99 Mass. 597 | Mass. | 1868
The plaintiff’s occupation furnished presumptive evidence of title to the middle of the street, subject to the public easement. Boston v. Richardson, 13 Allen, 152, 153. White v. Godfrey, 97 Mass. 472. The trees therefore appeared to be on his land. He planted them there more than twenty years ago; and, as the selectmen have permitted them to remain, it must be presumed that they authorized him to plant them. If the defendant thought they were a nuisance to the public, he might have complained to the selectmen, pursuant to the Gen. Sts. c. 46, § 6; and it was for them to decide the question whether they should be removed. The defendant had no authority to remove them; nor were the jury authorized to decide the question whether they ought to remain.
The defendant offered to show that the trees, by their shade, made his house damp and unhealthy. But he did not offer to show that their branches overhung his land, or extended beyond the line of the plaintiff’s land. As against adjoining proprietors, the owner of a lot may plant shade trees upon it, or cover it with a thick forest, and the injury done to them by the mere shade of the trees is damnum absque injurid. It is no violation of their rights. The evidence on this point was properly rejected. Exceptions overruled.