Stretch v. Village of Cassopolis

• Decision Date: 13 November 1900
• Citation: 125 Mich. 167,84 N.W. 51
• Court: Michigan Supreme Court
• Parties: STRETCH v. VILLAGE OF CASSOPOLIS.

84 N.W. 51

125 Mich. 167

STRETCH v. VILLAGE OF CASSOPOLIS.

Supreme Court of Michigan

November 13, 1900

Error to circuit court, Cass county; Orville W. Coolidge, Judge.

Action by Edith Stretch against the village of Cassopolis. From a judgment for the plaintiff, defendant brings error. Affirmed.

M. L Howell, for appellant.

Coy W Hendryx and Harsen D. Smith, for appellee.

MONTGOMERY, C.J.

The sole question which this record presents is whether a village, acting under the general incorporation act (Comp Laws, c. 87), may cut down and remove shade trees standing within the highway, and which have been planted and maintained by the abutting owner who owns to the center of the street, when such removal is without previous notice to the abutting owner to remove the trees. There is no question but that the abutting owner has the title to shade trees adjoining his premises. Cooley, Torts, 318, 372; Clark v Dasso, 34 Mich. 86; Rogers v. Randall, 29 Mich 41; People v. Foss, 80 Mich. 559, 45 N.W. 480. It is equally well settled, and is conceded by the learned counsel for the plaintiff, that the municipality may, when the public necessities appear to them to call for such action, require such shade trees to be removed. The question is whether, as preliminary to their removal by the public authorities, the owner should have notice of the fact that the public necessity requires the removal of the trees, and be given the opportunity to himself transplant them or remove them. The case of Clark v. Dasso, supra, answers this question in the following language: 'It is to be remembered that the trees are the property of the adjacent owner, who cannot lawfully be deprived of any species of property in the summary mode which was adopted in this case. If the trees must be removed, he may prefer the take them as living trees, and transplant them elsewhere, perhaps in suitable localities in the street; and he should not be compelled to cut them down when removal is preferred.' We are satisfied that this view applies with as much force in the present case as in Clark v. Dasso. No other view is consistent with ownership of the trees by the adjacent owner. True, this title is subservient to the public right, but the public right may well be exercised in a manner not to entail entire loss of property upon the owner. It may be true that the language quoted is dictum, but such has been understood to be the law for many years, and we discover nothing in the rule which imposes on the public authorities any great burden. The case of Wyant v. Telephone Co. is not inconsistent with this holding. In that case, which may be found at 81 N.W. 928, 47 L. R. A. 497, notice to the owner would furnish no opportunity to avoid the cutting of limbs. Whatever damage a tree might sustain by such cutting could not be obviated by the owner. Therefore notice to the owner would serve no purpose. In case of the destruction of the tree an entirely different consideration obtains. The owner who has notice of the public requirements is in a position to protect himself in a large part from damages. So clearly is this a valuable right that it has been held that a duty rests on the owner to protect himself from unnecessary damage; as in Commissioners v....