Minnie E. Skinner v. Hugh Buchanan

• Decision Date: 11 May 1928
• Citation: 142 A. 72,101 Vt. 159
• Parties: MINNIE E. SKINNER v. HUGH BUCHANAN ET AL
• Court: Vermont Supreme Court

142 A. 72

101 Vt. 159

MINNIE E. SKINNER v. HUGH BUCHANAN ET AL

Supreme Court of Vermont

May 11, 1928

January Term, 1928.

Municipal Corporations---Limitation of Powers of Tree Warden under G L. 4144---Necessity That Tree Warden Comply with Provisions of Statute Respecting Cutting of Public Shade Trees---Official Capacity and Good Faith Alone Insufficient as Defense to Action for Wrongful Cut- ting of Public Shade Trees---Necessity of Public Hearing under G. L. 4150 Before Cutting or Removing Public Shade Trees---Enforcement of Rights of Owner of Lot Abutting on Street Not Dependent on Ownership of Fee of Street---Property Rights of Owner of Lot Abutting Street in Shade Trees Therein---Measure of Damages for Unlawful Cutting of Such Shade Trees.

1. Although by G. L. 4144 et seq., shade trees within limits of public way or place in village are to be deemed public shade trees, and, with exception to those in public parks and places under control of park commissioners, are under care and control of village's tree warden, latter cannot justify cutting and removal of such trees merely because of his official position and that he acted in good faith believing the trees dangerous to public, where he failed to comply with statutory requirements of G. L. 4150 respecting a public hearing thereon, and violated the statutory inhibition against action without such hearing.

2. When way and manner in which municipal officers shall do certain things respecting matters entrusted to their care and control is expressly prescribed by statute, a person failing to comply therewith cannot justify his conduct merely by showing that he is a municipal officer and acted in good faith.

3. In action against tree warden of village by owner of lot abutting street for cutting and removing two shade trees therein in front of his premises, claim of tree warden that his decision as to advisability of cutting or removing tree was made final by G. L. 4150, hence that failure to comply with statute respecting public hearing was of no consequence held untenable, since such hearing might cause warden to reach different conclusion, and, also, because under Acts 1921, No. 108, his decision is no longer final, but may be reviewed by selectmen or trustees upon request in writing of party in interest.

4. Enforcement of certain rights, which owner of lot abutting on a public street or highway has therein as against a wrongdoer held not to depend upon whether fee to street or highway is in public or in abutting owner.

5. Owner of lot abutting on street, held to have a property right to shade trees in front of his premises, sufficient to enable her to maintain action for damages against tree warden who cut and removed them without complying with statutory provision for hearing in relation thereto, even though fee of street was in public, basis of recovery being injury resulting to abutting property thereby.

ACTION OF TORT by owner of lot abutting village street for cutting of shade trees therein in front of his premises. Answer setting up that one of defendants was trustee and tree warden of village and in that capacity caused trees to be cut by other two defendants. Trial by jury at the September Term 1927, Orleans County, Chase, J., presiding. Verdict and judgment for the plaintiff. The defendant excepted. The opinion states the case.

Judgment affirmed.

E. A. Cook for the defendants.

Lee E. Emerson for the plaintiff.

Present: WATSON, C. J., POWERS, SLACK, and MOULTON, JJ.

OPINION

SLACK

This action is to recover damages which plaintiff claims to have sustained by reason of the cutting of two shade trees, a maple and a poplar, that formerly stood in front of premises owned and occupied by her, which premises abut the easterly line of Maple Street in the village of Orleans, but do not include any part of that street. At the close of all the evidence defendants moved for a directed verdict on two grounds which, in effect, were: (1) That in cutting said trees defendant Buchanan was acting within the scope of his authority as tree warden of said village and the other two defendants, Milo and Henry Whiting, were acting under the order and direction of Buchanan; and (2) that plaintiff had not shown such property right in said trees as entitled her to recover. The motion was overruled, to which defendants excepted.

It appears from the printed case that at the time of the acts complained of Buchanan and E. E. Doe and W. B. Dean were the trustees of said village, and that Buchanan was "one" of the tree wardens of said village. We assume, as was stated in argument, that Doe and Dean were the other tree wardens, although this does not appear of record, and in our view of the case is immaterial. It further appears that in what Buchanan did he acted in good faith and without malice; that it was his opinion that the trees in question were dangerous to the public in that the maple was rotting and had decayed branches, and the poplar was a nuisance for the reason that its roots grew into and stopped up the sewers and made it necessary to dig up and relay the same. It does not appear, nor is it claimed, that any further or different action respecting the cutting of such trees than that already stated was taken by the municipality or any of its officers.

Shade trees within the limits of a public way or place are declared by G. L. 4144 to be deemed public shade trees; and such trees, except those in public parks and places under the control of park commissioners, are, for certain purposes, express or implied, placed under the care and control of the tree warden of the municipality for which he is elected. G. L. 4144 et seq. But the same statute from which tree wardens derive their authority expressly provides the way and manner in which such authority shall be exercised in certain instances. For instance, G. L. 4150 after providing for the cutting and removal of public shade trees by a tree warden "after public hearing thereon at some suitable time and place, due notice of such hearing having been posted in two or more public places in such town or village and upon the tree in question" provides that "a public shade tree within the residential part of a town or incorporated village shall not be cut, except for trimming, nor removed by a tree warden, without a public hearing as aforesaid," etc. It is not claimed that this statute was complied with, or that there was any attempt so to do.

The defendants insist that since Buchanan was a duly elected tree warden for the village of Orleans, and as such was clothed with certain authority respecting the public shade trees of that municipality, they are not answerable for the acts complained of even though the statutory requirement respecting a public hearing was not compiled with, and the statutory inhibition against action without such hearing was positively violated. In support of this contention they cite Bates v. Horner, 65 Vt. 471, 27 A. 134, 22 L.R.A. 824; Daniels v. Hathaway, 65 Vt 247, 26 A. 970, 21 L.R.A. 377; and Robinson v. Winch, 66 Vt. 110, 28 A. 884. Those cases do not go far enough to avail defendants. They hold that municipal officers are not liable to private persons for their conduct, whether of omission or commission, if they keep within the scope of their official duties and authority; and such is the well-nigh universal rule. The trouble here is Buchanan did not keep within the scope of his official duties and authority. His authority, so far as the cutting and removal of public shade trees was concerned, was expressly defined and limited by statute, which statute instead of attempting to observe he directly violated. When the way and manner in which municipal officers shall do certain things respecting matters entrusted to their care and control is expressly...