18 MASS. EXPERIMENT STATION BULLETIN 349 



TREES MAY CONSTITUTE A NUISANCE 



You will recall that in discussing the case of Jones v. Great Barrington,"* 

 I stated that the plaintiff, in another action brought by him to recover for the 

 damages sustained by reason of a decayed tree's falling on his building, was per- 

 mitted to recover. His recovery was permitted for the reason that the tree con- 

 stituted a nuisance. In its decision of this latter case,^^ the court declared: 



In our opinion, upon the allegations in the declaration, the town, because 

 of its title to the land within the limits of the public street, owed the duty 

 to an adjoining land owner not to maintain a nuisance in the street to his 

 injury. In Allegheny v. Zimmerman, 95 Penn. St. 287, 293, the court 

 said: A public shade tree "may become a nuisance by disease or decay." 

 In Gibson v. Denton, 38 N. Y'. Supp. 554, 555, the court held that a de- 

 cayed tree standing near the plaintiff's house, on which it might fall in 

 any of the gales liable to occur, was a nuisance which the defendant on 

 request should have abated. When such a nuisance exists in a public 

 highway and the municipality has had notice thereof, it is not relieved of 

 the obligation as a land-owner by the statute placing the control of public 

 shade trees in the tree warden. Nor is it relieved from such obligation by 

 reason of the fact that its duties with reference to the maintenance of 

 public shade trees are public in their nature without pecuniary gain to it. 

 The liability of a municipality as an "owner of land or of a building is the 

 same as that of a natural person." . . . The municipality was in a position 

 where it might take measures to protect a property owner in the position 

 of the plaintiff from the harm which came to him. 



The liability of a town as an owner or in control of real estate does not 

 rest upon the allegations of negligence ... Its liability must rest upon the 

 maintenance by it, upon land within its control, of a decayed and danger- 

 ous tree which at any time was likely to fall and for a substantial period 

 of time had been so located as to expose the persons and property of others 

 to the chance of instantaneous injury, and thereby became a "constant 

 menace to the safety of the immediate community, and hence constituted 

 a nuisance . . . when direct injury to an individual results, a private action 

 can be sustained for damages suffered." 



In concluding its opinion, the court further said: 



In our opinion, upon the allegations of count two of the declaration, 

 the defendant could be found to have violated its duty to the plaintiff by 

 maintaining a decayed and dangerous tree or in permitting it to stand 

 after notice without taking action to protect the plaintiff and his prop- 

 erty from injury from its fall. 



5S269 Mass. 202. 



*'Jones V. Great Barrington, 273 Mass. 485, 487. 



