Jones v. Inhabitants of Town of Great Barrington

• Decision Date: 18 December 1930
• Citation: 273 Mass. 483,174 N.E. 118
• Parties: JONES v. INHABITANTS OF TOWN OF GREAT BARRINGTON.
• Court: United States State Supreme Judicial Court of Massachusetts Supreme Court

273 Mass. 483

174 N.E. 118

JONES

v.INHABITANTS OF TOWN OF GREAT BARRINGTON.

Supreme Judicial Court of Massachusetts, Berkshire.

Dec. 18, 1930.

Appeal from Superior Court, Berkshire County; W. A. Burns, Judge.

Action by Wellington W. Jones against the Inhabitants of the Town of Great Barrington. A demurrer to the declaration in four counts was sustained, and plaintiff appeals.

Order sustaining the demurrer to counts 1, 3, and 4 affirmed, but otherwise reversed, and demurrer to count 2 overruled.

F. H. Wright, of Great Barrington, for appellant.

F. J. Brothers, Town Counsel, of Great Barrington, for appellee.

SANDERSON, J.

The plaintiff first brought a petition under G. L. c. 79, pursuant to the provisions of G. L. c. 87, § 3, to recover damages caused by the falling of a public shade tree upon his house, and this court held in an opinion reported in 168 N. E. 779, that the petition could 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 terms makes any provision for a petition under the eminent domain act G. L. c. 79, to recover damages to person or property sustained by reason of the failure of public officials to remove or make safe trees which endanger, hinder or incommode travel on a public way. The remedy, if any there be for such harm, is to be found at common law or in statutory provision requiring that public highways shall be kept reasonably safe for travel at all seasons of the year.’ After the decision the plaintiff was permitted to amend his petition into an action at law sounding in tort.

In the first count of the declaration he alleges, in substance, that he was the owner of real estate with a dwelling house thereon situated on Main street, a public highway in the town of Great Barrington; that there had existed for a long time on or near the boundaries of the premises and within or upon or near the boundaries of the highway a public shade tree which had been in a dangerous condition by reason of a hole or cavity in its trunk; that because the tree was a public shade tree he was forbidden by law to remove it; that he had notified the selectmen and tree wardens of the defendant town of its dangerous condition and that they had negligently caused and permitted the defective tree to stand; and that the tree on account of its decayed condition was blown over upon the dwelling house of the plaintiff causing damage to the house, furniture and other articles therein and injuring the plaintiff's business and the health of himself and wife. In the second count, after referring to his property bounding on the public way, he alleges that the defendant, its agents and servants, had maintained and permitted to stand a public shade tree which had been in a dangerous condition for a long time; that the town, its agents and servants, had sufficient notice of its condition to charge them with knowledge thereof, but that they permitted the tree to stand and failed to hold any public hearing as to cutting or retention of the tree by reason whereof the occupation of the property by the plaintiff and his family was made inconvenient, unhealthy and unsafe; that on October 12, 1927, the tree, by reason of its unsafe condition, was blown over upon the house causing damage to the property and injury to the health and business of the plaintiff; and that the defendant thereby created and maintained a nuisance to the damage of the plaintiff. The third count is based upon a negligent failure of the defendant to keep the public way in repair, as required by law, and in consequence whereof the plaintiff suffered damage. In the fourth count the plaintiff, after referring to the location of his property and of the public shade tree, alleges that in October, 1927, the tree was and for a long time had been in a dangerous condition, and that he had notified the defendant, its agents and servants, and had requested that the tree be removed or proper action in regard to it be taken, but that nothing was done in reference thereto, and on or about October 12, 1927, the shade tree which was in the control of the defendant its agents and servants, was blown over and thrown upon the land and dwelling house of the plaintiff, causing great damage thereto and injuring his health and business.

A damurrer to the declaration based upon the grounds that the matters contained in the several counts are not sufficient in law for the maintenance of the action and that the plaintiff's only remedy, if any, is by petition under the eminent domain act, G. L. c. 79, was sustained, and the appeal from that order presents the questions to be decided.

It is settled by the previous decision that upon the facts alleged the plaintiff had no remedy under the eminent domain statute. The damages suffered by the plaintiff did not come to him as a traveler upon a public way, and cases like Valvoline Oil Co. v. Winthrop, 235 Mass. 515, 126 N. E. 895, holding a municipality liable to such travelers because it had negligently permitted public shade trees or their limbs to obstruct and hinder traffic, thereby making the condition of the way defective, are not applicable. Richards v. Enfield, 13 Gray, 344, 346;Kelley v. Boston, 180 Mass. 233, 234, 62 N. E. 259: See Andresen v. Lexington, 240 Mass. 517, 134 N. E. 397, 21 A. L. R. 1551. For this reason count three sets forth no legal cause of action.

In Commonwealth v. Morrison, 197 Mass. 199, 203, 83 N. E. 415, 416,14 L. R. A. (N. S.) 194, 125 Am. St. Rep. 338, the court said: ‘The public secure by the location of a highway an easement of passage, with all the powers and privileges which are necessarily implied as incidental to its exercise. The easement is coextensive with the limits of the highway. The fee of the land remains in the landowner, who may make any use of it not inconsistent with the paramount right of the public. * * * The easement acquired by the public includes every reasonable means of transportation for persons and commodities, and of transmission of intelligence, which the advance of civilization may render suitable for a highway.’ See Stackpole v. Healy, 16 Mass. 33, 8 Am. Dec. 121;Allen v. Boston, 159 Mass. 324, 325, 34 N. E. 519,38 Am. St. Rep. 423;Lancy v. Boston, 186 Mass. 128, 132, 71 N. E. 302;Opinion of the Justices, 208 Mass. 603, 605, 94 N. E. 849. The exercise of the right to cut down or remove any ornamental or shade tree standing in a highway, town way, or street was first curtailed and regulated by St. 1867, c. 242. This statute was incorporated in Pub. St. 1882, c. 54, § 10. By St. 1899, c. 330, § 2 (R. L. c. 53, § 12) it was first enacted that ‘All shade trees within the limits of any public way shall be deemed public shade trees.’ This section of the statute as amended by St. 1910, c. 321 was repealed by St. 1915, c. 145, § 13, and a substituted provision appears in § 2 of that act, which provides in part as follows: ‘All trees within or on the limits of a public way shall be public shade trees; and when it appears in any proceeding where theownership of or rights in the tree are material to the issue, that, from length of time or otherwise, the boundaries of the highway cannot be made certain by the records or by monuments, and that for that reason it is doubtful whether the tree be within or without the limits of the highway, or is public or private property, it shall be taken to be within the limits of the highway and to be public property until the contrary is shown.’ This provision is substantially reenacted in G. L. c. 87, § 1.

The tree warden in performing his duties is a public officer. Donohue v. Newburyport, 211 Mass. 561, 98 N. E. 1081, Ann. Cas. 1913B, 742. His power to remove a public shade tree or to authorize its removal is somewhat limited and prescribed by the provisions of G. L. c. 87, § 3, requiring a public hearing before he acts...