Whiting v. Woods

• Decision Date: 20 September 1915
• Parties: WHITING v. WOODS et al.
• Court: United States State Supreme Judicial Court of Massachusetts Supreme Court

222 Mass. 22

109 N.E. 728

WHITING

v.WOODS et al.

Supreme Judicial Court of Massachusetts, Hampden.

Sept. 20, 1915.

Appeal from Superior Court, Hampden County; John A. Aiken, judge.

Suit by Samuel R. Whiting against John H. Woods and others to restrain public officials of the city of Holyoke from removing a tree standing in front of plaintiff's premises. Decree for plaintiff, and defendants appeal. Reversed.

Thos, C. Maher, City Sol., and A. L. Green, both of Holyoke, for appellants.

T. D. O'Brien, of Holyoke, for respondent.

BRALEY, J.

[2] 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 St. 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 maindrains or common sewers; (c) of the construction, alteration, repair and care of public buildings; (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, 54 N. E. 878), 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, 21 N. E. 233, and Wright v. Chelsea, 207 Mass. 460, 93 N. E. 840), where the various enactments concerning the preservation and removal of shade trees prior to St. 1915, c. 145, are collected and reviewed, the board is also given the powers of road commissioners. By St. 1893, c. 423, § 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, guideposts, sidewalks, and shade trees were given the powers of selectmen and surveyors of highways. McManus v. Weston, 164 Mass. 266, 41 N. E. 301,31 L. R. A. 174. And by St. 1885, c. 123, § 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 trees' when ordered by vote of the mayor and aldermen, selectmen or road commissioners, passed after public notice and hearing. St. 1885, c. 123, § 2, and St. 1893, c. 423, § 23, were codified in R. L. c. 51, § 10, and chapter 25, § 83. The material language used in this section of the charter had been interpreted in McManus v. Weston, 164 Mass. 263, 266, 41 N. E. 301,31 L. R. A. 174, and Simpson v. North Adams, 174 Mass. 450, 54 N. E. 878, and unless qualified it should have the effect given by the court. The words ‘except as herein otherwise provided’ do not curtail the powers conferred, as the other provisions of the charter do not reserve to the executive or legislative departments any control over the care or removal of trees in the highways of the city.

The board of public works therefore had all the powers of road commissioners, as if such powers had been specifically enumerated, unless St. 1915, c. 145, entitled ‘An act to codify and amend laws relative to public shade trees,’ which ‘in so far as it gives authority over trees and bushes' expressly repealed section 10 of chapter 51 of the Revised Laws deprived it of jurisdiction. The statute is as comprehensive as the title. It defines a public shade tree, and by section 3:

‘Except as provided in section five, public shade trees shall not be cut, trimmed or removed, in whole or in part, by any other person other than the tree warden or his deputy, whether such person is or is not the owner of the fee in the land on which such tree is situated, except upon a permit in writing from said tree warden, nor shall they be cut down or removed by the tree warden or his deputy or other person without a...