Bigelow v. Whitcomb

• Court: Supreme Court of New Hampshire
• Citation: 72 N.H. 473,57 A. 680
• Parties: BIGELOW et al. v. WHITCOMB et al.
• Decision Date: 01 March 1904

57 A. 680
72 N.H. 473

BIGELOW et al.
v.
WHITCOMB et al.

Supreme Court of New Hampshire. Cheshire.

March 1, 1904.

Transferred from Superior Court; Pike, Judge.

Action by Charles Bigelow and another, tree wardens of the town of Hinsdale, against George E. Whitcomb and others. Facts found by a referee, and case transferred by

57 A. 681

the superior to the supreme court. Case discharged.

In January, 1902, the plaintiffs designated the trees in question for shade and ornamentation, as provided in chapter 98, p. 592, Laws 1901. No compensation was tendered to the defendants by the plaintiffs for the trees. In the following March the defendants cut down the trees.

John E. Allen, Charles H. Hersey, and Streeter & Hollis, for plaintiffs.

Cain & Benton and Mitchell & Foster, for defendants.

WALKER, J. This action is brought under chapter 98, p. 592, Laws 1901, relating to the protection and preservation of ornamental and shade trees in highways. It provides (section 1) that one or more tree wardens shall be appointed by the mayors of cities and the selectmen of towns; (section 2) that "towns and cities shall have control of all shade and ornamental trees situated in any public way or ground within their limits, which the tree warden deems reasonably necessary for the purpose of shade or ornamentation; and it shall be the duty of the tree wardens, as soon as possible after their appointment, to carefully examine the trees, situated as aforesaid, and to plainly mark such trees as they think should be controlled by their municipality, for the purposes aforesaid, by driving into each tree, at a point not less than three nor more than six feet from the ground, on the side toward the highway, a nail or spike, with the letters 'N. H.' cut or cast upon the head. * * * They shall also have the power to designate from time to time, in the same manner as hereinbefore directed, such other trees within the limits of the public ways and grounds as in his [their] judgment should be preserved for ornament or shade"; (section 3) that "if any of the trees designated as aforesaid should prove to be private property, and the owners thereof refuse to release or convey their interest therein to the municipality, the tree warden shall acquire them for the use of the city or town, by purchase, if it can be done at a fair price. Failing in this, he may, on petition for that purpose, acquire them in the same way and manner, and with the same right of appeal to their owners, as in the case of land taken for a highway"; (section 4) that towns and cities may appropriate money "to be used by the tree warden in planting, pruning, protecting, and, whenever necessary, acquiring shade and ornamental trees within the limits of their public ways and grounds"; (section 5) that such trees shall not be removed except after a public hearing, etc.; (section 6) that "it shall be unlawful to cut, destroy, injure, deface, or break any public shade or ornamental tree"; and (section 8) that "persons violating any of the provisions of this act shall forfeit not less than five nor more than one hundred dollars, to be recovered in an action of debt by the tree warden."

It is apparent that the Legislature, in enacting this statute, recognized that there might be a private ownership in trees located within the limits of highways, and provided the means by which such private ownership might be legally terminated by the public upon due compensation therefor. McCarthy v. Boston, 135 Mass. 197, 200. No attempt is made to authorize the warden to appropriate trees standing in the highway, without a hearing and compensation, unless they are public property. Private property in such trees, when it exists, is fully protected. Hence the question in this case is not whether the statute is constitutional, but whether the plaintiffs, as tree wardens, have observed the statute in attempting to appropriate the trees in question to the public use of shade and ornamentation. Their proceedings in the premises have been based entirely upon the theory that the trees were not private property, and that the defendants had no legal rights thereto; in other words, that the trees were public property, for the greater protection of which it was only necessary that they should be marked in the prescribed way.

