Zacharias v. Nesbitt
| Decision Date | 25 November 1921 |
| Docket Number | 22,503,22,504 |
| Citation | 185 N.W. 295,150 Minn. 369 |
| Parties | JOHN ZACHARIAS v. JOHN W. NESBITT; GEORGE A. CAMENT v. SAME |
| Court | Minnesota Supreme Court |
Two actions in the district court for Hennepin county, one to recover $24,800 and the other to recover $7,450 for injuries received from a falling tree. Defendant's demurrer to the amended complaint in the Zacharias case was overruled by Steele, J. The cases were tried together before Waite, J who when plaintiff rested at the close of the testimony denied defendant's motion for a directed verdict in each case, and a jury which returned a verdict for $3,250 and $900, respectively. From orders denying his motions for judgment notwithstanding the verdict or for a new trial defendant appealed. Reversed with direction.
Highway -- tree dangerous to travelers -- duty of abutting owner.
1. There is no legal duty resting on the servient fee owner, upon whose land is a duly established county road, to safeguard the traveler on such road against dangers from defects in growing trees standing within the limits of the road.
Not changed by notice to owner to remove trees.
2. The fact that the town board, in anticipating the grading of a roadway upon the right of way, gave notice to defendant to remove the trees thereon, could not place him under the legal duty to so do.
Carleton & Carleton and Kingman, Cross, Morley & Cant, for appellant.
Louis Solem and W. H. McDonald, for respondent.
During a windy April day a tree standing on defendant's land, but within the limits of a public highway in Hennepin county, fell across the traveled part of the highway, injuring severely two young men who then happened to drive past in an automobile. Each sued defendant. The actions were tried as one. Separate verdicts of substantial amounts were given the plaintiffs. Defendant appeals from the order denying his motion in the alternative for judgment notwithstanding the verdicts or a new trial.
South of defendant's land the Shakopee road runs east and west, and on the east thereof is the Highland road, also called County Road No. 134. The latter has existed for over 20 years as a duly laid out public highway, four rods wide. About 1,400 feet north of the Shakopee road, between the graded driveway and the west boundary of the Highland road the tree in question grew. It stood on ground owned by defendant subject to the easement of the public road. It was a large white oak, estimated to be over 160 years old. There was a defect in it, such as is often seen in old trees. On the easterly side, near the bottom and between two roots was a hole or cavity, variously described as being from the size of a squirrel hole to an opening several inches across and up to two feet high. One old man testified that this opening had existed practically in the same condition for over 40 years. There is evidence that fire had been set in this opening a day or two before the tree fell, and was burning at the time of the accident. No claim is made that defendant knew of, or was responsible for, this fire. The tree near the ground was over three feet in diameter. After it fell the trunk was sawed off some 12 feet from where it broke, and there showed sound greenwood all through. It is uncontradicted that it leafed out each year, and that the bark was intact all around, except where the hole was. From the ground up to about nine feet it was hollow, as disclosed after it fell, the outer rim or shell, with the bark, being only a few inches thick at places. The wind was very strong during the day of the accident, registering a velocity of about 27 miles an hour. However, this was not an exceptionally high April wind. In the view we take of the case it is not necessary to further state the contentions in respect to the condition of the tree, or defendant's knowledge thereof.
The actions were predicated upon defendant's negligence in suffering the tree which he knew or ought to have known to be a menace to safe travel to remain on the right of way. In other words, he is charged with a failure of duty. If no duty rested upon him to protect travelers against dangers lurking in trees growing upon the highway, the verdicts have no foundation, and there should be judgment notwithstanding.
Where the tree stood, the public held a dominant easement and defendant the servient fee. He no doubt could have cut down and appropriated the tree at any time he saw fit. The timber belonged to him. Town of Rost v. O'Connor, 145 Minn. 81, 176 N.W. 166, 9 A.L.R. 1265. But the highway authorities could likewise have cut down the tree, if dangerous to travelers. When this tree fell across the road the duty to remove it did not rest on defendant, but on the public authorities charged with the supervision and maintenance of the road. Blackwell v. Hill, 76 Mo.App. 46. While the abutting owner may remove from the highway material not needed or essential for the construction or repair of the same, there is no affirmative act required of him so to do in order to maintain the easement in condition for safe use. Defendant could not have been compelled by law to cut down and remove this tree upon proof that it was a menace to travelers. He was not bound to assume control over or appropriate any tree growing upon the right of way. He had not placed it there. The servient fee owner to a dominant highway easement is not supposed to patrol the road and examine the trees growing thereon to ascertain at his peril whether they or any limbs thereof are likely to fall in the often violent storms so frequent in this state. The authorities chargeable with the maintenance of streets and highways generally have been held to the duty of protecting against dangers from falling trees and branches. This negatives such duty on abutters or servient fee owners. Jones v. City of New Haven, 34 Conn. 1; Chase v. City of Lowell, 151 Mass. 422, 24 N.E. 212; Wright v. City of Chelsea, 207 Mass. 460, 93 N.E. 840; Lundy v. City of Sedalia, 162 Mo.App. 218, 144 S.W. 889; McGarey v. City of New York, 89 A.D. 500, 85 N.Y.S. 861; Vosper v. Mayor, etc., of New York, 17 Jones & S. (N.Y.) 296. The same is the case where a limb hangs so low over the way as to injure a...
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