57 A. 680 | N.H. | 1904
This action is brought under chapter 98, Laws 1901, relating to the protection and preservation of ornamental and shade trees in highways. It provides (s. 1) that one or more tree wardens shall be appointed by the mayors of cities and the selectmen of towns; (s. 2) that "towns and cities shall have control of all shade and ornamental trees situated in any public way or ground within their limits, which the tree warden deems reasonably necessary for the purpose of shade and ornamentation; and it shall be the duty of the tree wardens, as soon as possible after their appointment, to carefully examine the trees situated as aforesaid, and to plainly mark such trees as they think should be controlled by their municipality, for the purposes aforesaid, by driving into each tree, at a point not less than three nor more than six feet from the ground, on the side toward the highway, a nail or spike, with the letters `N.H.' cut or cast upon the head. . . . They shall also have the power to designate from time to time, in the same manner as hereinbefore directed, such other trees within the limits of the public ways and grounds as in his [their] judgment should be preserved for ornament or shade"; (s. 3) that "if any of the trees designated as aforesaid should prove to be private property, and the owners thereof refuse to release or convey their interest therein to the municipality, the tree warden shall acquire them for the use of the city or town by purchase, if it can be done at a fair price. Failing in this, he may, on petition for that purpose, acquire them in the same way and manner, and with the same right of appeal to their owners, as in the case of land taken for a highway"; (s. 4) that towns and cities may appropriate money "to be used by the tree warden in planting, pruning, protecting, and, whenever necessary, acquiring shade and ornamental trees within the limits of their public ways and grounds"; (s. 5) that such *475 trees shall not be removed except after a public hearing, etc.; (s. 6) that "it shall be unlawful to cut, destroy, injure, deface, or break any public shade or ornamental tree"; and (s. 8) that "persons violating any of the provisions of this act shall forfeit not less than five nor more than one hundred dollars, to be recovered in an action of debt by the tree warden."
It is apparent that the legislature in enacting this statute recognized that there might be a private ownership in trees located within the limits of highways, and provided the means by which such private ownership might be legally terminated by the public upon due compensation therefor. McCarthy v. Boston,
It is assumed, in the absence of a finding to the contrary, that the trees in question stood on the side of a country road and that their ownership was not peculiar, but depended upon the legal effect of the laying out of ancient highways upon the property rights of the landowners. If when the highway was laid out the public acquired the right, not only to construct and maintain a road over the land and to pass and repass thereon, but the right to deprive the landowner of the natural growth upon the side of the traveled path, whenever a later public sentiment might require it for ornamentation or comfort, the landowner's title to such growth is not an absolute one, and the public may terminate his limited and qualified right at pleasure and without further compensation. And it is the plaintiffs' contention that from the time when the highway was laid out, early in the last century, until they marked the trees, as provided in the statute, in 1902, the defendants, or their ancestors in title, might have legally cut down the trees and used the logs and wood for their own purposes, by virtue of their ownership of the adjoining land; but that after the trees were designated by the tree wardens for shade and ornament, their right to appropriate them as their property ceased or was in abeyance, by virtue of an original right which was vested in the public when *476 the highway was laid out. This theory might not be inaccurately stated to be that the public acquired the right to use the natural growth of the land, with a permissive right in, or license to, the abutter to use and consume it, until such time as the public might indicate its desire to use it for some highway purpose. On the other hand, it is denied that the public acquired any right to the products of the soil, as the grass and trees naturally growing thereon, except to remove them from the ground when necessary for the convenience or safety of public travel over the way; and that so long as they do not constitute an obstruction or menace to travelers, the abutter has an absolute right to have them grow there and an equally unlimited right to remove them.
It is a general principle which is not controverted in this case, that, "in highways laid out through the lands of individuals in pursuance of statutes, the public has only an easement, a right of passage; the soil and freehold remain in the individual, whose lands have been taken for that purpose." Makepeace v. Worden,
In Baker v. Shephard,
A similar result was reached in Tucker v. Eldred,
On the other hand, it was decided in Felch v. Gilman,
Upon this examination of the authorities, the question is presented whether, in laying out a highway under statutory authority, the public acquire a right to prohibit the landowner from removing the trees standing in the highway next to his land, for the purpose of preserving them for shade and ornamentation. If the public cannot deprive the owner of his trees by using them in constructing or repairing the road, can they deprive him of his property right in them by preventing him from cutting them down and using them in such a manner as he sees fit? It is no more a *479
deprivation of his property right to cut down his trees and devote them to the useful and necessary work of road construction, than it is to appropriate them standing, for the purposes of shade and ornamentation. An effective prohibition against one's use and enjoyment of his property in a usual and otherwise appropriate manner deprives him of his property, as much as its actual taking or asportation against his will. Eaton v. Railroad,
If such a right was acquired when the road was originally laid out, and if damages were assessed therefor, the statutes authorizing the laying out of highways furnish little convincing evidence in support of that contention. By the act of February 8, 1791, it was enacted: "That at any time hereafter, when there shall be occasion for any new highways or private roads, to be laid out in any town or place in this state, the selectmen of such town or place be, and hereby are, empowered, on application made to them, if they see cause, to lay out the same, . . . and if such road be for the benefit of the town or public, due recompence shall be made by the town to the owners of land through which such road is laid out, for all damages such owners sustain thereby." Laws, ed. 1792, 278, ed. 1797, p. 309, ed. 1805, p. 328, ed. 1815, p. 385.