It is assumed, in the absence of a finding to the contrary, that the trees in question stood on the side of a country road, and that their ownership was not peculiar, but depended upon the legal effect of the laying out of ancient highways upon the property rights of the landowner. If, when the highway was laid out, the public acquired the right, not only to construct and maintain a road over the land and to pass and repass thereon, but the right to deprive the landowner of the natural growth upon the side of the traveled path whenever a later public sentiment might require it for ornamentation or comfort, the landowner's title to such growth is not an absolute one, and the public may terminate his limited and qualified right at pleasure, and without further compensation. And it is the plaintiffs' contention that from the time when the highway was laid out, early in the last century, until they marked the trees, as provided in the statute, in 1902, the defendants, or their ancestors in title, might have legally cut down the trees, and used the logs and wood for their own purposes, by virtue of their ownership of the adjoining land; but that, after the trees were designated by the tree wardens for shade and ornament, their right to appropriate them as their property ceased, or was in abeyance, by virtue of an original right which was vested in the public when the highway was laid out. This theory might not be inaccurately stated to be that the public acquired the right to use the natural growth of the land, with a permissive right in or license to the abutter to use and consume it until such time as the pubHe

57 A. 682

might indicate its desire to use it for some highway purpose. On the other hand, it is denied that the public acquired any right to the products of the soil, as the grass and trees naturally growing thereon, except to remove them from the ground when necessary for the convenience or safety of public travel over the way; and that, so long as they do not constitute an obstruction or menace to travelers, the abutter has an absolute right to have them grow there, and an equally unlimited right to remove them.

It is a general principle, which is not controverted in this case, that, "in highways laid out through the lands of individuals in pursuance of statutes, the public has only an easement, a right of passage; the soil and freehold remain in the individual, whose lands have been taken for that purpose." Makepeace v. Worden, 1 N. H. 16. And it was held in that case that if surveyors of highways, in making or repairing roads, cut and convert to their own use wood growing thereon, they are trespassers. "The right acquired by the public in a highway legally established for the public use is only that of an easement—a right of passage over the land. * * * This right consists in the power to make the road and to keep it in repair suitable for travel, and in its free use by the public for all proper purposes, until discontinued. In making or repairing highways, however, nothing can be taken from the land over which they are laid, by the town authorities, for any purpose except the legitimate end of constructing the roads. Everything growing or standing upon the land—the trees, timber, etc.—belongs to the owner, and everything that goes to form the land itself also belongs to him, except what is necessary to be actually used in the making or repairing of the highway." Rowe v. Addison, 3-1 N. H. 306, 311, 312. See, also, State v. New Boston, 11 N. H. 407, 409; Troy v. Railroad, 23 N. H. 83, 93, 55 Am. Dec. 177; Blake v. Rich, 34 N. H. 282; Graves v. Shattuck, 35 N. H. 257, 69 Am. Dec. 536; Winchester v. Capron, 63 N. H. 605, 4 Atl. 795, 56 Am. Rep. 554; Bailey v. Sweeney, 64 N. H. 296, 9 Atl. 543; Perley v. Chandler, 6 Mass. 454, 456, 4 Am. Dec. 159; Jackson v. Hathaway, 15 Johns. 447, 453, 8 Am. Dec. 263. "The owner of the land, therefore, retains his title in trees, grass, growing crops, buildings, and fences standing in the highway at the time of the laying out (unless he fails to remove them within a reasonable time after notice to do so), as well as in any mines or quarries beneath, which are not part of the surface of the earth upon and of which the highway is made." Denniston v. Clark, 125 Mass. 216, 221. He "owns the trees growing upon it, and may maintain trespass against any one cutting them or gathering their fruit, or for any other invasion of his possession. But, of course, the proper public guardian of the highway may cut down any tree which is a permanent obstruction to the use by the public of any part of the highway." Jones, Ease. § 479; Turner v. Highway Board, L. R. 9 Eq. 418.

In Baker v. Shephard, 24 N. H. 208, it was held that by the laying out of a highway the public acquire no right to use the trees growing upon the land to build or repair the road. In the opinion of the court, Judge Bell says (page 215): "The question is whether the trees growing upon the land laid out for a highway are all to be deemed materials subject to the same rules as sand, gravel, etc. —liable to be cut down at the discretion of the agent for building the road, and to be used for the repairs of the road. If they are not, then the question is whether the agent or surveyor has a right to cut down any trees growing in the highway land, except such as it is necessary to cut down and remove for the purpose of building and repairing the road in a reasonable and proper way; and whether the trees properly cut down for this purpose can be deemed materials, and applied, at the pleasure of the agent or surveyor, to the construction or repair of the traveled way." After...