down, according to the necessity?

"The Court: You will find that it has very little to do with it before we get through, according to my view of it if a surveyor, every time he removes a tree or rock from the side of the road, has got to prove to a jury that it was necessary to do it, he does not occupy much of an office.

"Mr. Johnson: The owner of the fee has a right to plant trees, and the statute is full of authority, and when he does plant them, the court says that the surveyor shall protect them until there is a necessity for taking them down. Now, haven't we a right to show the amount of travel that goes up and down that street?

"The Court: My idea is that the city is the judge of the necessity, and, in some degree, the officer who has charge of the road.

"Mr. Johnson: Yes; and the citizen who goes up and down the street ought to know.

"The Court: I have allowed you to put it in, in a general way, but I cannot give it the force as you now claim. It is too remote,— to show the unreasonableness of it,—to ask whether the travel from St. George, or some other place named, has to go one way or the other. I have allowed you to show the amount of travel going there,—the general fact. Otherwise, you might go far enough to prove the names of the people, and how often they go."

Also, in the testimony of Mrs. Emma Karcher, the daughter of the plaintiff, the witness was asked if she knew "any reason for cutting those trees down," which question was objected to, and the court said: "She need not answer that question."

Also, in the testimony of Mr. Simmons, the defendant, is the following:

"Defendant's Counsel: State whether you had any talk with Mr. Carleton after the trees were cut down, or with Dexter Simmons, relative to hiring some one to grade and sod the lot (Objected to.)

"The Court: Any directions that he gave are admissible.

"Mr. Mortland: Directions to a party not in the presence of my client?

"The Court: Anything that he did showing good faith and reasonableness is admissible.

"Mr. Mortland: I would like an exception to that.

"The Court: You may have an exception, and he may state what he did or directed to be done.

"Witness: I told Mr. Dexter Simmons to engage Mr. Carleton to sod up the premises, and move the shrubbery, and put the bushes anywhere that Mrs. Wilson wanted them put,—to consult her, and, if she wanted them changed, to change them as she wanted them."

To which rulings and refusals to rule the plaintiff excepted. Other exceptions relating to the charge are adverted to in the opinion.

D. N. Mortland and M. A. Johnson, for plaintiff.

C. E. & A. S. Littlefield and W. R. Prescott, for defendant.

WHITEHOUSE, J. This case comes to the law court on report and exceptions. It is an action of trespass quare clausum, brought against the road commissioner of Rockland, for damages alleged to have been sustained by the construction of a sidewalk within the located limits of Main street in that city. The plaintiff contends that the location of the street relied upon by the defendant was not a legal and valid one; and, secondly, that, in removing certain large trees in front of her house, the defendant acted wantonly, oppressively, and maliciously, and thereby forfeited all claim to the justification which a legal location of the street might have afforded him. But, upon the hypothesis submitted in the instruction of the court, that there had been a valid location of the street in 1889, the jury rendered a general verdict in favor of the defendant. At the same time,...