200 Mass. 175 | Mass. | 1908
The defendant was found guilty upon.an indictment framed under the R. L. c. 208, § 100, as amended by the St. 1902, c. 544, § 30, alleging that he “ wilfully and maliciously and wantonly did injure a tree, standing for a useful purpose, of the property of Minnie M. Glendon.” This was a large cherry tree standing near the line of the street, within its owner’s enclosure, and it had large branches extending over the street. One part of the trunk, about fourteen inches in diameter, extended over the line of the street about nine feet above the ground. One Nickerson obtained from the proper authorities a permit to move a building through the street, around the corner, into another street. Mrs. Glendon’s lot at and near the corner abutted on both streets. The building was five feet longer and about a foot and a half wider than that described in the permit, and therefore the authority given did not justify the removal of this larger building through the street. Under R. L. c. 52, § 13, which applies to cities
Its length and width were such that it was necessary to carry it over a part of Mrs. Glendon’s land near the corner of the street, and to cut down a small tree in her yard, and Mrs. Glen-don agreed with Nickerson that this might be done. Its width was so great, and houses upon the other side were so located, that it could not be taken through the street without cutting off branches and a part of the trunk of the cherry tree. The owner
The first question that arises is, What is the authority of a tree warden under It. L. c. 51, § 10. Does it include a right to cut down trees, or to cut off parts of trees, standing on private land outside of the boundary lines of the street ? We are of opinion that it does not. The surveyors and road commissioners, under the last clause of this section, should cause parts of such trees to be removed if they obstruct the way, or endanger, hinder or incommode persons travelling thereon. In the early part of the section an exception is made of “ public shade trees in towns ; ” but trees and bushes standing in ways may be trimmed or lopped off, or, in pursuance of a vote of the mayor and aider-men, selectmen or road commissioners, passed after public notice and a hearing, may be cut down and removed by the officer who has the care of trees belonging to a city or town. But this part of the section has reference only to trees and bushes “ standing in ways.” The defendant had no legal right to cut off the branches of the tree, and the ruling on this part of the case was correct.
The defendant’s counsel presented seventeen requests for rulings, some of which are covered by what we have said, and many of which relate to the meaning of the word “ wantonly,” used in the indictment. Under this indictment it was not necessary to prove that the defendant acted maliciously. Indeed, the Commonwealth did not contend that the charge of malicious action was sustained, and the judge
The judge instructed the jury that “ an act done heedlessly, without regard to the propriety demanded by the circumstances of the case, and in reckless disregard of the rights of others, with a total absence of care, amounting in this case to gross negligence by the defendant in the discharge of his duties as tree warden, would be an act done wantonly.” We are of opinion that a manifestly injurious act, done wilfully, in reck
We are also of opinion that there was evidence to which the instructions were properly applicable, and which well warranted the finding of the jury. There were a variety of circumstances tending to sustain the contention of the Commonwealth. The defendant admitted in cross-examination that he had not at any time taken any steps to inform himself as to his powers, duties and authority as tree warden, except that he asked the mayor what he should do and was told to lop off trees in the highway which would obstruct carriages or the apparatus of the fire department; that he had never read any of the statutes or other sources of information concerning it, except that he looked once or twice in a book sent him by the State forester; that he had not seen anything in that concerning his duties in such a case as this; that he took no steps to inform himself as to his powers, duties or authority after Mr. Nickerson made complaint about this cherry tree; that, he did not attempt to ascertain what the permit was, or whether the building was of the dimensions given in the permit; that he made no inquiry of the mayor or the city clerk, and did not consult the city solicitor, although he knew he had a right to ask the city solicitor about it. It also appeared that he began the cutting
Exceptions overruled.
The city in this case was Fall River.
Dana, J.