Cody v. City of North Adams
| Decision Date | 04 December 1928 |
| Citation | 164 N.E. 83,265 Mass. 65 |
| Parties | CODY v. CITY OF NORTH ADAMS. |
| Court | United States State Supreme Judicial Court of Massachusetts Supreme Court |
OPINION TEXT STARTS HERE
Appeal from Superior Court, Berkshire County; Callahan, Judge.
Action by Jennie A. Cody against the City of North Adams. Finding for plaintiff, and defendant appeals. Judgment for plaintiff.P. J. Ashe, City Sol., of North Adams, for appellant.
C. T. Phelps and W. F. Barrington, both of North Adams, for appellee.
‘On June 16, 1925, and for many years prior thereto, a large elm tree, a public shade tree, stood at a point in the southerly part of [Quincy street, a public highway in North Adams] within the limits of the said highway and land of the ‘petitioner,’ partly within the area of the sidewalk of said street and partly within the area used for vehicular travel.' The tree was ‘approximately 60 feet in height and about 11 feet in circumference at its base.’ It was decayed in the trunk near its base and some of the roots had been severed for purposes of sidewalk construction. On June 16, 1925, the tree because of its decayed condition fell on the petitioner's house, causing the damages sought to be recovered in this action.
The powers and duties imposed on tree wardens by G. L. c. 87, are exercised and performed in North Adams by the commissioner of public works, ‘who is charged with the care of shade trees within the limits of the highways of said city.’ It was agreed that in December, 1925, the petitioner duly petitioned the commissioner of public works for an assessment of damages; the petition was denied, whereupon the petitioner ‘brought her petition * * * for the assessment and recovery of the damages sustained.’
Under G. L. c. 87, § 5, tree wardens may, without a hearing, cut down trees ‘less than one and one-half inches in diameter one foot from the ground,’ ‘standing in public ways,’ and, when so ordered, may cut down trees which endanger public travel. By section 3 of this chapter it is provided that, except as provided in section 5, public shade trees shall not be cut, trimmed or removed in whole or in part by any person other than the tree warden or his deputy, and the owner of the fee in the land on which the public shade tree is situated is prohibited from removing or cutting down the tree, except upon a permit from the tree warden. It is further provided in this section (G. L. c. 87, § 3) that such a tree shall not be cut down or removed by the tree warden without a public hearing held after due notice is given; and that a person who suffers injury ‘in his property by the action of the officers in charge of the public shade trees as to the * * * retention of any such tree * * * may recover the damages * * * sustained,’ under G. L. c. 79, the eminent domain statute. This petition is brought under this statute.
No question arises in this case as to the duty of the tree warden to remove a tree that stands in a public highway and is dangerous to public travel, nor is there any question as to the liability of a city or town to a traveler on the public highway who is injured by a defect in the way caused by a public shade tree. The sole question in the case stated by the parties is the liability of the city of North Adams for the injury...
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Jones v. Inhabitants of Town of Great Barrington
...not be maintained because no public hearing had been held concerning the retention or removal of the tree. See also Cody v. North Adams, 265 Mass. 65, 164 N. E. 83. In the former opinion on the plaintiff's petition the court said at page 780 of 168 N. E.: ‘No statute of this Commonwealth in......
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Kurtigian v. City of Worcester
...a private nuisance as to the plaintiff and his property. While not a public shade tree (see G.L. [Ter.Ed] c. 87, § 1; Cody v. North Adams, 265 Mass. 65, 164 N.E. 83), it was on land owned by and subject to the control of the city. It was obviously decayed. In 1958 one of the three remaining......
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City of Medford v. Metropolitan District Commission. City of Malden v. Same.
...(G.L. [Ter. Ed.] c. 87, Section 1; Chase v. Lowell, 149 Mass. 85; Whiting v. Board of Public Works of Holyoke, 222 Mass. 22; Cody v. North Adams, 265 Mass. 65) is fact true, it does not appear that the defendants have not the right to remove them. The naked allegation of arbitrary and irrat......