SHADE TREE LAW IN MASSACHUSETTS 17 



for wantonly injuring, defacing or destroying a shrub, plant, tree, fixture or 

 ornament or utility, in a public way or place or in any public enclosure, or neg- 

 ligently or wilfully suffering an animal driven by him or for him or belonging to 

 him to injure, deface or destroy such shrub, plant, tree or fixture. ^^ 



It is to be observed that in sections 10, 11 and 12 of chapter 87 of the General 

 Laws (Ter. Ed.), the words "maliciously", "wilfully", "wantonly" and "neg- 

 ligently" appear. In case of prosecution, it is not sufficient merely to show the 

 commission of the offence, but it must be made to appear by competent evidence 

 that the acts complained of were done "wilfully", "wantonly" or "maliciously" 

 Each of these words indicate a state of mind, that is, the intent of the person 

 against whom the charge is made. To do an act "wilfully", "maliciously" or 

 "wantonly" there must be an intention to do so — a premeditation, so to speak. 

 Where the ofTence charged is that of "negligently . . . suffers an animal ... to 

 injure or destroy a shrub, plant, tree or fixture" the negligence of the defendant 

 must be shown. The test is. as in all cases involving negligence, what would the 

 reasonably prudent man do in similar circumstances. The penalties provided in 

 sections 10 and 11 are fines not exceeding five hundred dollars, or imprisonment 

 for not more than six months; and in section 12, a fine not exceeding five hundred 

 dollars. Civil liability also attaches in case of a violation of section 12. 



SHADE TREES MAY CONSTITUTE DEFECTS IN A PUBLIC WAY 



It has been held in numerous cases that shade trees ma\- constitute defects 

 in a way. In Yalvoline Oil Co. v. Winthrop, 235 Mass. 515, 520, it was said: 



While many cases have been considered by this court involving injuries 

 to travellers on a highwa\' caused by trees standing within the limits of 

 the way, most of them have arisen because of the decayed condition of 

 such trees, . . . Yet we are of opinion that there is no sound distinction 

 between the liability of a cit>- or town for failure to guard against defects 

 caused by trees within the limits of a highway which are old and decayed, 

 and those which, although sound, in course of time cause a defective con- 

 dition of a highway by growth. Anything in the state or condition of a 

 highway which renders it unsafe for ordinary travel is a defect or want 

 of repair. 



In that case it appeared that the outer edge of the trunk of the trees was within 

 six inches of the roadway', over which no portion of the trunk extended. A limb 

 reached over the roadway, and grew from the trunk about seven feet from the 

 ground. The circumference of the trunk at its base was approximately six feet 

 four inches, and the limb at the trunk three feet six inches. The tree was about 

 fifty years old, and at the time of the accident was in sound, healthy condition, 

 including the limb in question. The plaintiff's wagon was damaged b>' the top 

 of it coming in contact with the limb, and he was permitted to recover. 



"G. L. (Ter. Ed.), c. 87, § 12. 