The first section of the act of July 3, 1829, is a re-enactment of the first part of the statute above quoted, with some additions not material to the present inquiry, while section 2 provides: "That *480
when the selectmen of any town shall lay out a highway, they shall make return thereof, in which the way shall be particularly described and the width thereof stated, and shall cause the same to be recorded by the clerk. And such selectmen shall assess the damages thereby sustained by the owners of the land, and shall insert in the record the sums so assessed." Laws 1829, c. 52. In the Revised Statutes (c. 49, s. 13) and in the Compiled Statutes (c. 52, s. 16) the language used is, that "such selectmen shall assess the damages sustained by each owner of the land required for such highway, and insert the same in their return." In the revision of 1867, it is provided that the selectmen "shall assess the damages sustained by each owner of the land or other property taken for such highway, and insert the same in their return." G.S., c. 61, s. 15. This language also occurs in the General Laws (c. 67, s. 19) and in the Public Statutes (c. 67, s. 18). In the highway legislation of the state no attempt appears to have been made to state specifically the property right taken for highways, or the elements of the damages sustained by the landowner. But the court has frequently been called upon to define the extent of the power conferred for which damages are assessable, and the rights retained by the landowner for which he is not entitled to damages. In 1816, it was decided in Makepeace v. Worden, supra, that the public have only a right of passage in highways; that is, an easement only. In 1827, a similar holding was announced in Avery v. Maxwell,
No logical argument in favor of the plaintiffs' contention can, be drawn from the undoubted fact, that upon the laying out of *481
highway under the statute the public acquire the right to use the soil within the limits of the way for its construction and repair, and thus to deprive the owner of the profits of the land, which he might otherwise enjoy. As was shown in Titus v. Boston, Mass. 164, 165, 166: "It has from the earliest times been the practical construction of our laws authorizing land to be taken for public use, that the towns or corporations had the right, as one of the incidents of the taking, to use the gravel or soil of one part of a way for the construction of another part." See, also, Denniston v. Clark,
If the public highway easement for travel and communication authorizes the construction and operation, either on, above, or below the road-bed, of horse, electric, or steam railways, without the consent of the adjacent landowners whose title extends to the center of the way (Pierce v. Drew,
The idea of providing for the shade and ornamentation of highways is of comparatively modern origin. It does not seem to have commanded the attention of the people in the early part of the last century. In 1858, the mayor and aldermen of Portsmouth were "authorized to set out and maintain trees and shrubbery on public squares and highways at the expense of the city" (Laws 1858, c. 2128, s. 1), and the next year similar authority was conferred on the mayor and aldermen of Dover. Laws 1859, c. 2258. In 1861, a general statute was passed for the preservation and protection of shade trees, which provided: [s. 1] "That any town or city shall have full control of the shade trees situated within the limits of any public street or highway in, or passing through any town or city; and shall have full power to make such laws, from time to time, as may be deemed necessary for the protection and preservation of the same. [s. 2] If the owner of real estate in any town or city shall desire to remove any shade tree or trees, situate between the carriage path and sidewalk, or within the limits of any public street, he shall obtain leave of the selectmen of the town or mayor and aldermen of the city wherein the trees may be located, or conform to laws which the town or city may have provided relative to shade trees. [s. 3] Nothing in the foregoing shall be construed to debar the owner of real estate to plant, rear, *483 and protect any tree or trees between the carriage path and sidewalk in any public street or highway on which his estate be situate, if it do not interfere with the public travel." Laws 1861, c. 2502; G. S., c. 34, ss. 9, 10, 11. It will be observed that these provisions recognize the property right of the abutter in the shade trees in the highway, subjecting them merely to certain regulations as to their removal. No attempt was made to deprive him of his ownership of the trees. By section 6, chapter 1, Laws 1868, towns were authorized to raise money for the planting of shade trees; and in 1875, such an abatement of taxes was authorized, "to any person who shall set out and protect shade trees by any street or highway adjoining his land, as the said mayor and aldermen or selectmen shall deem just and equitable." Laws 1875, c. 39, s. 2; G.L., c. 37, ss. 9, 10, 11; Laws 1889, c. 82. These statutes were embodied in the Public Statutes (c. 40, ss. 4, 9, 10, 11) without any material change. In 1895, it was enacted that the mayor and aldermen of cities and the selectmen of towns be authorized "to designate and preserve trees standing and growing in the limits of highways, for the purposes of shade or ornament," and that "whoever shall wantonly or intentionally injure or deface any trees thus designated . . . shall forfeit not less than five nor more than one hundred dollars." Laws 1895, c. 85. At the next session, the legislature authorized selectmen to set out nursery trees which might be presented to them, in such highways as the donor should indicate, but provided that "nothing in this act shall be construed to compel any party to have trees in the highway on the side next his land without his consent." Laws 1897, c. 44.
From this examination of legislation previous to the act of 1901, it is apparent that it was no part of the legislative purpose to deprive abutters on highways of their property in the trees growing therein, but to more effectually guard and preserve such trees (Chase v. Lowell,
Whether a different result might not be reached in the case of the laying out of a street in a city or populous community, where all the land taken is required for actual, present use (2 Dill. Mun. Corp., s. 608; Boston v. Richardson, 13 Allen 146, 159; Bloomfield etc. Co. v. Calkins,
Case discharged.
All concurred. *485