Plesko v. Allied Inv. Co.

• Citation: 107 N.W.2d 201,12 Wis.2d 168
• Parties: Janet M. PLESKO et al., Respondents, v. ALLIED INVESTMENT CO., a Wis. corporation, Appellant, City of Milwaukee, Respondent.
• Decision Date: 10 January 1961
• Court: United States State Supreme Court of Wisconsin

Page 201

107 N.W.2d 201

12 Wis.2d 168

Janet M. PLESKO et al., Respondents, v. ALLIED INVESTMENT CO., a Wis. corporation, Appellant, City of Milwaukee, Respondent.

Supreme Court of Wisconsin.

Jan. 10, 1961.

Michael J. Dunn, Carl F. Schetter, Milwaukee, for appellant.

Donald R. Hunter, Kersten & McKinnon, Milwaukee, for plaintiffs-respondents.

John J. Fleming, City Atty., John F. Kitzke, Asst. City Atty., Milwaukee, for defendant-respondent.

FAIRCHILD, Justice.

The complaint does not expressly allege that Allied Investment Company owns the 'tree border' between the sidewalk and the curb where the elm tree stood. Allied appears to concede, however, that but for the effect of certain ordinances upon which it relies, it owns the fee to the center of the street subject to the city's easement for highway purposes.

The circuit court considered that the case is ruled by Brown v. Milwaukee Terminal R. Co., 1929, 199 Wis. 575, 224 N.W. 748, 227 N.W. 385. In that case, the plaintiff, who was using the sidewalk, was injured by the fall of a dead and decayed tree which stood in the tree border between the sidewalk and the curb. The defendant abutting owner alleged the existence of city ordinances investing the city with full control of the tree. Upon reargument, it was ultimately held that, 'The complaint alleges that the tree which fell and injured the plaintiff became 'dangerous to those using such public sidewalk,' and that defendant, with notice and knowledge of that fact, 'permitted said tree to remain' in a condition which endangered the safety of travelers. These allegations state facts which entitle plaintiff to damages for the maintenance of a nuisance.' 199 Wis. at page 590, 227 N.W. at page 386.

The ordinances considered by the court in that case (199 Wis. at page 584, 224 N.W. at page 751) prohibited the planting, pruning, spraying, or removal of a living tree in a public highway without a permit; prohibited interference with park employees in planting, pruning, spraying, or removing trees in the tree border; and required removal of a tree on or near a sidewalk if, in the opinion of the commissioner of public works, it might fall upon any sidewalk, street, or building.

With respect to these ordinances, the court said at page 591 of 199 Wis., at page 386 of 227 N.W.:

'The ordinances of the city of Milwaukee regulating the planting and care of shrubs and trees in the public streets do not relieve the defendant of liability for the maintenance of a nuisance. They give the city the right to remove such a dead tree. But they in no way limit the power or affect the duty of the defendant to remove this dead tree which was clearly its property, although standing within the limits of the public street. Andrews v. Youmans, 78 Wis. 56, 58, 47 N.W. 304. The defendant had absolute domination over this dead tree with the power to remove it at any time. The law imposes upon the defendant the same liability for maintaining it as a nuisance that it would have imposed upon it if the tree had grown on its lot adjacent to the sidewalk.'

Allied points to ordinances somewhat different from those considered in the Brown decision. They are:

Ordinance No. 78 adopted May 27, 1878:

'The width of the sidewalks on each side of Cass Street, from Division to Ogden Street in the First Ward of the City of Milwaukee is hereby determined and permanently established at twenty-two and one-half feet.'

Charter Ordinance No. 40 adopted March 9, 1931, authorized appointment of a city forester who might plant, remove, and care for all trees and shrubs in tree borders and in center and side plots of boulevards and parkways; provided for notice to the lot owner of any proposal to plant or remove any living shade tree, and for hearing thereon, after which the city forester, subject to the direction of the board of park commissioners, would abandon or proceed with the work as he believed the best interests of the public required;

Charter Ordinance No. 42 adopted April 20, 1931, provided that the cost of planting, renewing, and removing trees and shrubs in the tree border should be chargeable and assessed to the abutting lot, and that after January 1, 1932, the cost of trimming, spraying, caring for, and maintaining trees and shrubs should not be so assessed, but charged to city funds;

Charter Ordinance No. 89 adopted February 1, 1937, transferred the duties of the city forester to the department of public works;

Charter Ordinance No. 98, adopted March 14, 1938, authorized the commissioner of public works to plant, transplant, remove, and care for all trees and shrubs in tree borders, or in center and side plots according to his belief as to the best interests of the public, and provided that the cost of planting, renewing, removing, and maintaining trees or shrubs shall not be chargeable to, or assessed upon the abutting lot unless otherwise ordered by the common council.

Sec. 4-1 of the city ordinances prohibits planting, pruning, or removal of any living tree or shrub in a public highway without written permit of the commissioner. Sec. 4-2 provides that no shade or ornamental tree or shrub shall be planted in any public highway until such planting has been approved by the commissioner, and a permit granted. Sec. 4-3 provides, among other things, that all trees 'liable' to fall on a sidewalk or street shall be deemed a public nuisance. Sec. 4-15 provides that the commissioner shall notify the owner to remove or otherwise care for trees which are a public...