City Of Laconia v. Morin.

• Decision Date: 02 February 1943
• Docket Number: No. 3367.,3367.
• Parties: CITY OF LACONIA v. MORIN.
• Court: New Hampshire Supreme Court

30 A.2d 479

CITY OF LACONIA

v.MORIN.

No. 3367.

Supreme Court of New Hampshire.

Feb. 2, 1943.

Transferred from Superior Court, Belknap County; Johnston, Judge.

Trespass by the City of Laconia against Joseph J. Morin for the cutting and removing of a tree which stood between sidewalk and traveled part of highway in front of abutting land owned by defendant's wife. Cause transferred on plaintiff's exception to granting of a nonsuit at close of plaintiff's evidence.

Judgment for defendant.

Trespass, for cutting and removing a large elm shade tree in Pleasant Street, Laconia. The tree stood between the westerly sidewalk and the traveled part of the highway. The abutting land belonged to the defendant's wife, and the defendant, apparently acting for her, procured it to be cut down by one Saunders in April, 1941. Trial by jury. At the close of the plaintiff's evidence, a nonsuit was granted, and the plaintiff excepted. Transferred by Johnston, J. Further facts appear in the opinion.

William W. Keller, City Sol., of Laconia, for plaintiff.

Normandin & Normandin, of Laconia (F. A. Normandin, of Laconia, orally), for defendant.

Stephen M. Wheeler, Acting Atty. Gen., for the State as amicus curiae.

PAGE, Justice.

The Province Road, of which the locus is a part, was laid out about 1770 in accordance with the provisions of acts of the provincial legislature passed in 1763 and 1765. 3 Laws N.H. 338, 351. The age of the highway suggests that the public acquired only an easement of passage over the property that was taken. Hening's Digest, 781. The provision by the legislature (3 Laws N.H. 351) that, after the layout of the Province Road should be determined by the committee, the proprietors of the several towns should at their own expense clear the way and make it passable for teams “thro their respective grants” is significant of an intention to take no more than was necessary for suitable travel over the property involved. The acts indicated no claim to the soil, and the title to the soil remained in the abutting owners. Copp v. Neal, 7 N.H. 275, 277. The abutting owners were left with rights to use the locus for any purpose not inconsistent with the public travel, and it is to be presumed that such rights extended to the thread of the way. Lyford v. Laconia, 75 N.H. 220, 227, 72 A. 1085, 22 L.R.A., N.S., 1062, 139 Am.St.Rep. 680; In re Reed, 13 N.H. 381, 384.

The abutting owner having retained title to the land, the trees growing thereon belonged to him. Rowe v. Addison, 34 N.H. 306, 312. The public may not take the trees except for public use, after paying the owner just compensation. Baker v. Shephard, 24 N.H. 208, 213. The owner may not be deprived of them for public use for shade and ornamentation without purchase or condemnation proceedings. Bigelow v. Whitcomb, 72 N.H. 473, 57 A. 680, 65 L.R.A. 676.

The tree in question was designated and tagged in 1902 by the plaintiff's tree warden as reasonably necessary for shade and ornamentation under the provisions of Laws 1901, c. 98. The plaintiff did not acquire title by purchase or by proceedings for condemnation as permitted by that act. The city claims, however, to have acquired title by adverse possession.

Its first claim is that the tagging itself was a possessory act. But the affixing of the tag could have no meaning except such as the statute gave it. Under section 2 of the act, the marking was merely evidence of the tree warden's decision that the tree was reasonably necessary for shade and ornamentation, and consequently suitable to be controlled by the municipality. By section 3 provision was made that if any tree marked should prove to be private property, and the owner refused to convey to the municipality, the tree warden should acquire it by purchase or by eminent domain. As a claim of title, the tagging was therefore perfectly colorless; it was significant only as a preliminary to acquisition of title, or, if that was not effected, to the exercise of such control as the act permitted over privately owned shade trees in the highway. The failure of the City to take any steps whatever to acquire title to this tree deprived the act of tagging of any virtue or meaning whatever as a claim of title. Whether or not the act is to be construed as doing away with the possibility of acquisition of title by adverse possession, no act under it can avail as a possessory act unless it clearly shows a claim of title.

The acts alleged as possessory all lack a clear claim of title. Since they are possibly referable to a claim of control without claim of title, they cannot be said to have the color of openness, adversity or exclusiveness essential to the acquisition of title by adverse possession. Manchester v. Duggan, 75 N.H. 33, 70 A. 1075. The act of 1901 contemplated municipal control over ornamental trees properly designated in the highway. Section 4 permitted municipalities to appropriate money for pruning and protecting such trees whether in public or private ownership, as well as to plant new trees or to acquire title...