PARK AND CEMETERY 
19 
of the trees should be obtained, and the work of bending said 
trees, if done at all, done under the supervision of their 
experts. 
To withhold the relief prayed for by the plaintiff, and to 
relegate him to a prosecution of the defendants for violation 
of the laws after the damage is done, or to a recovery of 
damages, would not be an adequate remedy under the circum- 
stances. The trees once cut or mutilated could not be re- 
placed, and the purpose of the laws enacted for their protec- 
tion and preservation would thus be wholly frustrated. In 
my judgment, therefore, a proper case for injunction is pre- 
sented.” 
Damages for Injury by Escaping Gas. 
Thomas Donahue, of Olean, N. Y., owned resi- 
dential property abutting upon a city street, but no 
part of the bed thereof. On the margin of the street 
and directly in front of his premises, but not upon 
his land, are a number of maple trees, planted by 
his predecessor in title, about thirty-five years old, 
“all in thrifty condition and furnishing good shade.” 
The supreme court of New York decides that he 
has a property right therein sufficient to entitle him 
to recover damages caused to his premises by the 
destruction of the trees by the negligence of a gas 
company, in permitting, after notice, gas to escape 
from its pipes into the soil about the roots of the 
trees ; as an abutting owner he has a right therein 
in the nature of an easement attached to and form- 
ing part of his premises, similar to his easements of 
light, air and access and other easements, which 
spring from the situation of his land upon the open 
space of the street, which exists whether he owns the 
fee of the street or not ; and even if the city, owning 
the street, has a right of action for the destruction of 
the trees, tliis cannot constitute a double recovery for 
the same injury, because the damages are as distinct 
and clear as the causes of action themselves , 
Four of these trees were destroyed by the negligence 
of the defendant in permitting gas to escape from its 
pipes into the soil about the roots of the trees. This 
action was brought to recover the damages alleged to 
have been sustained by the plaintiff by reason of these 
facts, and the jury found a verdict in his favor for the 
sum of $150. Upon an appeal to the appellate divi- 
sion the judgment entered upon the verdict was unani- 
mously affirmed. 
The court holds : 
“As a matter of law the plaintiff had a property right in 
those trees, although they were not planted upon lands that 
he had the title to, sufficient to permit him as a matter of 
law to maintain an action against any person who might 
wrongfully injure or destroy the same .k,. 
It is to be observed that we are not dealing with a ques- 
tion arising between an. abutting owner and the city authori- 
ties. for in such a case the rights of the latter are paramount, 
• so long as the road is kept open and unobstructed. Nor 
are we dealing with a question between him and a corpora- 
tion authorized to use the streets for some public purpose, 
where it becomes necessary to cut shade trees in order to 
effect that purpose. It is not the question which might have 
arisen when the defendant many years ago laid its pipes in 
the street, if it had then been necessary to cut the trees 
which are the subject of this action in order to do the work 
and they had been cut for that purpose with the approval of 
the city authorities. The defendant did not let its gas escape 
with the consent of the officers in control of the street. It 
did not act in accordance with law, but in violation of law. 
In a recent case decided by the Appellate Division of the 
second department, which held that “an owner of land abut- 
ting upon a city street whose ownership does not extend 
to the middle of the street, who has to set out ornamental 
shade trees on the sidewalk in front of his premises at his 
own expense and with the sanction of the municipal authori- 
ties, is entitled to have such trees protected against negli- 
gent or willful destruction at the hands of third parties. 
He has a right in such trees in the nature of an equitable 
easement, and where one of them is girdled and destroyed by 
a horse, may recover from the owner of the horse the dam- 
ages thus sustained.” 
THE SCARLET OAK. 
The Scarlet Oak, Quercus coccinea, Wang., is one 
of the handsomest oaks of northern United States, 
and is an excellent shade tree as shown by the ac- 
companying illustration. It usually forms a very wide- 
spread head, when growing in the open, a broad 
rounded top. The outer bark of the trunk is very 
rough, black, that of the branches smoother and of a 
lighter shade. The inner bark is pale reddish or gray. 
Leaves very deeply cut, with narrow, often cleft lobes. 
IHE SCARLET OAK. 
rich, dark, shining green above, turning beautifully 
scarlet in autumn. The tree is especially fine in full 
sunshine, its rich dark shining foliage being very bril- 
liant. Leaves are larger than those of the pink oak, but 
smaller than those of the red oak and black oak. The 
acorn is ovoid, long and rather slender, sharp pointed, 
striped, cup hemispheric or top-shaped. It deserves 
wide planting in parks, cemeteries and as a street 
shade tree. Wilfred A. Brotuerton. 
I 
