SHADE TREE LAW IN MASSACHUSETTS 11 



town the tent caterpillar, leopard moth and elm tree beetle or any other tree- or 

 shrub-destroying pest, if authorized so to do by the mayor and city council or 

 by the selectmen. ''^ 



The statute prohibits the cutting down, trimming or removal of anv public 

 shade tree less than one and one-half inches in diameter one foot from the ground 

 in whole or in part by any person, even if he be the owner of the fee on which 

 such tree is situated, other than the tree warden or his deputy, except upon a 

 permit in writing from the tree warden. No tree warden or his deputy or other 

 person shall cut down or remove a public shade tree without a public hearing at 

 a suitable time and place, after a notice thereof posted in two or more public 

 places in the town and upon the tree at least seven days before such hearing, 

 and after authority is granted by the tree warden.*^ 



It is suggested that the tree warden strictly observe the requirements of these 

 provisions, otherwise, any action authorized by him will be a nullity. If he 

 commits an error of law, his acts may be reviewed by certiorari. 



If a person is injured in his property b>- the action of the officers in charge of 

 the public shade trees as to the trimming, cutting, removal or retention of any 

 such trees, or as to the amount awarded to him for the same, he may recover 

 the damages, if any, which he has sustained, from the town under the provisions 

 of law relating to eminent domain (land takings). G. L. (Ter. Ed.) c. 79.^^ 



In such cases, damages, if any, shall be awarded by the tree warden. The 

 damages shall be assessed as of the day the act is done.^* In the event that no 

 damages are awarded or that the award, if one is made, is insufificient, the person 

 claiming to be injured must bring a petition for the assessment of damages in 

 the Superior Court for the county in which the town is situated within one year 

 of the date of the alleged injury. 



The provisions of G. L. (Ter. Ed.) c. 87, § 3, relative to injury by trimming, 

 cutting, removal, or retention of a public shade tree do not authorize the bring- 

 ing of a petition for damages sustained by reason of injury to property for the 

 falling down of a decayed tree. 



Cody v. North Adams, 265 Mass. 65, was a petition for damages to the plain- 

 tiff's house by the falling of a tree because of its decayed condition. The court, 

 speaking through Mr. Justice Carroll, said: 



Under the statute, G. L. c. 87, § 3, the tree could not be removed by 

 the commissioner of public works until after a public hearing at which 

 the parties interested might have an opportunity to be heard. As there 

 was no such hearing, the remedy given to the party injured in her property 

 does not apply. That remedy i? purely statutory; it is not given for mere 

 neglect to remove a tree standing in the public highway and which falls 

 upon the house of any adjoining owner, when there has been no public 

 hearing. The failure of the commissioner to remove the tree did not give 

 the petitioner a right to damages under the eminent domain statute. ''^ 



The petitioner in the same case contended that the retention of the tree by the 

 city gave a right to damages to one injured in his property by the mere fact 



^'G. L. (Ter. Ed.), c. 132, § 25. 

 "G. L. (Ter. Ed.), c. 87, § 3. 

 "G. L. (Ter. Ed.), c. 87. § 3. 

 **G. L. (Ter. Ed.), c. 79, § 10 



^^Under the provisions of the city charter of the city of North Adams, the commissioner of public 

 works had the powers and duties of a tree warden. 



