Chase v. City of Lowell

• Decision Date: 06 May 1889
• Parties: CHASE v. CITY OF LOWELL.
• Court: United States State Supreme Judicial Court of Massachusetts Supreme Court

149 Mass. 85

21 N.E. 233

CHASE v. CITY OF LOWELL.

Supreme Judicial Court of Massachusetts, Middlesex.

May 6, 1889

COUNSEL

Marshall & Hamblet, for plaintiff.

F.T Greenhalge, for defendant.

OPINION

W ALLEN, J.

The plaintiff was injured, while traveling in a public street in Lowell, by the falling upon him of a shade tree growing in the street. There was evidence that the tree was defective and dangerous from its liability to be blown down by ordinary high winds. The court refused to give the instruction asked by the defendant, that "the defendant had no power or right to remove or cut down the tree causing the injury to the plaintiff, without such complaint to and adjudication by the proper authorities as to the removal or destruction of the same as are provided by law;" and the instructions to the jury as to the liability of the defendant in consequence of reasonable notice of the defect, and for the want of reasonable care and diligence, which might have prevented the injury, were on the assumption that the highway surveyor had authority to cut down or remove the tree. Whether the defendant had reasonable notice of the defect and used reasonable care and diligence to remedy it, may have depended upon whether the highway surveyor could cut down the tree immediately upon notice that it constituted a defect in the way. Pub.St. c. 52, § 10, as amended by St.1885, c. 123 § 2, provides that "the officer appointed to have the care of the trees belonging to a city or town, and his assistants, but no other person except as is provided in the following section, and in section ten of chapter fifty-four, may, and when required by the surveyors of highways or road commissioners shall, trim or lop off trees and bushes standing in highways, town ways, streets, or lanes, and when ordered by a vote of the mayor and aldermen, selectmen, or road commissioners, passed after public notice and hearing, shall cut down and remove such trees; and the surveyors of highways and road commissioners shall forthwith cause to be dug up and removed whatever obstructs such ways, or endangers, hinders, or incommodes persons traveling thereon; and shall forthwith cause snow to be removed from such ways, or to be so trodden down as to make the ways reasonably safe and convenient." It is argued that this statute will not be construed to include shade trees that endanger travelers upon the highway, but that, under the general provisions of the statutes requiring towns and cities to keep the highway safe and convenient for travel, and under the duty imposed upon highway surveyors to remove whatever incommodes or endangers travelers, they have a right to cut down a shade tree which has become dangerous to travelers. We think that the statute limits the duty of the surveyor of highways in such a case to procuring an adjudication that the tree is dangerous, and shall be removed, and until it shall be so removed to taking due precaution against the danger. The history as well as the language of the statute shows that this is its meaning. Sections 1-3, Rev.St., c. 25, are taken from St.1786, c. 81, § 1, which prescribed the duties of towns and of highway surveyors in respect to the repair of highways. Section 3 in the Revised Statutes contains the part of the Statutes of 1786 which defined the general powers and duties of highway surveyors in reference to highways, and provided that "every surveyor of highways shall have full power (except as provided in the following section) to cut down or lop off all trees and bushes, and to dig up and remove all stones, stumps, fences, gates, bars, inclosures, or other things that shall in any manner obstruct or incumber any highway or town way, or hinder, incommode, or endanger persons traveling thereon; and, when any such way is incumbered with snow, he shall also forthwith cause the same to be removed, or so trodden down as to make the way safe and convenient." The next section referred to gates so put up to prevent the spread of contagious diseases. St.1856, c. 256, first authorized the planting of shade trees in the highways, and provided that trees planted under such license should be the private property of the person planting them, and should not be deemed a nuisance, but might be removed by the mayor and aldermen, selectmen, or road commissioners, on complaint to them. The provision was re-enacted and extended to all...