Darling v. Newport Electric Light Co.

• Decision Date: 05 May 1908
• Citation: Darling v. Newport Electric Light Co., 74 N. H. 515, 69 A. 885 (N.H. 1908)
• Parties: DARLING v. NEWPORT ELECTRIC LIGHT CO.
• Court: New Hampshire Supreme Court

69 A. 885

74 N.H. 515

DARLING

v. NEWPORT ELECTRIC LIGHT CO.

Supreme Court of New Hampshire. Sullivan.

May 5, 1908.

Transferred from Superior Court, Sullivan County; Chamberlain, Judge.

Action by Walter P. Darling against the Newport Electric Light Company.

Plea the general issue, with a brief statement that the defendant was licensed by the selectmen of Newport to erect and maintain poles and wires on Summer street, in that town, and that the alleged trespass consisted of acts legalized by the license.Verdict for the plaintiff, Transferred from the superior court on exceptions by defendant.Exceptions overruled.The plaintiff's close is on Summer street, and the defendant cut limbs from his shade tree which stood near the line of the street.The defendant's poles were in the street, and the wires were strung upon cross-arms.This brought them close to the plaintiff's tree.Before the alleged trespass the town had voted to install a light on Summer street.To do this, it was necessary to erect poles and string wires past the plaintiff's store, but this could have been properly done without interfering with the tree.The cutting was without the plaintiff's consent, and without other authority than that already stated.The defendant moved for judgment because an action of trespass could not be maintained, and because the plaintiff's remedy was by petition to the selectmen for an assessment of his damages.The motion was denied, subject to exception.

George R. Brown, for plaintiff.Jesse M. Barton, for defendant.

PEASLEE, J.It is not necessary to consider in this case what the relative right of these parties would be at common law.The defendant might have obtained a right to maintain its poles and wires in the manner prescribed by the statute.Pub. St. c. 81.It was prohibited from erecting them without so securing the right Id.§ 1.Granting that the implied license to erect its line in Summer street could be held to be a compliance with the provision that the selectmen shall "grant a license for such time as they deem expedient," and "shall fix and state therein the size and location of such poles and structures, the distances between them, the number of wires to be used, and their distance above or below the surface of the highway"(Id.§ 2), it could not be extended to cover the present case."No person or corporation shall have a right to cut, mutilate or injure any shade or ornamental tree for the purpose of erecting or maintaining their line without consent of the owner of the land on which it grows; or, if his consent cannot be obtained, unless the selectmen, upon petition, after notice to and hearing the parties, decide that the cutting or mutilation is necessary, and assess the damages that will be occasioned the owner thereby or until the damages are paid or tendered."Id.§ 5.There is no pretense of a compliance with this statute.The justification fails, and the defendant stands no better than any other trespasser.Strickford v. Railroad, 73 N. H. 81, 83, 59 Atl. 367.The abutter has such possession that he may maintain trespass against any one cutting his trees, or in any way invading his possession.Bigelow v. Whitcomb, 72 N. H. 473, 476, 57 Atl. 680, 65 L. R. A. 676.

The provision that any person "damaged...