12 MASS. EXPERIMENT STATION BULLETIN 349 



that such officers permitted a shade tree causing damage to remain in the highway. 

 In answering this contention, the court said: 



The petitioner contends that the natural meaning of the word "reten- 

 tion" as used in the statute is to give a right to damages to one injured 

 in property by the mere fact that such officers permit a shade tree causing 

 damage to remain in the highway. The word "retaining" appears in St. 

 1867, c. 242, § 1. That section recognized the private ownership of all 

 ?hade trees to be in the abutting owner, but forbade him to cut down such 

 trees without first giving notice to public officers who might "retain" such 

 tree as a shade tree; and in that event the owner could recover damages 

 according to the highway law. The retention of the tree in those circum- 

 stances was an act of eminent domain. In subsequent statutes the word 

 "retention" is used, and the continuation of the word, particularlv in 

 St. 1915, c. 145, §§3, 8, and G. L. c. 87, §§3, 8, indicates that it is to con- 

 tinue to have the same meaning as "retaining" when that word originally 

 appeared in our statutes, and as in the case at bar the requirements of 

 the section (§3) were not complied with the petitioner cannot recover. 



A somewhat similar case was presented in the case of Jones v. Great Bar- 

 rington, 269 Mass. 202. In this case the facts found by the auditor to whom it 

 was referred disclosed that the petitioner was the owner of real estate with a 

 dwelling house thereon, situated on the northerly side of Main Street, a public 

 way, in the village of Housatonic in the defendant town. For a long time there had 

 existed on or near the boundaries of the plaintiff's premises and within, or near 

 the boundaries of said premises, or near the boundaries of the highway, a public 

 shade tree approximately nine feet in circumference at its base, over fifty feet in 

 height, and from fifty to sixty years old. In 1916, the petitioner was informed 

 that the tree was in a dangerous condition; there was a hole or cavity in its trunk, 

 about twenty feet from the ground, which could easily be seen. He brought 

 the attention of the then tree warden to the condition of the tree, and the warden 

 agreed to look after it, but he never did. In 1923, the plaintiff spoke to a member 

 of the board of selectmen in regard to the tree, and was told that the tree was in 

 pretty good condition and that he had no right to cut or remove it. In the 

 spring of 1925, the plaintiff spoke to the then tree warden about the condition 

 of the tree who told him he would look into the matter, but he never did. In 

 1926, the petitioner stated to the road superintendent of the town that the tree 

 was dangerous and asked him to see about taking it down. The road superinten- 

 dent promised to report it to the board of selectmen and see what they would do 

 about it. Other than the tree wardens, none of the town officials referred to ever 

 had anything to do with the care of trees, except to investigate when trees were 

 reported in bad condition and bring it to the attention of the tree warden. No 

 public hearing in respect to the cutting, trimming or retention of the shade tree 

 was ever called or held in accordance with the provisions of G. L. c. 87, § 3. 



On the evening of October 12, 1927, during a severe but not unusual storm of 

 wind and rain, the tree, on account of its decayed condition, was blown over 

 upon the dwelling of the petitioner causing damages to the house. Prior to the 

 blowing over of the shade tree, no one in the employ of the town ever pruned, 

 trimmed, sprayed or did anything about the tree except to speak to the above 

 named officials about its condition. In the Superior Court judgment was rendered 

 for the town. 



The petitioner contended in his argument to the Supreme Judicial Court 

 that the shade tree was dangerous to travellers; that the non-action of the officers 



