White v. Godfrey, 97 Mass. 472

White v. Godfrey

97 Mass. 472 | Mass. | 1867

Foster, J.

We entertain no doubt that the plaintiff owned the land to the centre of the street. By the doctrine now established, such is the presumption wherever a deed bounds an estate by or on a public or private way, unless a contrary intent appears on the face of the instrument. Boston v. Richardson, 13 Allen, 146. He bad therefore sufficient title to maintain this action, unless the acts of the defendant were justifiable. We assume that the powers of the superintendent of streets in the city of Taunton are coextensive with those of an ordinary surveyor of highways. Such officers, by the Gen. Sts. c. 44, § 8, may, with certain exceptions, “ cut down or lop off trees and bushes, and dig up and remove whatever obstructs or encumbers a highway or town way, or hinders, incommodes or endangers persons travelling thereon.” The exception material to the present question is that of c. 46, § 6, which provides that “ the mayor and aldermen, selectmen or any municipal officer of a city or town *475to whom the care of the streets or roads may be intrusted, may authorize the planting of shade trees therein wherever it may not interfere with the public travel or with private rights; and shade trees standing and trees planted pursuant to such license shall be deemed and taken to be the private property of the person so planting them or upon whose premises they stand or are planted, and shall not be deemed a nuisance; but upon complaint made to the mayor and aldermen or selectmen they may cause such trees to be removed, at the expense of the owner thereof, if the public necessity seems to them so to require.” This section is derived from the St. of 1856, c. 256, § 1, but the words “ shade trees standing ” and “ upon whose premises they stand ” were added to the original enactment when the General Statutes were passed. In our opinion this was done in order to enlarge the operation "of the section for the benefit of the owners of estates who had shade trees already standing within the limits of public ways and streets. Its effect is to protect such trees existing before 1856, as well as those the planting of which has been licensed since, from mutilation or destruction except upon a complaint to the mayor and aldermen or selectmen and an adjudication that public necessity requires their removal; a proceeding of which, upon general principles, the owner would be entitled to notice with an opportunity to be heard. This enactment has limited in an important manner the powers of highway surveyors. Shade trees are no longer liable to be treated as a nuisance and lopped or cut down at the discretion of every such officer. They are private property, to the ornament and shelter of which the owner of an adjacent estate is entitled, and they cannot be interfered with except upon due process of law as marked out in the statute. The action is therefore maintainable. Exceptions overruled.