249 
PARK AND 
CEMETERY. 
were obstructions to the sidewalk and there had been some 
complaint for two years. The trees were held to be a nuisance 
and their removal to be within the quasi-legislative discretion 
conferred on the council by the charter, but that the plaintiff 
owned the trees and might have maintained an action for 
their injury by any one else except the city. But the same 
court, in 78 Wis. 56, says : “It may be that the public authori- 
ties had the right to remove such trees as were essential to 
fit the street for public travel but certainly nothing more,” 
showing a commendable jealousy of the power of the city to 
inflict injury upon the owner and the public. 
The California law is that a city council can do anything 
it sees fit with trees in the streets under the charter power 
to define nuisances. 113 Cal. 147. 
Some consolation is found for the owner in that where the 
city plants trees in the sidewalk he is excused from the duty 
of trimming them and from liability for injury caused by 
them. Weller v. McCormick, 47 N. J. Law, 397. 
The city itself is liable for not removing an unsound shade 
tree. Chase v. City of Lowell, 131 Mass. 422 ; and Embler 
v. Wallkill, 57 Hun. 384. In Gitt v. Hanover, 4 Pa. Dist. R. 
606, the borough authorities were not allowed to remove 
trees; while in 33 L. R. A. (N. J.), 685, an ordinance allow- 
ing a borough to cut down trees planted twenty-five years 
before was held to be void. 
The doctrine that the owner of the lot may recover for 
injury to the trees on the street in front of his property 
against any private individual so injuring them is so general 
that authorities need not be cited. The Ohio court in Phifer 
V. Cox, 21 Ohio St. 248, goes so far as to declare that the 
owner has the exclusive right to such trees. Such property 
interest yields only to public travel, and a telephone company, 
for instance, under a lawful franchise cannot cut trees with- 
out first compensating the owner. Daily v. State, 51 Ohio 
St. 348. By-laws passed for the protection of trees planted 
in the highway apply only to other persons than the owner 
and the public cannot prevent such owner from cutting them 
down if he chooses. Lancaster v. Richardson, 4 Lans. N. 
Y., 136. 
The courts of Michigan, New Hampshire, Maine, and Iowa 
hold liberal, advanced, and most commendable views on this 
subject. “The policy of our laws,” says the Michigan judge, 
“favors the planting and preservation of shade trees on the 
public streets * * * and where he (the commissioner) is 
authorized to order the removal of shade trees, it is a great 
mistake to assume that he may exercise his power in a wan- 
ton or reckless manner with impunity; * * * the policy of 
the law * * * would be wholly defeated if one had no bet- 
ter protection for his shade trees than the whim or caprice 
of successive commissioners, any one of whom might destroy 
in an hour all that he had accomplished in many years. * * * 
A tree in the highway is not * * * per se a nuisance and it 
only becomes such when it constitutes an actual injury or 
obstruction. When the commissioner proceeds to cause a 
man’s shade tree to be removed, he is destroying or injuring 
the value of private property and he should be prepared to 
justify his action.” And in apparent disgust the court then 
adds : “And why trees within ten feet of the margin of a 
seventy-foot avenue should be cut down as obstructions is 
certainly not explained to our satisfaction.” Clark v. Dasso, 
34 Mich. 86. Those words have the right ring, and doubtless 
have exerted a wholesome influence in that state. Maine is 
not behind Michigan in this respect. In Wellman v. Dickep, 
78 Me. 39, the defendant, a highway surveyor, notwithstand- 
ing he claimed to be in the lawful performance of his duty, 
was held liable to plaintiff for the destruction of twenty shade 
trees, the court saying : “The statute encourages this method 
of beautifying and adorning public thoroughfares. Trees so 
planted are a public benefit and ought to receive public ap- 
proval if not official care. They cannot be lawfully destroyed 
without the call of public necessity. Highway surveyors 
should protect and guard them and not wantonly uproot and 
destroy them. * * *” 
The New Hampshire court in Graves v. Shattuck, 35 N. H. 
257, goes to the extent of saying that the owner, to protect 
the trees from active or threatened injury is justified in using 
sufficient force to accomplish that end. The remarks of the 
court below as to the wanton and ruthless destruction of use- 
ful or ornamental shade trees, by forcing through a street 
a building occupying its whole width, thereby destroying in a 
single day the combined efforts of man and nature for half a 
century, were strong and emphatic but not more so than de- 
manded.” 
Though the office of supervisor is of a judicial character, 
yet the Iowa court in Bills v. Belknap, 36 la. 583, granted an 
injunction restraining the removal of five oak and hickory 
trees from the road in front of plaintiff’s house even though 
such official claimed to be “improving” the highway. “The 
state has adopted a policy encouraging the growth of trees 
and discouraging their wanton destruction. * * * The tastes 
and comfort of the people demand that this policy should be 
enforced, and we confess that we have no sympathy with that 
spirit of vandalism which would unnecessarily remove the 
ornaments of the country.” This case was followed in Cris- 
mon V. Deck, 84 la. 344, and in Everet v. City of Council 
Bluffs, 46 la., 66, under a charter saying a city shall have 
the power to declare what shall be a nuisance, the marshall 
was nevertheless enjoined from cutting down trees in the city 
streets, the court holding that the city had no arbitrary power 
to declare anything a nuisance unless it was so at common 
law or by statute. “These trees do not constitute a nuisance 
and they do not constitute an obstruction to the travel along 
said street, unless the mere fact the city council has so de- 
clared, makes them so. So far from being so, they are both 
useful and ornamental.” See also Quinton v. Burton, Road 
Sup., 61 la., 471. 
It is plainly evident that summary and arbitrary power of 
destruction of the trees of our cities ought not to be lodged 
with any person or set of persons. If left to the surveyor or 
street commissioner, a desire for angles or straight lines or 
the periodic recrudescence of that perpetual itching to lower 
the street grade a foot or two. may cause any day a destruc- 
tion of a whole block of trees that have taken the care and 
watchfulness of a generation to produce. On the other hand, 
if left exclusively to the lot owner, a foolish idea that the 
trees are “rotting his roof” or that miasmatic and germ-laden 
vapors lurk in “too much shade” or some other equally whim- 
sical notion may cause some stately elm or maple to fall, 
which all the sighs and regrets of the neighbors and public 
are powerless to prevent or replace. 
A tree has an individuality and ought to have a chance for 
its life. No street shade tree should be condemned to de- 
struction without a hearing. Ordinances ought to be passed 
in all cities, saying that in all cases, except of undoubted 
emergencies, no street tree shall be cut down without full 
and fair notice of the intention so to do posted upon the tree 
or otherwise brought clearly to the attention of the neighbor- 
hood and the public, which notice shall state the time and 
place, when and where a hearing on the subject shall be had, 
and all the persons be allowed to present their protests. Suf- 
ficient time should be given and the hearing should be had be- 
fore a duly authorized judicial committee made up of mem- 
bers of the city council or of park commissioners in cities 
having the latter, and the hearing shall be without cost or 
expense to any party wishing to be heard. Something like 
this provision has been adopted in some places in New Eng- 
land. After such a hearing it would be very rare that a tree 
would be wantonly destroyed. 
