Morris v. Salt Lake City

• Decision Date: 17 March 1909
• Docket Number: 2000
• Citation: 101 P. 373,35 Utah 474
• Court: Utah Supreme Court
• Parties: THOMAS MORRIS, Respondent, v. SALT LAKE CITY, Appellant, and S. BIRCH, Respondent

101 P. 373

35 Utah 474

THOMAS MORRIS, Respondent, v. SALT LAKE CITY, Appellant, and S. BIRCH, Respondent

No. 2000

Supreme Court of Utah

March 17, 1909

On Rehearing, April 22, 1909.

APPEAL from District Court, Third District; Hon. M. L. Ritchie Judge.

Action to recover damages for injury to property by Thomas Morris against Salt Lake City and S. Birch. From a judgment for plaintiff against Salt Lake City it appeals, and from a judgment for defendant S. Birch plaintiff appeals.

Judgment against defendant Salt Lake City AFFIRMED.

Judgment in favor of defendant Birch REVERSED AND REMANDED.

H. J Dinniny and P. J. Daly for appellant, Salt Lake City.

APPELLANT SALT LAKE CITY'S AUTHORITIES.

There can be no question but that the city has absolute control over the streets of the city, and that it could have removed the trees entirely without notice to the plaintiff, and such action would have made it liable only in case of abuse of its authority, and when the city determined to make this improvement in the way it did, its conclusion was final, and not subject to review by the courts except for abuse of its power. (Smith on Municipal Corp., vol. 2, sec. 1311; Case v. Oshkosh, 51 N.W. 560 [Wis.]; Murray v. Norfolk, 21 N.E. 757 [Mass.]; Mt. Carmel v. Shaw, 39 N.E. 587 [Ill.]; Tate v. Greensboro, 24 L.R.A. 671 [N. C.] A person is not responsible for the acts of an independent contractor to whom he has let a particular job of work, when he reserves to himself no control over the work except the right to see that it conforms to a particular standard. In such case the doctrine of respondeat superior does not apply. (5 Thompson on Neg., 5803, 5804; Williams on Mun. Liab., sec. 29; 3 Abbott Mun. Corp., sec. 975; Water Supply Co. v. White, 124 Ind. 376, 24 N.E. 747; Boherer v. Harness Co., 19 Ind.App. 489, 49 N.E. 300; Ryan v. Cuner, 64 Ind. 345; Zimmerman v. Barer, 64 Ind.App. 607, 39 N.E. 299; Blake v. Ferriss, 5 N.Y. 48; Pierpont v. Fowlers, 72 N.Y. 211; Clark v. Fry, 8 Ohio 358; Card v. Hartman, 29 N.Y. 591; Storrs v. Utica, 17 N.Y. 104; Cannon v. Railway, 4 Ohio 399; Cosgrove v. Morgan, 5 Duer 495; Water Co. v. Wan, 16 Wall. 566; Mayor v. Frieze, 3 Hill 616; Dygert v. Schenck, 23 Mich. 446; Vanderpool v. Hansen, 28 Barb. 196; Matheny v. Wolffs, 2 Div. 137; Milford v. Holbrook, 9 Allen 17; Charlock v. Freel, 125 N.Y. 418; Massey v. Coates, 39 So. 142 [Ala.]; Willje v. Silverman, 102 N.Y.S. 783; Boswell v. Laird, 8 Cal. 469; Railway v. Kimberly, 87 Ga. 161; Kahon v. Brock, 144 Mass. 517; Gorham v. Gross, 125 Mass. 232; McCafferty v. Railway, 61 N.Y. 178; Edwinson v. Railway, 111 Pa. 316.)

M. E. Wilson for respondent Morris.

Stephens & Smith for respondent Birch

APPELLANT, AND RESPONDENT, MORRIS AUTHORITIES.

Cutting and destroying the roots and support of said shade trees, and permitting the same to remain standing in front of the plaintiff's property, unsupported in any manner whatsoever, or at all, without taking any precaution to prevent the same from falling or being blown over upon the plaintiff's residence, and in a condition where the same were liable to be blown down by a not infrequent gale and so that if the same were blown down they would fall upon and injure the plaintiff's property, constituted the creation and maintenance of a private nuisance, and the defendants occupied the position of joint tortfeasors, and the plaintiff may recover against either or both of them in damages. (Cork v. Blossom, 162 Mass. 330, 26 L.R.A. 256; Johnson v. Electric Co. [La.], 29 So. 223; 1 Thompson on Negligence, sec. 685; 5 Thompson on Negligence, sec. 5803, p. 289; Carman v. Railway, 4 Ohio St. 399; Kollock v. Madison, 84 Wis. 458, 54 N.W. 725.) The defendant Birch and the defendant city jointly created the condition complained of, and were in joint control thereof at the time of the injury complained of, consequently the contract existing between them, or the directions given by the city to the contractor Birch, or the fact that Birch received no directions from said defendant city to remove said trees, are as between this plaintiff and said defendant Birch entirely irrelevant and immaterial, and in no respect a defense to the action against said Birch. (1 Thompson on Negligence, secs. 685, 1159; Mechem on Agency, sec. 572; Ellis v. McNaughton, 76 Mich. 237; Baird v. Shipman, 7 L.R.A. 128, 132 Ill. 16; Mayer v. Building Co., 28 L.R.A. 433, note.) Neither Birch nor the city had any right to remove the trees until such action was required by public necessity; and as preliminary to their removal where it was required by public necessity, the owner should have been given notice of such fact and an opportunity to remove them himself, otherwise the municipality and contractor are liable as trespassers. (Stretch v. Cassopolis [Mich.], 51 L.R.A. 345; Miller v. Railway, 125 Mich. 172; 51 L.R.A. 957; Clark v. Dasso, 34 Mich. 86.)

