Weller v. McCormick

Citation19 A. 1101,52 N.J.L. 470
PartiesWELLER v. MCCORMICK.
Decision Date09 June 1890
CourtNew Jersey Supreme Court

(Syllabus by the Court.)

Error to circuit court, Middlesex county; before Justice SCUDDER.

Argued February term, 1890, before the Chief Justice and REED and DIXON, JJ.

Chas. T. Cowenhoven, for plaintiff. Alan Strong and Robert Adrain, for defendant.

DIXON, J. When the above-entitled cause was before this court at June term, 1885, on a rule certified by the Middlesex circuit, the circuit was advised to set aside the verdict for the plaintiff on the ground that nothing had been shown from which it could legally be inferred that there rested on the defendant any duty with regard to the shade tree, by the falling of whose branch the plaintiff was injured. The tree strood near the curb in one of the streets of New Brunswick, and it appeared that since 1863 the city had had power to make ordinances and rules for directing and regulating the planting, rearing, trimming, and preserving of ornamental shade trees in the streets, parks, and grounds of the city. "Whether the tree in question had been planted under this authority was not shown, but the only fact to connect the defendant with it was that it stood in front of his property. Under these circumstances, we decided that the testimony gave no more support to an inference that the tree belonged to the defendant than it did to an inference that it belonged to the city, and that, therefore, the plaintiff had not adduced a preponderance of evidence to establish the liability of the defendant. Upon a retrial at the Middlesex circuit in December, 1888, proof was made or offered that the tree was planted before 1855 by a former owner of the defendant's premises; that he and his successors in title, down to the defendant, had cared for the tree, and that the same title had passed to the defendant in September, 1881, and remained in him until after the accident, which occurred January 21, 1883; that the city of New Brunswick had adopted no rules or ordinances for the planting, rearing, trimming, or preserving of trees in the streets, except an ordinance, passed after 1863, directing the position in which trees might thereafter be set out, and forbidding any person except the owner to cut down, destroy, break, or in any manner injure trees or shrubs standing in any public street or highway. Nevertheless the plaintiff was nonsuited, in supposed compliance with the judgment of this court.

The facts presented at the second trial render the case essentially different from its former aspect. It now appears that the tree was planted by a private person upon his own property, and, it is to be assumed, chiefly for his own ends. Although the public had the easements of a highway in this property, yet the planting of the tree was perfectly lawful. By devolution of title from the person who planted the tree, the defendant became its owner, and acquired control of it. His right of control might, indeed, have been regulated by the municipal authorities, by virtue...

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33 cases
  • City of Birmingham v. Graves
    • United States
    • Alabama Supreme Court
    • 14 Junio 1917
    ... ... 348, 37 N.E. 710, 24 ... L.R.A. 724, 46 Am.St.Rep. 578; Chase's Case, 81 Wis. 313, ... 51 N.W. 560, 15 L.R.A. 553, 29 Am.St.Rep. 898; Weller's ... Case, 52 N.J.Law, 470, 19 A. 1101, 8 L.R.A. 798; Bigelow ... v. Whitcomb, 72 N.H. 473, 57 A. 680, 65 L.R.A. 676; ... Graves v. Shattuck, ... 811, 64 L.R.A. 627, 1 Ann.Cas. 783; Bronson v. Tel ... Co., 67 Neb. 111, 93 N.W. 201, 60 L.R.A. 426, 2 Ann.Cas ... 639; Weller v. McCormick, 52 N.J.Law, 470, 19 A ... 1101, 8 L.R.A. 798; Miller v. Detroit Co., 125 Mich ... 171, 84 N.W. 49, 51 L.R.A. 955, 84 Am.St.Rep. 569; notes, ... ...
  • Wallace v. United States, 10036.
    • United States
    • U.S. District Court — Western District of Washington
    • 1 Octubre 1926
    ...634; Mentz v. Schieren, 36 Misc. Rep. 813, 74 N. Y. S. 889; McCauley v. Norcross, 155 Mass. 584, 30 N. E. 464; Weller v. McCormick, 52 N. J. Law, 470, 19 A. 1101, 8 L. R. A. 798; Schnizer v. Phillips, 108 App. Div. 17, 95 N. Y. S. 478; Hammarberg v. St. Paul & T. Lumber Co., 19 Wash. 537, 5......
  • Hollus v. Amtrak Northeast Corridor
    • United States
    • U.S. District Court — District of New Jersey
    • 20 Septiembre 1996
    ...of Torts § 363(2)). The Narsh court also cited Weller v. McCormick, 47 N.J.L. 397, 1 A. 516 (N.J. 1885) and Weller v. McCormick, 52 N.J.L. 470, 19 A. 1101 (N.J.1890), in which the "urban tree" doctrine was applied to the case of a pedestrian who was injured by the fall of a dead limb from a......
  • Sims v. City of Newark
    • United States
    • New Jersey Superior Court
    • 28 Junio 1990
    ...right of control of the tree if the owner failed to exercise due care to prevent the tree from becoming dangerous. Weller v. McCormick, 52 N.J.L. 470 (S.Ct.1890). Annotation, "Liability for Tree Falling on Highway," 94 A.L.R.3d 1160, 1179 Annotation, "Liability--Fall of Tree or Limb," 54 A.......
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