SHADE TREE LAW IN MASSACHUSETTS 



By Edward T. Simoneau, LL.B.i 



The law relative to the care, preservation and maintenance of public shade 

 trees in this commonwealth is wholly statutory, and one chapter of the General 

 Laws, chapter 87, is devoted exclusively to that subject. Other provisions of 

 law relating to public shade trees, which I shall discuss later in this paper, are 

 to be found in other parts of the General Laws. 



The planting, maintenance, care and removal of shade trees in high- 

 ways is a service purely public in its nature, undertaken for the common 

 good and without any element of private gain or special advantage to the 

 municipality. Shade trees, though not originally the subject of legislative 

 action, have been regulated to a very considerable and increasing extent 

 by statute in recent years, until now the whole range of municipal action 

 respecting them is covered. There is little if anything left to local control. 

 The definition of public shade trees is statutory, and the discretion and 

 sound judgment of an officer appointed by local authority controls wholly 

 their care, preservation and removal. Shade trees are not objects of utility, 

 but rather of beauty, grace and refreshment. The motive which prompts 

 their planting and the object to be attained by their cultivation is a general 

 benefit. Although the expediency and extent of municipal activity is left 

 to the wisdom of local instrumentalities of government and is not impera- 

 tively determined by the Legislature, the character of such beneficial work 

 is distinctly the public weal rather than any private emolument of the 

 city or town. It is plain that under principles firmly established in our law, 

 the performance of these functions constitutes not private acts, but pub- 

 lic service. - 



With this statement by the learned Chief Justice of the Supreme Judicial 

 Court, we may proceed with a discussion of the legislative history of the laws 

 relating to public shade trees and those now in force in this jurisdiction. 



EARLY SHADE TREE LAWS 



The evolution of the shade tree law in Massachusetts was of considerable 

 duration. The first general law in this commonwealth in which we find any 

 mention of trees on public ways was passed in 1786,^ in which it was provided 

 that highway surveyors "shall have full power ... to cut down or lop of? all 

 trees and bushes, . . . that shall in any manner obstruct or incumber any highway 

 or town way, or hinder, incommode or endanger persons travelling thereon; ..." 

 This law was amended in 1796,"* and was re-enacted in the several revisions of 

 the general laws down to 1880.' 



iQf Marlborough, Massachusetts. Special Justice of the District Court of Marlborough, Pro- 

 fessor of Municipal Government, Suffolk University, and former Assistant Attorney General 

 of Massachusetts. 



'Chief Justice Rugg in Donohue v. N'ewburyport, 211 Mass. 561, at page 564. 



'St. 1786, c. 81, § 1. 



<St. 1796, c. 58. § 12. 



5St. 1885, c. 123, § 2. 



