Thе plaintiff, on October 18, 1959, while working in his yard, was hurt when struck by a limb blown from a decayed tree on adjoining premises. Each action is in tort and based upon negligence and the maintenance of a nuisance. The cases were referred to an auditor whose findings of fact were to be final. In the action against the city he found that the city was negligent but that the tree did not constitute a nuisance. In the Norling case he found for the defendants. The judge ordered judgments accordingly on thе auditor’s report. The city appealed. The plaintiff appealed in the Norling case, but waives that appeal in the event that the order for judgment against the city is upheld.
Liability for damage caused by the defective condition of premises turns upon whether a defendant was in control, either through ownership or otherwise. This is the elementary rule
(Frizzell
v.
Metropolitan Coal Co.
The city first contends that it did not have title to and control of the real estate. Title to the lot, which, although in a residential area, was itself undеveloped and wooded, was acquired by deed in 1942 by the late Beatrice R. Nor-ling, whose administrator and heirs at law are the defendants in the Norling case. She died on August 10, 1951. Previously on September 29, 1950, the city recorded.in the registry of deeds an instrumеnt of taking made on August *286 11, 1950, pursuant to Gr. L. c. 60, §§ 53, 54, 1 for nonpayment of taxes assessed in 1949. On May 28, 1953, a notice of foreclosure was recorded stating that on May 25, 1953, the city had filed a petition in the Land Court against Beatrice R. Norling seeking to foreclose the tax title acquired by the instrument of taking made on August 11, 1950. See Gr. L. c. 60, <§65 (as amended through St. 1938, c. 305). 2 On September 16, 1960, a “Notice of Disposal in Tax Lien Case” dated August 25,1960, and “executed by the Land Court,” was recorded in the registry of deeds. This stated that there had been entered in the Land Court a dеcree foreclosing and barring rights of redemption to the Norling lot. See G-. L. (Ter. Ed.) c. 60, § 74. At all material times the city had a tax title property department and a tax title property custodian 3 in accordance with Gr. L. c. 60, and, to the extеnt permitted by that chapter, engaged in the operation, maintenance, control, and sale of tax title property. 4 On December 19, 1960, the Norling lot was transferred to the jurisdiction of the school department by order of the city council.
1. The city argues that the taking pursuant to § 53 vested title subject to the right of redemption, and under § 54 its title was held only as security until redemption or until the right of redemption was foreclosed; in other *287 words, that it did not have absolute title, would have bеen able to keep only the amount of its lien in the event of a taking by eminent domain, and before the right of redemption was foreclosed could not have collected any rents.
The plaintiff, on the other hand, argues that there is а distinction in § 54 from the statutory provisions respecting a tax sale. Under Gr. L. c. 60, § 45 (as amended through St. 1938, c. 339, § 1), a collector’s deed conveys the land to the purchaser
1
subject to the right of redemption, and until there is redemption or the right of redemption is foreclosed, the title thus conveyed is held as security. The section also provides: “No sale . . . shall give to the purchaser any right to possession of the land until the expiration of two years after the date of the sale.” Without the last quoted sentence, added by St. 1918, c. 257, § 49, possession would follow the tax title. See
Perry
v.
Lancy,
The Legislature has not shown a clear intention that the time of a municipality’s right to possession should vary with the method of acquiring title. We do not decide whether the city’s right to possession followed the vesting of title subject to redemption under § 54, namely on September 29, 1950, some nine years before the plaintiff’s injury, or whether the two year delay prescribed in §§ 45 and 50 should be applied. In any event the city’s right to possession long preceded the date of injury.
2. The next contention of the city is that, at most, title would be held in its governmental capacity rather than in its proprietary capacity (see
Worcester
v.
Commonwealth,
In this Commonwealth the
Jones
and
Wershba
cases make it clear that trees can be a nuisance as much as can a dilapidated building or other structure. Compare
Cork
v.
Blossom,
3. The auditor has made a restricted finding that the tree was not a nuisance. It was the duty of the judge, and is now our duty, to enter the correct judgment on the auditor’s report.
Union Old Lowell Natl. Bank
v.
