Commonwealth v. Byard

• Decision Date: 24 November 1908
• Citation: 200 Mass. 175,86 N.E. 285
• Parties: COMMONWEALTH v. BYARD.
• Court: United States State Supreme Judicial Court of Massachusetts Supreme Court

200 Mass. 175

86 N.E. 285

COMMONWEALTH v. BYARD.

Supreme Judicial Court of Massachusetts, Bristol.

November 24, 1908

COUNSEL

James M. Swift and Frank B. Fox, for plaintiff.

Benjamin Cook, Jr., for defendant.

OPINION

KNOWLTON C.J.

The defendant was found guilty upon an indictment framed under Rev. Laws, c. 208, § 100, as amended by St. 1902, p. 485, c 544, § 30, alleging that he 'willfully and maliciously and wantonly did injure a tree standing for a useful purpose of the property of Minnie M. Glendon.' This was a large cherry tree standing near the line of the street, within its owner's inclosure, and it had large branches extending over the street. One part of the trunk, about 14 inches in diameter, extended over the line of the street about 9 feet above the ground. One Nickerson obtained from the proper authorities a permit to move a building through the street, around the corner, into another street. Mrs. Glendon's lot at and near the corner abutted on both streets. The building was five feet longer and about a foot and a half wider than that described in the permit, and therefore the authority given did not justify the removal of this larger building through the street. Under Rev. Laws, c. 52, § 13, which applies to cities as well as towns (Rev. Laws, c. 26, § 2), its removal in that place was unlawful.

Its length and width were such that it was necessary to carry it over a part of Mrs. Glendon's land near the corner of the street, and to cut down a small tree in her yard, and Mrs. Glendon agreed with Nickerson that this might be done. Its width was so great, and houses upon the other side were so located, that it could not be taken through the street without cutting off branches and a part of the trunk of the cherry tree. The owner of the tree refused to permit this to be done, and the defendant, assuming to act under his authority as a tree warden, did it against her protest.

The first question that arises is: What is the authority of a tree warden under Rev. Laws, c. 51, § 10? Does it include a right to cut down trees, or to cut off parts of trees, standing on private land outside of the boundary lines of the street? We are of opinion that it does not. The surveyors and road commissioners, under the last clause of this section, should cause parts of such trees to be removed if they obstruct the way, or endanger, hinder, or incommode persons traveling thereon. In the early part of the section an exception is made of 'public shade trees in towns'; but trees and bushes standing in ways may be trimmed or lopped off, or, in pursuance of a vote of the mayor and aldermen, selectmen or road commissioners, passed after public notice and a hearing, may be cut down and removed by the officer who has the care of trees belonging to a city or town. But this part of the section has reference only to trees and bushes 'standing in ways.' The defendant had no legal right to cut off the branches of the tree, and the ruling on this part of the case was correct.

The defendant's counsel presented 17 requests for rulings, some of which are covered by what we have said, and many of which relate to the meaning of the word 'wantonly' used in the indictment. Under this indictment it was not necessary to prove that the defendant acted maliciously. Indeed, the commonwealth did not contend that the charge of malicious action was sustained, and the judge instructed the jury that it was not sustained. The case was left to stand upon the allegation that the defendant acted wantonly.

The judge...