56 N.J.L. 474 | N.J. | 1894
The' opinion of the court was "delivered by
The writ of certiorari in this case removed' into this court an ordinance passed by the mayor and council of the borough of Vineland, May 9th, 1893, entitled “An ordinance for the removal of obstructions from Landis avenue and to decláre what are nuisances therein between Eighth-street and East avenue, within the borough of Vineland.”' This ordinance declared that certain trees on the northern and southern border of Landis avenue, between Eighth street- and East avenue, and the grassy portions of said avenue on each side, are obstructions and nuisances in said avenue, and the road committee was directed to remove the same May 18th,. 1893.
The borough claims the right to pass this ordinance and-remove the trees and grass plots in question under paragraph 2, subdivision 1, of section 12 of “An act for the formation of borough governments,” approved April 5th, 1878. Pamph. L., p. 407; Rev. Sup., p. 46, § 14, ¶ 1. This paragraph gives the mayor and council of said borough power topase, enforce, alter or repeal ordinances to take effect within the limits of said borough for the following purposes, to wit: “ 1. To declare what shall be considered- nuisances in the-streets, roads, lots and places in said borough and to prevent and remove all obstructions, encumbrances and nuisances in and upon any street, road, lot, sidewalk, enclosure or other-place in said borough.”
This language does not authorize municipal authorities to-
A thrifty tree in a public highway, the fee of the soil of which is in the abutting landowner, belongs to the abutting landowner (unless it has been planted by the public authorities), and he may have trespass against any person who cuts down any such trees growing on the side of the road and left there for shade or ornament, for the freehold remains subject only to the easement or right of passage in the public. Nothing is more common everywhere in our villages and agricultural districts than for the owners and occupiers of the soil to have fruit, shade and ornamental trees along the line of the public roads—sometimes in the line of the roads, sometimes on each side of the line—and it has been held that a road overseer cannot arbitrarily cut them down, and if he did it in an improper case and maliciously, he was held liable to exemplary damages upon suit of the owner of the fee of the soil. Winter v. Peterson, 4 Zab. 524, 527, 529; cited with approval in Wuesthoff v. Seymour and Wheelock, 7 C. E. Green 66, 70; Bloom v. Stenner, 21 Vroom 59, 60. These standing trees were part of the inheritance, and a sale of them would have been a sale of an interest in land under the statute of frauds. Slocum v. Seymour, 7 Id. 138.
If these trees were nuisances, trespass would not lie for their destruction- by municipal authority. It is clear that these thrifty, ornamental shade trees are neither obstructions nor nuisances to Landis avenue, and the attempt to abate them as such is an exercise of arbitrary power unwarranted in law under the act invoked by the borough authorities.
There is also a serious question in this case as to the extent of the dedication of that part of Landis avenue referred to in the ordinance. Charles K. Landis, the owner of lands at "Vineland and its founder, laid out the lands in question (with other- lands), and he testifies that his surveys and survey-books show the line of shade trees and grass plots, and the lands show it, as they have been in use for about thirty years
Dedication of a street must arise from some act of the owner of the land, and may be made cum onere. State v. Society, &c., 15 Vroom 502; Ayres v. Pennsylvania Railroad Co., 19 Id. 44, 48; 23 Id. 405, 410.
The public cannot get anything more than he gives, and if
It is not meant to intimate in this case what power is given to the borough under the act entitled “A supplement to an act entitled ‘An act for the formation of borough governments,’ approved April 3d, 1878,” approved March 13th, 1883. Pamph. L., p. 96; Rev. Sup., p. 49, § 30. That act gives the borough authorities “ general supervision, management and control.of the streets, avenues, roads, public places and sidewalks within the borough.” The destruction of these trees as nuisances or obstructions cannot be justified under this act. Should the borough attempt to exercise absolute control over Landis avenue, under this act, the question will then properly arise as to whether or not the dedication of Landis avenue was not a restricted dedication, contemplating the existence of these trees as part of the design and plan of
The ordinance is set aside, with costs to the prosecutor.