Whether removal of the trees was required by public necessity could not be conclusively determined by the municipality, that question must be submitted to a jury under the guidance of the court. The determination of it by the officers of a city can have no effect whatever upon its ultimate disposition. "It is for the courts." (Avis v. Vineland, 56 N. J. Law 474, 23 L.R.A. 685; See also Frostburg v. Wineland, 98 Md. 239; 1 A. and E. Ann. Cases, 783. [See note]. Whether the fee of the land, whereon the street is located, is in the city or in the abutting owner, is of no importance. (City of Paola v. Wench [Kan.], 98 P. 775; Lovejoy v. Campbell, 16 S. Dak. 231; sec. 3508 Revised Statutes of Utah; 2 Dillon Mun. Corp., 656-664; 2 Cooley on Torts, 656.)

FRICK, J. STRAUP, C. J. and McCARTY, J., concur.

OPINION

FRICK, J.

This is an action for damages, which, it is alleged, were caused to plaintiff's property through the alleged unnecessary and negligent cutting of the roots of his trees standing and growing in a public street in front of his dwelling. The alleged injury and damages arose primarily out of the laying of a cement or concrete sidewalk by the defendant city in front of plaintiff's property. The defendant Birch was made a party to the action as a contractor doing the work for the city under a contract with it.

The city disclaimed liability upon various grounds, one of which is that the defendant Birch was an independent contractor. Without now pausing to decide whether, under the stipulations of the contract in question, Birch was or was not an independent contractor, we shall, in so far as the city is concerned, assume, for the purposes of this decision, that he was such, and give the city whatever benefit it may be entitled to by reason of that relation.

The plaintiff alleged that in constructing the sidewalk in question the roots of his trees were unnecessarily cut and destroyed, by reason whereof the trees were left without support, and that the trees were wrongfully and negligently permitted to stand without any support, in consequence of which eight of plaintiff's trees were, by the wind, blown over onto his dwelling house and fence causing great injury and damage thereto. It was made to appear at the trial: That the trees were a species of Canadian poplar; that they had been planted some sixteen or eighteen years in front of plaintiff's dwelling in the street and were standing and growing from nineteen to twenty-eight inches from the outer edge of the proposed sidewalk as completed; that the trees were from sixty to seventy feet in height with interlacing branches; that in the street and between the outer margin of the walk and the street proper there was an irrigating ditch, upon the bank of which the trees stood; that the roots of the trees grew mostly in the opposite direction from this ditch, or toward the house, and were near the surface and crossed the strip of ground where the sidewalk was placed; that in preparing the ground for laying the sidewalk, which was six feet in width and four inches thick, and was practically laid on the surface of the ground to conform to the grade established by the city, the roots of the trees were cut by the contractor. Plaintiff's testimony was to the effect that some of the roots that were cut were from ten to eleven inches thick, and that about all were cut which crossed the space where the sidewalk was laid, and that the roots were cut to the depth of from twelve to fourteen inches below the natural surface of the soil. The evidence on behalf of plaintiff further tended to show: That, after the roots had been cut as aforesaid for from four days to a week, a considerable wind arose one morning, the force of which caused all of the trees to fall, and that four or five of them fell onto plaintiff's dwelling, and the rest fell into his dooryard; that the trees which fell on the house broke and damaged the roof, knocked down two chimneys, and injured the walls and plastering of the house, while the rest broke the picket fence in front of the house and caused other damage about the premises. Plaintiff and another witness also testified that after the trees were blown over they examined the roots and found that about all of them of any considerable size leading toward the house, and which gave support to the trees, had been cut. That there were few, if any, roots leading in the opposite direction, by reason of the irrigating ditch, which was considerably lower than where the trees stood. There was some evidence also tending to show who was engaged in laying the sidewalk, that quite a number were engaged, and that a man representing the city was present some of the time (presumably an inspector), and that some members of the city council visited the premises shortly after the trees had been blown down. After proving the condition of the house and fence before...