Whiting v. Board of Pub. Works of Holyoke

• Decision Date: 20 September 1915
• Citation: 222 Mass. 22
• Court: United States State Supreme Judicial Court of Massachusetts Supreme Court
• Parties: SAMUEL R. WHITING v. BOARD OF PUBLIC WORKS OF HOLYOKE & others.

222 Mass. 22

SAMUEL R. WHITING v. BOARD OF PUBLIC WORKS OF HOLYOKE & others.

Supreme Judicial Court of Massachusetts, Hampden.

September 20, 1915

June 21 1915.

Present: RUGG, C.

J., BRALEY, DE COURCY, CROSBY, & CARROLL, JJ.

Shade Trees. Holyoke. Municipal Corporations, Board of public works. Words, "Care."

By the provisions of the revised charter of Holyoke contained in St. 1896, c 438, Section 37, the board of public works of that city were given the powers of road commissioners, which include the care of shade trees in highways with the power to cut down and remove any tree which shall be deemed to obstruct, endanger, hinder or incommode persons travelling on the highway, and this power was enlarged by St. 1915, c. 145, Section

5, which applies to the city of Holyoke, and which does not require the public notice and hearing before an order for such removal can be passed that formerly were required by R.L.c. 51 Section 10.

BILL IN EQUITY filed in the Superior Court on May 25, 1915, seeking to enjoin the board of public works of the city of Holyoke from ordering the city forester to cut down a certain elm tree in front of the plaintiff's land on Northampton Street in Holyoke, and to enjoin the city forester from obeying such order, the mayor of Holyoke also being made a defendant.

The case was heard by Aiken, C. J., without a jury. He found that the defendants the board of public works had found and that it was their opinion that the tree in question endangered persons travelling on the highway and, further, that it obstructed, endangered, hindered and incommoded persons travelling thereon, and that therefore they were about to cut down or remove, or to order the city forester to cut down or remove the tree in question, and that the city forester, thus ordered to remove the tree, would do so. He found also that no hearing had been held by the board of public works or by the city forester under the provisions of St. 1915, c. 145, Section 3, nor had any notice of a hearing been given.

The Chief Justice ruled, as a matter of law, that in the city of Holyoke the mayor and aldermen were the only board or officials in that city who could, without a hearing under the provisions of the section named, order the removal or remove the tree in question, and that therefore the plaintiff was entitled as a matter of law to the injunction granted. The defendants appealed. The material statutes are quoted and described in the opinion.

The case was submitted on briefs. A. L. Green, for the defendant.

T. D. O'Brien, for the plaintiff.

BRALEY, J. We assume on the record that the tree in question is a shade tree belonging to the plaintiff, whose premises abut on the public way where the tree stands. The authority of the board of public works to order its removal is derived from the St of 1896, c. 438, which is the revised charter of the city of Holyoke. By Section 37, "The board of public works shall have cognizance, direction and control: (a) Of the construction, location, repair, care and lighting of streets, ways and sidewalks; (b) of the construction, alteration, repair and care of public buildings; (c) of the construction, alteration, repair and care of main drains or common sewers; (d) of the construction, alteration, repair, care and maintenance of public bridges; (e) of the care, superintendence and management of the public grounds, except public parks, belonging to said city, and of the shade and ornamental trees growing therein. The said board may require that no person or corporation authorized by the board of aldermen to dig up any public street or sidewalk in said city shall begin such digging before furnishing to such board of public works security satisfactory to them to restore such streets or sidewalks to their former condition. The said board of public works, except as herein otherwise provided, shall have exclusively the powers and be subject to the liabilities and penalties imposed by law upon road commissioners of towns."

While the word "care" means ordinary and not specific repairs Simpson v. North Adams, 174 Mass. 450 , and a tree standing within the location never has been recognized as forming part of the construction of the highway, Chase v. Lowell, 149 Mass. 85 , and Wright v. Chelsea, 207 Mass. 460, (where the various enactments concerning the preservation and removal of shade trees before St. of 1915, c. 145, are collected and reviewed,) the board is also given the powers of road commissioners. By the St. of 1893, c. 423, Section 23, in force when the charter was adopted, road commissioners in all matters concerning streets, ways, bridges, monuments at the terminations and angles of roads, guide posts, sidewalks and shade trees were given the powers of selectmen and surveyors of highways. McManus v. Weston, 164 Mass. 263 . And by the St. of 1885, c. 123, Section 2, which is applicable to cities as well as towns, a tree within the public ways could not be cut down or removed except by "The officer appointed to have the care of the trees" when ordered by vote of the mayor and aldermen, selectmen or road commissioners, passed after public notice and hearing. The St. of 1885, c. 123, Section 2, and St. of 1893, c. 423, Section 23, were...