SHADE TREE LAW IN MASSACHUSETTS 13 



in charge of highways whereby the tree was permitted to stand after their atten- 

 tion had been brought to its condition in 1916, and their failure to convoke a 

 public hearing under G. L. c. 87, § 3, or to permit him to cut the tree down or to 

 order the same to be cut down by the tree warden as endangering travel on the 

 public way for a period of eleven j-ears, constituted a retention of the tree within 

 the meaning of G. L. c. 87, § 3, and attempted to distinguish this case from 

 Cody V. North Adams, 265 Mass. 65, which I discussed previously. 



The court held that this case was governed by Cody v. North Adams, sus- 

 tained the decision of the judge of the Superior Court, and in the course of its 

 opinion said: 



No statute of this commonwealth in terms makes any provision for a 

 petition under the eminent domain act, G. L. c. 79, to recover damages 

 to person or property sustained by reason of the failure of public officials 

 to remove or make safe trees which endanger, hinder or incommode travel 

 on a public way. 



After this decision was handed down, a new action was brought by the peti" 

 tioner, and he was permitted to recover on another ground, which I shall treat 

 later. 



I have not been able to find any decision of the Supreme Judicial Court in 

 which the precise question of the right to recover damages to property resulting 

 from the "trimming, cutting, removal or retention of any such tree" has been 

 presented for determination. In order that this point may be understood, let 

 us discuss two supposititious cases: 



1. Let us assume the facts as to the condition of the shade trees before they 

 were blown down in either of the cases of Cody v. North Adams, 265 Mass. 65, 

 and Jones v. Great Harrington, 269 Mass. 202, as the basis of our first hypothetical 

 case. If Cody had applied to the tree warden to cut down the tree, and, after a 

 full compliance with G. L. c. 87, § 3, that is, the giving of notice and the holding 

 of a public hearing, the tree warden decided to retain the tree, Cody could recover 

 for the damage to his property, that is, the lessening of the value of his property 

 because of the retention of the tree. The value of his property would be decreased 

 because of the danger of the injury which might be inflicted on persons who might 

 occupy the house, and of damage to the building and its contents. Of course, 

 no one would pay the real value of the property under such circumstances. Who 

 would want to occupy the premises when danger was so iminent! 



2. In our second hypothetical case, let us assume the following facts: A is the 

 owner of a piece of real estate ideally situated for residential purposes, and large 

 shade trees are standing in the highway and in front of his premises, which add 

 to the appearance of his premises, and also to his comfort and enjoyment. For 

 some reason, the tree warden believes that these trees should be removed, and 

 convokes a public hearing, and grants authority to remove them and the cutting 

 or removal is approved by the selectmen or the mayor. (Remember this is a sup- 

 posititious case, and I hardly think any sane tree warden, mayor or selectmen 

 would do anything like this.) A right of action would accrue to A, and he could 

 maintain a petition for the assessment of damages under the eminent domain 



-laws, G. L. (Ter. Ed.) c. 79. for the damages resulting to him because of the 

 diminution in the value of his property. 



The Legislature, however, has imposed limitations upon the tree warden with 

 respect to the cutting down or removal of a public shade tree. If, at or before a 



