SHADE TREE LAW IN MASSACHUSETTS 15 



no notice or public hearing is required, and it is the duty of the tree warden to 

 carry out such order. ''^ 



A strict interpretation of the provisions of the statute to which I have just 

 referred would limit the authority to order the tree warden to trim, cut or remove 

 a public shade tree to the county commissioners, but I think the Legislature 

 intended the term "highway" in its more general meaning as applying to all 

 public ways. This seems to be borne out by the decision in Graham v. Board 

 of Public Works of Pittsfield, 285 Mass. 544. 



As I construe the statute (G. L. (Ter. Ed.) c. 87, § 5) relative to the trimming, 

 cutting or removal of public shade trees, it applies to town ways as well as high- 

 ways, and the order to the tree warden may be given by the county commis- 

 sioners, the city council of a city, and in towns, by the selectmen or road com- 

 missioners, whichever has jurisdiction of town ways. 



The "widening of a highway" in that section (5), and commonly, sig- 

 nifies a change in its location, — that is to say, its boundaries, — effected 

 by bringing more of the earth's surface within that location, . . . Such 

 "widening" is often comprehended within the broader term "alteration" 

 ... It requires the exercise of eminent domain. It is different in nature 

 from a construction of a wider traveled or paved surface within the limits 

 of the highway as already laid out.^" 



In Wright v. Chelsea, 207 Mass. 460, 464, in discussing the authority of the 

 tree warden to trim trees, the court said: 



The discretion and sound judgment of the town tree warden alone de- 

 termines whether a shade tree shall be trimmed . . . , and he is not subject 

 to the control of the surveyor or road commissioners ... It may be as- 

 sumed that the Legislature made this provision in order that the trimming 

 should be done, not b>' the road ofiicer inexperienced in such matters, 

 but by the scientific judgment of a forester or other official familiar with 

 trees, and that thus the beauty and preservation of shade trees be con- 

 served. At the same time it recognized that the safety of the travelling 

 public is the paramount consideration, and placed upon the officer, charged 

 with responsibility of maintaining all public ways reasonably fafe and 

 convenient for travel, the duty of determining whether any branches 

 should be removed. 



The implication of the provision in section 5, viz., "Nothing contained in this 

 chapter shall prevent the trimming, cutting or removal of any tree which en- 

 dangers persons travelling on a highway . . .", is that the tree warden is author- 

 ized to trim, cut or remove a tree if he determines as a fact that it endangers 

 persons travelling on a highway. 



Nothing in the statute shall interfere with the gypsy and brown tail moth 

 suppression as carried on under the direction of the state forester and the United 

 States department of agriculture, except so much as relates to the cutting and 

 removal of trees, shrubs and growths that are more than one and one-half inches 

 in diameter one foot from the ground. ^^ 



Violations of any of the requirements which I have herein discussed relative 

 to the cutting, trimming or removal of public shade trees are punishable by for- 

 feiture of not more than five hundred dollars to the use of the town. 



The care and control of trees, shrubs and growths within a state highway are 



<9G. L. (Ter. Ed.), c. 87, § 5. 



5»Graham v. Board of Public Works of Pittsfield, 28.5 Mass. 544, 547. 



5'G. L. (Ter. Ed.), c. 87, § 5. 



