Valvoline Oil Co. v. Inhabitants of Town of Winthrop

• Decision Date: 12 April 1920
• Parties: VALVOLINE OIL CO. v. INHABITANTS OF TOWN OF WINTHROP.
• Court: United States State Supreme Judicial Court of Massachusetts Supreme Court

235 Mass. 515

126 N.E. 895

VALVOLINE OIL CO.

v.INHABITANTS OF TOWN OF WINTHROP.

Supreme Judicial Court of Massachusetts, Suffolk.

April 12, 1920.

Appeal from Municipal Court of Boston, Appellate Division.

Action by the Valvoline Oil Company against the Inhabitants of the Town of Winthrop, resulting in finding for plaintiff, the case being reported to the appellate division of the municipal court of the city of Boston, which vacated the finding, and ordered judgment for defendant, and plaintiff appeals. Order of the appellate division reversed, and judgment ordered for plaintiff.A. M. Schwarz and S. A. Dearborn, both of Boston, for plaintiff.

Leon C. Guptill, Town Sol., of Boston, for defendant.

CROSBY, J.

This is an action to recover for damages to the plaintiff's wagon caused by the top of it coming in contact with the limb of a tree growing within the limits of Herman street, a public way in Winthrop. The tree is on the sidewalk; the street at that point is ‘26 feet wide from curb to curb and 40 feet wide from sidewalk to sidewalk’; the outer edge of the trunk of the tree is within 6 inches of the roadway, over which no portion of the trunk extends; the limb in question reaches over the roadway and grows from the trunk about 7 feet from the ground; the circumference of the trunk at its base is approximately 6 feet 4 inches, and of the limb at the trunk 3 feet 6 inches. The tree is about 50 years old, and at the time of the accident was in sound, healthy condition, including the limb in question. ‘It is not claimed by the defendant that the tree was set out by a road commissioner or by public officials.’ Accordingly the decision in Washburn v. Inhabitants of Easton, 172 Mass. 525, 52 N. E. 1070, is not applicable. It is agreed that the plaintiff duly notified the defendants of the time, place and cause of the accident.

The laws relating to public shade trees were codified and amended by St. 1915, c. 145; under the statute all trees within the limits of a highway are public shade trees. Section 2.

Except as provided in section 5,¹ public shade trees shall not be trimmed or removed in whole or in part by any person other than the tree warden or his deputy, except upon a permit in writing from the tree warden, nor shall they be cut down or removed by the tree warden or his deputy or other person without a public hearing after notices posted as prescribed by the statute and after authority granted by the tree warden therefor. Under section 5, if ordered by the mayor and aldermen, selectmen, road commissioners or highway surveyor, it is the duty of the tree warden to trim or cut down trees and bushes if they shall be deemed to obstruct, endanger, hinder or incommode persons traveling on the highway. It is further provided in section 5 that:

‘Nothing contained in this act shall prevent the trimming, cutting or removal of any tree which endangers persons traveling on a highway. * * *’

The part of section 5 last quoted cannot be construed as authorizing public officials other than tree wardens and their deputies to trim or remove a tree which endangers persons traveling on a highway. The care, maintenance, trimming and removal of shade trees in highways have been the subject of legislative action for several years, and their control is vested in the tree wardens in cities and towns of the commonwealth, except so far as it is imposed on other officials by the charters of cities, by other legislative enactment, or by the ordinances of cities, or upon such officials as the city government shall designate for that purpose. The result of the legislation on this subject has been to place practically the entire control of such trees in tree wardens, and to leave little, if any, authority in other municipal officers. While the statute (section 5) provides that nothing in the act shall prevent the trimming, cutting or removal of a tree that endangers persons traveling upon a highway, this language must be construed in connection with other sections of the statute, including section 3. We construe the language in questionto mean that if a tree endangers persons traveling upon a highway it may be trimmed, cut, or removed by a tree warden or his deputy without notice and hearing, but no other person is empowered so to act.

It follows that the officials named in section 5 may order the tree warden to trim or cut down a tree if they believe it endangers, hinders or incommodes persons traveling on the highway, and it is the duty of the tree warden to carry out the order so given; but the power of the officials named is limited to ordering it to be removed by the tree warden. Under earlier statutes it was held that a surveyor of highways had no authority summarily to cut down a shade tree standing in the highway which was in a defective and dangerous condition; but under Pub. Sts. c. 52, § 10, as amended by St. 1885, c. 123, § 2, was required to proceed to obtain the consent of the proper municipal authorities, meanwhile taking proper steps to prevent injury to travelers. Chase v. Lowell, 149 Mass. 85, 21...