Weller v. McCormick

Citation1 A. 516,47 N.J.L. 397
PartiesWELLER v. MCCORMICK.
Decision Date27 November 1885
CourtNew Jersey Supreme Court

In case. On rule to show cause why a new trial should not be had. Certified from Middlesex circuit.

Chas. T. Cowenhoven, for plaintiff.

R. Adrian and Alan H. Strong, for defendant.

DIXON, J. On September 27, 1881, the defendant became the owner of a hotel on the corner of Somerset and George streets, in the city of New Brunswick; his title extending to the middle of the street. On the sidewalk of George street in front of his premises an elm tree was growing, and on January 21, 1883, the plaintiff, while passing along the sidewalk, was injured by a limb that fell from the tree. The plaintiff sued the defendant for the damages so sustained, and recovered on the theory that the facts above stated created a duty on the part of the defendant to use proper care towards trimming the trees, so that travelers would not be endangered thereby. Whether these circumstances give rise to such a duty is the first question discussed before us on the motion for a new trial. It must be conceded that, ordinarily, when a person, for his private ends, places or maintains, in or near a highway, anything which, if neglected, will render the way unsafe for travel, he is bound to exercise due care to prevent its becoming dangerous. If, therefore, from the fact that the tree in question stood on a portion of George street owned by the defendant, it is to be inferred that the tree was placed or maintained there by him for his private benefit, it would follow that the alleged duty existed. But we think that in the present case this fact is not sufficient to warrant such an inference against the defendant.

Shade trees in the streets of a city are of public as well as private utility. They protect and ornament the way for public use, as they also do the adjoining property for private enjoyment. It is therefore clear that by virtue of the ordinary public right in highways the public may plant and maintain shade trees therein. Whether the legislature, to whom this power primarily belongs, has, in a given case, delegated it to a subordinate depends, of course, upon the terms by which authority is granted. In the charter of the city of New Brunswick the matter is not left in doubt. That instrument (P. L. 1863, p. 347, § 31) gives the common council power to make, modify, and repeal ordinances, rules, regulations, and by-laws for directing and regulating the planting, rearing, trimming, and preserving of ornamental shade trees in the streets, parks, and grounds of the city. It thus appears that since 1863 the municipality has had the power of planting and preserving shade trees in the streets; and therefore the presence of any such tree in a street may be attributed to the exercise of this power as well as to any other cause. Under these circumstances, the most that the plaintiff can properly claim to have proved is that the tree was planted or maintained either by the defendant for private purposes, or by the city for public purposes. This is inadequate to the necessities of the plaintiff's position; for a plaintiff must show by a preponderance of evidence, not that either the defendant or some disconnected third party is responsible, but that the defendant is responsible....

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13 cases
  • Stewart v. 104 Wallace Street, Inc.
    • United States
    • New Jersey Supreme Court
    • July 22, 1981
    ...The owner may also "use the adjacent sidewalk for stoops, areas, shutes, and other domestic and trade conveniences." Weller v. McCormick, 47 N.J.L. 397, 400 (Sup.Ct.1885); see State v. Mayor of Newark, 37 N.J.L. 415, 423 (E. & A. 1874), subject, of course, to the public's paramount easement......
  • Hollus v. Amtrak Northeast Corridor
    • United States
    • U.S. District Court — District of New Jersey
    • September 20, 1996
    ...highway." Id. at 208-09, 268 A.2d 46 (quoting Restatement (Second) 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 cas......
  • Sims v. City of Newark
    • United States
    • New Jersey Superior Court
    • June 28, 1990
    ...it from becoming dangerous. Narsh v. Zirbser Brothers, Inc. 111 N.J.Super. 203, 208, 268 A.2d 46 (App.Div.1970). In Weller v. McCormick, 47 N.J.L. 397, 1 A. 516 (Sup.Ct.1885) and Weller v. McCormick, 52 N.J.L. 470, 19 A. 1101 (Sup.Ct.1890) that doctrine was applied to impose liability when ......
  • Concho Const. Co. v. Oklahoma Natural Gas Co.
    • United States
    • U.S. Court of Appeals — Tenth Circuit
    • March 9, 1953
    ...to the right of the public generally to pass and repass, to travel on foot or with any kind of vehicle. * * *" 4 Weller v. McCormick, 47 N.J.L. 397, 1 A. 516, 518; Gabrielsen v. City of Seattle, 150 Wash. 157, 272 P. 723, 729, 63 A.L.R. 200; Lucas v. St. Louis & S. Ry. Co., 174 Mo. 270, 73 ......
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