Paine,
We summarize the subsidiary findings of the auditor. In December, 1954, a large elm tree was situated in the southeast corner of a lot which was bounded by that of the plaintiff on the east and by Gosnold Street on the west. This was the lot which Beatrice R. Norling acquired by deed. Both lots are bounded on the south by land of the city called the Andover Street school lot. The tree was about twelve feet distant from both its easterly and southerly boundaries, and was clearly visible from the plaintiff’s lot and from the school lot. It was not readily noticeable from Gosnold Street but could be seen from that street if made the subject of a specific search. The tree became afflicted with the dutch elm disease. It was about thirty-five feet tall, and the diameter of its trunk was about twenty inches. In the spring of 1955 shortly after the plaintiff bought his property, the tree had very little foliage. In 1956 its leaves did not come out, and before the end of the year it had lost all the bark on its major branches and most of the bark on its trunk. It was thеn dead. In August, 1958, one of its three remaining large branches came down *290 in a windstorm and fell across a fence on the boundary of the plaintiff’s lot. About a week later in response to a telephone call, a representative of the park department of the city went into the yard and looked at the tree.
On October 18, 1959, the wind blew hard, but winds of this strength had been experienced in the neighborhood on many occasions before and after that date. The plaintiff was wаlking in his yard, when he heard a cracking sound, looked up, and saw a heavy limb falling toward him. He and his three year old nephew were knocked down. The plaintiff was rendered unconscious. His skull was fractured, his left arm broken in two places, and his left wrist frаctured. The limb was about ten inches in diameter and at least ten to fifteen feet in length, and joined the trunk not less than twenty feet from the ground. It was one of the two remaining main branches. ‘ ‘ There was no evidence that the tree was weak or decayed prior to October, 1959, other than what could reasonably be inferred from the fact that it was dead, that many but not all of the small branches were missing, that all of the bark was missing from its large limbs, that most of the bark on the trunk was loose or had fallen off, and that a heavy limb had blown off in August of 1958 in a windstorm.”
On the subsidiary findings and the reasonable inferences therefrom, there was, as early as 1956 when the tree died, a private nuisance as to the plaintiff and his property. "While not a public shadе tree (see G. L. [Ter. Ed.] c. 87, § 1;
Cody
v.
North Adams,
This private nuisance was nonetheless one merely because the city had acquired the lot through foreclosurе for nonpayment of taxes. Public policy in a civilized community requires that there be someone to be held responsible for a private nuisance on each piece of real estate, and, particularly in an urban area, that there be no oases of nonliability where a private nuisance may be maintained with impunity.
4. In the action against the city the order for judgment for the plaintiff is affirmed. In the action against the Nor-lings the plaintiff’s appeal is waived.
Bo ordered.
Notes
Section 53 (as amended through St. 1933, c. 164, § 3) provides in part: “If a tax on land is not paid within fourteen days after demand therefor and remains unpaid at the date of taking, the collector may take such land for the town [city].” Nothing is said as to when the municipality is to have the right of possession. Cf. G. L. e. 60, § 45, relating to a purchaser who receives a collector’s deed at a tax sale, infra, p. 287.
Section 54 (as amended through St. 1938, e. 339, § 2) prescribes the form of the instrument and for its recording within sixty days of the datе of taking, and further provides in part: “Title to the land so taken shall thereupon vest in the town [city], subject to the right of redemption. Such title shall, until redemption or until the right of redemption is foreclosed as hereinafter provided, be held as security for the repayment of said taxes.”
Section 65 provides in part: “After two years from a sale or taking of land for taxes . . . whoever then holds the title thereby acquired may bring a petition in the land court for the foreclosure of all rights of redemption thereunder. ’ ’
See G. L. c. 60, § 77B, inserted by St. 1947, c. 224, § 1.
See G. L. c. 60, § 52, as amended through St. 1936, e. 392, § 1.
Where a city is the purchaser, the deed to it confers upon it the rights and duties of an individual purchaser. G. L. e. 60, § 50 (as amended through St. 1941, e. 319, § 1).
The principle of municipal immunity has been strongly criticised. Fuller and Casner, Municipal Tort Liability in Operation,- 54 Harv. L. Rev. 437. McQuillin, Municipal Corporations (3d rev. ed.) § 53.24a.