City of Salem v. Salem Gas Light Co.

• Decision Date: 05 June 1922
• Citation: 241 Mass. 438,135 N.E. 573
• Parties: CITY OF SALEM v. SALEM GAS LIGHT CO.
• Court: United States State Supreme Judicial Court of Massachusetts Supreme Court

241 Mass. 438

135 N.E. 573

CITY OF SALEM

v.SALEM GAS LIGHT CO.

Supreme Judicial Court of Massachusetts, Essex.

June 5, 1922.

Exceptions from Superior Court, Essex County; Louis S. Cox, Judge.

Action by the City of Salem against the Salem Gas Light Company for the destruction of shade trees by gas escaping from defendant's pipes. Verdict for plaintiff, and defendant brings exceptions. Exceptions overruled.

The trees were in a public highway between the sidewalk and the macadam part of the highway used for other kinds of travel in front of property conveyed to the city for the purpose of establishing and maintaining a free public library. Defendant requested rulings, among others: (7) That plaintiff had failed to maintain by a fair preponderance of the evidence that defendant was careless and negligent in failing to properly inspect its mains; (8) that plaintiff had failed to maintain by a fair preponderance of the evidence that defendant was careless and negligent in seasonably checking the flow of gas from leaks in its mains; (17) that if the negligence of the city in caring for its trees contributed as a cause to their death, defendant would not be liable; (18) that the cutting off of the tops of the trees by Mackay was an unlawful act and plaintiff could not recover damages for the costs thereof; (19, 20) that plaintiff could not recover in this action the cost of removing and replacing the trees; (21) that if plaintiff recovered at all it could only recover the damage to its real estate, if any, caused by the destruction of its trees by the negligence of the defendant. Mackay was the acting tree warden of the city in 1918 and supervised the removing of the limbs of the trees and testified that he received instructions from the street commissioner to remove them but that this was not the only reason for taking them down, that they were in a bad state, were falling down and that it was necessary to send a man every other day to clean up the road of limbs which had fallen. The charge so far as it related to damages was as follows:

The property which the city of Salem owned is that which was deeded to it by the deed-who was it, Bertram? It was limited and limited solely to be used forever as a public library; and the claim of the plaintiff is that by reason of the negligent act of the defendant it rost some of the value of that estate; and that was more forcibly put by the expert on values, who said that in his opinion for library purposes the property was worth $100,000 when the trees were there. With the trees gone, he was of the opinion it was only worth $97,500.

Now, very little has been said, and no other witness has been called upon the putting of values upon injuries to real estate; but that is a strict way in which it is to be put. The parties in this case immediately began to set a value on the property, or rather the injury to the property, diminishing value, by saying how much it would cost to dig up the trees that are there and replace them by younger trees. That is in the nature of a test, rather than the ground for admitting it.

But on the grounds for admitting it, it is this: That where the city owned this property and where they were custodians of it for the purposes of the library, that if any injury was done to that they would have a right to do whatever a reasonable, prudent person would do in order to accommodate himself to the new circumstances. That is, on learning that five trees had been spoiled so that they were no longer of value to the estate, then what would a reasonable, prudent person do? The cost might be so much as to preclude doing anything except to mourn their loss; because from that time on the value was an artistic value; that is, you could run a library there with just as good success without them as you could with them, and it might be prohibitive to go into the expenditure of considerable money for the removal.

But the plaintiff says that in this case it is not prohibitive; that the city as the trustee of the library has a duty to perform to preserve that property for the purposes of the public library; and if it ever ceased to be used for that purpose it would go back into the hands of the original owners. And so he says that as a reasonable trustee, or reasonable owner of that property, the reasonable man would at once remove those stumps. And then he would go further, and he would replace those by some sort of trees.

I do not know as it is conceded, but there has been evidence here that although there were five trees there originally, that it was not good to have those trees so near together; they would have grown better, been better trees in either three or four. And so the inquiry to which they have directed a great deal of the evidence has been as to what it would cost to remove the present stumps.

If it had been known that those trees were dead when they were topped-and they had got to be topped-they might have been done more economically if done as one job. But they had a right to remove the trees when dead, and put up other ones in their place; not of the same dimensions, not of the same age; and there has something crept in here which is hard to deal with, but there has been evidence here of the length or probable length of life of those trees. That is that the library would probably be permanently deprived of them, one witness says in five years, one witness in ten or twelve, and another witness, the custodian of the trees in Swampscott, that they were going to live until they were over a hundred. But the probable length of life of those trees would determine in some way their value. We have not been talking about the value of trees independent of real estate, but how the value of the real estate was affected by the presence or the absence of the trees.

Now, a person using good judgment, and using due care not to do anything that would not be warranted in making an outlay to remove the trees and to put other ones in their place, then if after that is done the library property is worth just as much for library purposes as before, that would be the measure of damages. That is what they have seemed to adopt, largely the idea that the real loss that has been sustained by the plaintiff is the cost of removing those trees and the cost of substituting others in their place.

If you find that the property would be worth just as much for library purposes after that was done as before, then that would be the measure of damages. So you have that as one of the ways of computing, and a way that seems to have been adopted very largely in this case by the parties in putting on their witnesses. They cannot have any damages for not having those trees to look at during such times as they were down, whether it would be five or ten years; but whether they had a life of five or ten years will have to be considered in coming to the conclusion to which you are...