Clark v. Dasso

• Citation: 34 Mich. 86
• Court: Supreme Court of Michigan
• Decision Date: 20 April 1876
• Parties: John P. Clark v. William Dasso and others. [*]

34 Mich. 86

John P. Clark v. William Dasso and others. ^[*]

Supreme Court of Michigan

April 20, 1876

Heard April 13, 1876

Error to Wayne Circuit.

Judgment reversed, with costs, and a new trial ordered.

Jackson & Wisner, for plaintiff in error.

Henry M. Cheever, for defendants in error.

OPINION

Cooley, Ch. J.

This was an action of trespass brought for the cutting and carrying away of certain shade trees which had been preserved by the plaintiff in a certain avenue fronting his premises in the township of Springwells. The avenue was seventy feet in width. There were sixteen of the trees, two of which stood near the centre of the avenue, with a traveled road on each side, and the majority of the others stood within ten feet of the fence bordering the avenue. The defendant Hynes was highway commissioner. He testified that one Barkham, a resident of the town, told him "that the trees ought to be cut down; that they were not the thing to have in a street; that we were not living in a country where we had to make woods out of a highway, and that they ought to be cut away." Acting on this suggestion the commissioner proceeded to sell the trees to defendant Dasso, for sixteen dollars, and the latter cut them and appropriated them to his own use.

The street commissioner justifies his action under § 1317 of the Compiled Laws, which reads as follows:

"Any person who shall (except as hereinafter provided) willfully injure, deface, tear, or destroy any tree or shrub thus planted along the margin of the highway, or purposely left there for shade or ornament, shall forfeit a sum not less than five nor more than one hundred dollars for each offense, which sum may be recovered in any court of competent jurisdiction: Provided, That whenever it shall appear to the board of commissioners for highways in any town in this state, that any shade or ornamental trees or shrubs are an obstruction or an injury to any highway, said trees or shrubs may be cut down and removed by order of the aforesaid board of commissioners of highways."

It seems hardly necessary to say that the commissioner has not acted under this section. He has found some shade trees belonging to the plaintiff standing in the highway, and he has proceeded to sell them. For this he will find no authority whatever in the statute. Being prosecuted for this action which he had no right to take, he falls back upon what he might have done, but which he has not attempted. Selling a tree is a very different thing from ordering its removal. The attempted justification therefore fails entirely.

We might leave this case here, but the danger that similar wrongs may be committed in other cases seems to justify further remark. The policy of our laws, as is clearly indicated by the statute already quoted, favors the planting and preservation of shade trees in the public streets where they do not constitute actual obstructions. Undoubtedly there must be some officer clothed with authority to protect the highways against the excessive planting or the improper location of trees, and the commissioner of highways is a very suitable officer to be entrusted with this authority in the townships. But where he is authorized to order the removal of shade trees, it is a great mistake to assume that he may exercise...