Town of Hazlehurst v. Mayes

• Decision Date: 07 March 1904
• Citation: 84 Miss. 7,36 So. 33
• Court: Mississippi Supreme Court
• Parties: TOWN OF HAZLEHURST v. MYRA B. MAYES

36 So. 33

84 Miss. 7

TOWN OF HAZLEHURST v. MYRA B. MAYES

Supreme Court of Mississippi

March 7, 1904

March 1904

FROM the circuit court of Copiah county HON. DAVID M. MILLER Judge.

Mrs Mayes, appellee, was plaintiff in the court below; the town of Hazlehurst was defendant there. From a judgment in plaintiff's favor defendant appealed to the supreme court. The facts are stated in the opinion of the court.

Reversed and remanded.

J. S. Sexton, for appellant.

The town of Hazlehurst, being governed by chapter 93 of the Annotated Code, has the power under § 2932, "To grant the right for the erection of telegraph, electric light or telephone poles, posts and wires along and upon any of the streets, alleys or ways of the municipality, and change, modify and regulate the same. But such privilege shall not be exclusive."

Under § 2938, said town has power "to make all needful police regulations necessary for the preservation of good order and the peace of the municipality; and to prevent injury to, destruction of, or interference with public or private property."

Under § 2947 it has power "to exercise full jurisdiction in the matter of streets, sidewalks, sewers and parks; to open and lay out and construct the same; to repair, maintain, pave, sprinkle, adorn and light the same, " of all of which and other powers possessed by this municipal corporation, this court takes judicial notice under § 3038 of said chapter.

In the case of Mt. Carmel v. Shaw, 155 Ill. 37, the following quotation from the syllabus correctly announces the conclusion of the court, "Shade trees in the public streets of a city are the property of the municipality, and it has complete control over them, and may, therefore, destroy them, when necessary, in the progress of constructing a sidewalk."

By the act of incorporation, the city of Mt. Carmel had "power to lay out, establish, open, alter, widen, extend, grade, pave or otherwise improve its streets and sidewalks, and vacate the same."

The town of Hazlehurst, under the municipal code chapter, has all these powers and more. In other words, it has "full jurisdiction in the matter of streets, sidewalks, " etc.

In the case of Village of Hyde Park v. Durham, 85 Ill. the court said: "The corporate authorities are vested with complete control, as is every other municipal corporation, over its streets. They may contract or widen them whenever, in their opinion, the public good shall so require. Property owners purchase and hold subject to these powers, and they have no vested right to deny the widening, contrasting or otherwise improving any street."

Shade trees standing in a public street near the line of the sidewalk may be cut down and removed by the municipal officers in pursuance of the authority which the city possesses over its streets and sidewalks." Chase v. City of Oshkosh, 81 Wis., 313 (29 Am. St. Rep., 898, and note); Chase v. City of Oshkosh, 29 Am. St. Rep., 903.

R. N. & H. B. Miller, for appellee.

Nobody questions the right of the town to erect an electric light plant and string its wires on the streets nor its authority under the right of eminent domain to condemn the interest of plaintiff in the trees, and to cut them. But in the case of Stowers v. Postal Telegraph & Cable Co., 68 Miss. 559, this court held, "Whether the fee in a street is in the abutting owner or in the public, a municipal corporation cannot authorize a telegraph company to construct its line along a public street without first making compensation to such owner, since the line, being no part of the equipment of the street, but foreign to its use, is an additional servitude."

Adjacent landowners may lawfully use the space between the carriage way and the sidewalks for the growing of trees for ornament or use. Trees thus situated are in no sense nuisances, but private property specially protected by statute. Graves v. Shattuck, 35 N. H., 257; 69 Am. Dec., 536. The owner of land appropriated as a highway retains his exclusive right in trees and shrubs growing on the land so appropriated for every purpose not incompatible with the public right of way, and he may maintain an action against any individual who, not acting under statutory or official authority, destroys or removes the trees or shrubs standing or growing in the highway, unless they constitute an obstruction, hindrance or annoyance to travelers. Phifer v. Cox, 21 Ohio St., 248 (8 Am. Rep., 58).

Judge Cooper, quoting in this case from the case of Theobold v. L., N. O. & T. Ry. Co., 66 Miss. 279, says: "There is no difference in right (of an abutting owner) in cases where the owner of the abutting land owned the fee to the center of the street, and those in which the fee was in the public."

The above two cases, together with the case of Cassedy v. Telephone Co., 78 Miss. 666, absolutely settles and puts beyond disputation in Mississippi that the stringing of electric wires along a public street and trimming of trees in the sidewalk without first having condemned the property and made compensation to the owner, is an additional servitude, and an invasion of the abutting owner's right, for which he can maintain damages against the wrongdoer. It matters not what the law may be elsewhere, these cases settle the law of this case in Mississippi.

OPINION

TRULY, J.

The town of Hazlehurst, through its board of mayor and aldermen, decided to construct a municipal waterworks and electric light system. In the construction of this plant it became necessary to establish and locate a system of posts and wires over the streets of the town. In the course of this work the contractor who was installing the plant found that the wires were interfered with by shade trees planted along the sidewalks of the public streets. The difficulty being reported to the municipal authorities permission was granted the contractor and his employes to trim, whenever necessary, all trees which were on the line of the electric light wires. In so doing five shade and ornamental trees located between the sidewalk and the public street in front of appellee's residence were, contrary to her wishes, trimmed, and in consequence thereof their symmetry was marred, and their value as shade trees diminished. For this damage appellee sued, and the jury awarded her a verdict in the sum of $ 125. The appellant defended on two grounds: First, that the cutting was inflicted by the employes of an independent contractor, and that, therefore, the town was not liable; second, that this was a legitimate exercise of the power of the municipality in pursuance of the authority and jurisdiction granted it by law over the public streets of the town. Appellant asked that these two phases of its defense be presented to the jury by appropriate instructions, but these were by the court refused, and the case was at last submitted to the jury on the sole question of what amount of compensatory damages the appellee was entitled to recover.

The second contention presents the question of prime importance. By § 2947 of the code of 1892 all municipalities in this state operating thereunder are granted authority "to exercise full jurisdiction in the matter of streets, to open, lay out and construct the same; to repair, maintain, pave, sprinkle, adorn and light the same;" and by section 2964 the additional power is granted to towns "to provide for the lighting of streets, parks and public grounds, and the erection of lamps and lamp posts." The power of municipalities over...