Jones v. Town of Great Barrington

• Decision Date: 27 November 1929
• Citation: 269 Mass. 202,168 N.E. 779
• Parties: JONES v. TOWN OF GREAT BARRINGTON.
• Court: United States State Supreme Judicial Court of Massachusetts Supreme Court

269 Mass. 202

168 N.E. 779

JONES

v.TOWN OF GREAT BARRINGTON.

Supreme Judicial Court of Massachusetts, Berkshire.

Nov. 27, 1929.

Exceptions from Superior Court, Berkshire County; William A. Burns, Judge.

Petition by Wellington W. Jones against the Town of Great Barrington to recover damages resulting when public shade tree fell on house. Judgment for defendant on auditor's report, and plaintiff brings exceptions. Exceptions overruled.

Frank H. Wright, of Great Barrington, for petitioner.

Frank J. Brothers, of Great Barrington, for respondent.

PIERCE, J.

This is a petition brought under G. L. c. 79, in pursuance of the provisions of G. L. c. 87, § 3, to recover damages sustained by the plaintiff by reason of a public shade tree falling upon his house. The answer of the defendant is in effect a general denial, a denial that the tree was a public shade tree, and a defence that the injuries were caused by the act of God. There was no claim for a jury trial. The case was referred to an auditor and his report is made a part of the bill of exceptions. The defendant filed, and the judge allowed, a motion that judgment for the defendant be entered on the auditor's report. The plaintiff duly excepted to the allowance of the motion and the case is before this court on his exceptions so taken.

Briefly stated, the facts found by the auditor disclose that on October 12, 1927, the plaintiff was the owner of real estate with a dwelling house thereon, situated on the northerly side of Main Street, a public way in the village of Housatonic in the town of Great Barrington. For a long tome there had existed on or near the boundaries of said premises and within, upon or near the boundaries of said highway, a public shade tree, approximately nine feet in circumference at its base, over fifty feet in height, and from fifty to sixty years old. In 1916, the plaintiff was informed that the tree was in a dangerous condition; there was a hole or cavity in its trunk, about twenty feet above the ground, which could easily be seen. He brought the attention of the then tree warden, since deceased, to the condition of the tree, and the warden agreed to look after it, but he never did. In 1923, the plaintiff spoke to a member of the board of selectmen in regard to the tree, and was told that the tree was in pretty good condition and that the plaintiff had no right to cut or remove it. In the spring of 1925, the petitioner spoke to the then tree warden about the condition of the tree who told him he would look into the matter, but he never did. In 1926, the plaintiff stated to the road superintendent of the defendant town that the tree was dangerous and asked him to see about taking it down. The road superintendent promised to report it to the board of selectmen and see what they would do about it. Other than the tree wardens, none of the town officials above referred to ever had anything to do with the care of trees, except to investigate when trees were reported in bad condition and bring the matter to the attention of the tree warden. No public hearing in respect to the cutting, trimming or retention of the shade tree was ever called or held in accordance with the provisions of G. L. c. 87, § 3.

On the evening of October 12, 1927, during a severe but not unusual storm of wind and rain the tree, on account of its decayed condition, was blown over upon the dwelling of the plaintiff causing damage to the house, the furniture, and other articles within the house. Prior to the blowing over of the shade tree no...