PARK AND CEMETERY. 
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SOME COURT DECISIONS ON THE OWNERSHIP OF SHADE TREES 
Read by y. C. Monnett before Iowa 
Park and Forestry Association 
Outside of the parks, a large majority of the shade and 
ornamental trees are to be found on the strip of land between 
the owner’s lot line and the edge of the carriage road, on 
both sides of the sidewalk, and sometimes in the walk itself. 
There is a dual sovereignity over this area, neither the city 
nor the lot owner being completely master, though many 
shades of opinion have been expressed by the courts as to the 
rights and duties of each, depending primarily, of course, 
upon statute and ordinance regulations together with an in- 
terpretation of these and common law rights, and in lesser 
degree doubtless upon esthetic taste of the judges and the 
public whose opinion they reflect. It will not be unprofitable 
to notice some of the more prominent views expressed judi- 
cially. 
At common law, to be sure, the owner of land over which 
a highway passed, was held to retain his ownership of the 
fee, subject only to the easement of the public for the purpose 
of travel. He owned the grass and trees on the road and 
the coal and minerals beneath its surface. If at any time 
the public abandoned the highway or if it were legally va- 
cated, the entire beneficial interest returned to him. The 
right of the owner continues in the country districts and in 
some of the towns and villages, but in many cities, the streets 
of which were platted and dedicated to the public before lots 
were sold, the city is the absolute owner of the highway. 
Even in such cases, however, the lot-owner has certain rights 
not possessed by others. 
Illinois is one of the states holding rather extreme views 
on this subject. In Baker y. Town of Normal, 81 111. 108, 
and in Mt. Carmel v. Shaw, 27 L. R. A. 580, the court de- 
clares that a town having control of its streets with power 
to improve them, may allow property owners to adorn the 
same by setting out and caring for shade trees along their 
premises, but that by so doing it will not lose its control 
over the trees so planted, even as against the party planting 
them ; and further that the planting of the trees by the prop- 
erty owner is a gratuity to the public. The city then has all 
rights, the lot-owners none, and there would seem to be little 
encouragement for the planting of trees, and no feeling of 
security in their permanent enjoyment. 
Another court holding that the shade trees on the city’s 
sidewalks and streets belong to the city and may be removed 
if necessary in grading, complacently says ; “While there is 
a degree of convenience and comfort about the shade trees 
on sidewalks fronting a house, yet these must yield to the 
control of the city authorities over the public walks, and the 
lower court certainly went to the extreme of the law when it 
authorized damages for negligently and carelessly killing 
them” — a very grudging admission of the owner’s right to the 
benefit of the beauty and solace of the shade of his trees. 
Castleberry v. City of Atlanta, 74 Ga. 164. 
North Carolina does not hold its cities liable for the de- 
struction of trees on the outer edge of the sidewalk when 
deemed an obstruction to the walk or injurious to public 
health. Tate v. City of Greensboro, 24 L. R. A. (N. C.), 
671. By making a pretense of this kind, which rarely has 
the slightest foundation, the city can destroy trees at its 
pleasure. 
In Bliss V. Ball, 99 Mass. 598, we find that the old Bay 
State gives the entire control of the trees in the highways to 
the mayor, aldermen, and selectmen, and the subordinate 
officials appointed by them ; but here the love of trees is so 
universal that there is little danger of their being destroyed 
by the demands of commercialism or by thp indifference or 
esthetic shortcomings of officers, and the law giving complete 
control to the officers above named, is designed rather to pro- 
vide official guardians for the trees than to prevent private 
owners from cultivating and enjoying them. Immense sums 
of money have recently been expended by Massachusetts and 
the Boston metropolitan district to preserve its trees. The 
brown-tail and gypsy moths, the most destructive by far of 
all known enemies of trees, have ravaged eastern Massachu- 
setts for several years. Think of the stupendous labor and 
expense of putting two broad bands, one of tar paper and 
one of burlap, around every tree in the “Middlesex Fells,” a 
semi-park district of over 1,800 acres, and so of all the 
wooded districts in the metropolitan park system. These 
bands have to be cleaned of the moths, frequently by hand. 
It is to be hoped that the pest, which has been here but a few 
years, may be destroyed or checked before it spreads to other 
sections of the country. Massachusetts will sacrifice a great 
deal to save her trees. All this expenditure is fully sanc- 
tioned byi public opinion. While carefully providing officials, 
sometimes special tree-wardens, to take care of the trees, 
Massachusetts will not permit such an official to say arbi- 
trarily that a certain tree is a nuisance and so remove it. 97 
Mass. 472. 
Chase v. The City of Oshkosh, 15 L. R. A. (Wis.), 553, is 
a case where the plaintiff sued for damages due to the de- 
struction by the city of five trees in front of his lot. They 
