Penal Code, § 652, provides that: "A person who willfully and without authority or necessity drives any team, vehicle, cattle, sheep, horse, swine or other animal along upon a sidewalk is punishable by a fine of $50, or imprisonment in the county jail not exceeding 30 days, or both."

Shade trees.-Trees generally which stand upon land over which a highway is laid out are for the proper use of the owner or occupant of the adjoining land, see Highway Law, § 156, post.

The owners of adjoining lands are especially authorized by this section to plant shade trees along highways, or to otherwise improve or beautify the lands in the highways adjacent to their premises, provided there is no interference with the use of such highways. Palmer v. Larchmont Electric Co. 6 App. Div. 12 (Rev'd on other grounds, 158 N. Y. 231).

Where shade trees are so set out the owner of the adjoining premises is entitled to have such trees protected against negligent or willful destruction at the hands of third parties, even though he does not own the fee of the highway. Lane v. Lamke, 53 App. Div. 395. See also Edsall v. Howell, 86 Hun. 424.

The right to the protection of shade trees vested in the owners of adjoining lands is subservient to the proper and legitimate use of the highway by the public. So where an electric light company, organized pursuant to the Transportation Corporation Law, has secured the consent of the proper authorities for the erection of its poles and the stringing of its wires, such owners cannot complain if the company in the reasonable exercise of its legitimate powers trims or injures such trees. Farmer v. Larchmont Electric Co. 158 N. Y. 231. The question as to whether or not the use of public highways in the country by electric lightning corporations is within the proper public use of such highways is in all cases determined by the necessity of the light for the proper use of such highways. Idem.

Where an abutting owner is entitled to the fee of the street to its center, he has the right to prevent the removal of trees, if such removal would work an irreparable injury to his premises, unless such trees have become detrimental and destructive to the highway, or interfere with its full use by the public. Evans v. Street Commissioners of Hudson, 84 Hun, 206.

Where the owner of adjoining premises owns the land upon which the highway is situated, such owner may remove the trees standing on such highway, notwithstanding statutes or municipal ordinances forbidding any person to injure shade trees on the highway. Village of Lancaster v. Richardson, 4 Lans. 136.

Willful injury of shade trees.-A person who willfully cuts down, girdles, or otherwise injures a fruit, shade or ornamental tree standing on the lands of another, or the people of the state, is guilty of a misdemeanor. Penal Code, § 640, sub. 2.

L. 1875, ch. 215, as amended by L. 1881, ch. 344, reads as follows:

"§ 1. It shall be unlawful for any person or persons whatsoever, in this state, to hitch any horse or other animal to, or leave the same standing near enough to, to injure any fruit or forest tree that has been transplanted or used as a shade or ornamental tree around any school house, church or public building, or along any public highway, or to cut down or mutilate, in any way, any such ornamental or shade trees; but the right of property owners along highways to cultivate, train and use such shade trees shall not be impaired or abridged hereby.

§ 2. Any person or persons guilty of violating the provisions of section one of this act shall be liable to prosecution by any person, before any justice of the peace in the town where the offense is committed, and punishable by a fine not exceeding ten dollars, nor less than one dollar, besides the costs of action for each offense or for each tree cut down or mutilated in violation of the provisions of this act; and every such penalty, when collected, shall be paid by the justice, one-half to the overseer of the poor of the town in which recovery was had, and the remainder to complainant, and the same process and means for the collection of the penalties imposed by this act may be issued and had as are now allowed by law for the collection of damages in actions of tort, but no provision of this act shall operate to interfere with any ordinance of the incorporation of villages and cities of this state, intended to secure the protection of shade trees therein.”

The order of the commissioners permitting the planting of trees or the construction of sidewalks along highways may be in the following form:

FORM NO. 32.

Order Permitting Planting of Trees or Construction of Sidewalks.

We, the undersigned, commissioners of highways of said town, do hereby authorize L. M., at his own expense, to locate and plant trees (or locate and construct sidewalks) along the highway adjoining his premises, in highway district No........ in said town, according to a map or diagram hereto attached and made a part of this order. 19....

Dated this..

.....day of...

A. B..

C. D.

E. F.,

Commissioners of Highways.

(Map or Diagram Showing Location of Sidewalk and Tree Planting.) Here make a diagram showing location of trees to be planted or sidewalk to be laid.

§ 44. Abatement of tax for shade trees.-Any inhabitant liable to highway tax, who shall hereafter, pursuant to such an order, transplant by the side of the highway adjoining his premises, any forest shade trees, fruit trees, or any nut bearing trees, suitable for shade trees, shall be allowed by the overseers of highways, or other officer having charge of the highway, in abatement of his highway tax, one dollar for every four trees set out; but all trees must have been set out the year previous to such allowance, and be living and well protected from animals at the time of the allowance, and not further than eight feet from the outside line of any highway three rods wide, and not more than one additional foot further therefrom, for each additional rod in width of highway, and not less than seventy feet apart, on the same side of the highway, if elms, or fifty feet, if other trees; trees transplanted by the side of the highway, in place of trees which have died, shall be allowed for in the same manner. Such abatement of highway tax to any person, shall not exceed onequarter of his annual highway tax in any one year; but such abatement shall be allowed by the overseers of highways, or other officers having charge of the highway, annually, until it shall have equalled the whole number of trees set out, at the rate herein specified.

§ 45. Sidewalk tax anticipated in towns under labor system; sidewalks in towns under money system.-The commissioners of highways of any town, may, upon the written application of

a majority of the inhabitants in any highway district, subject to assessment for highway labor therein, authorize not more than one-quarter of the highway labor of the district, or of the commutation money received therefor, to be expended under the direction of the overseer of highways of the district, in the construction, repairs and improvement of any sidewalks within the limits of the district, and may by writing signed by them, filed with the town clerk, authorize not more than one-fourth of the highway labor of the district, to be anticipated for not more than three years, for constructing, improving or repairing any such sidewalk; and thereupon any person or corporation, assessed for highway labor in the district, may, for such purpose, anticipate his or its assessment for highway labor for the term prescribed by the commissioners, and may perform such labor, under the direction of the overseer within such time, or commute therefor. The commissioner of hghways of any town which has adopted the money sytem of taxation for improving its highways may with the consent of the town board, expend a portion of the money raised for the maintenance of its highways in maintaining and repairing existing sidewalks in such town. The town board of any such town may on the petition of not less than twenty-five taxpayers of the town, by resolution, direct the commissioner of highways to construct a sidewalk along a described portion of any highway of the town, in a manner and not exceeding an expense to be specified in the resolution, and the expense of constructing such sidewalk shall be a town charge, and assessed and levied in the same manner as money raised for the maintenance of highways in such town. (Amended by L. 1904, chap. 688).

The application to expend a portion of the highway labor upon the construction of sidewalks, and the authority granted by the commissioners to make such expenditure may be in the following form:

FORM NO. 33.

Application to Expend Money on Sidewalks.

To the Commissioners of Highways of the Town of..............

County of....

We, the undersigned, a majority of the inhabitants of highway district No........, in the said town of...................... ....................., subject to assessment for highway labor therein, hereby make application and request that you authorize the expenditure of (not more than one-quarter) of the highway labor or commutation money of said district to the construction, improvement and repairs of the sidewalks in said district for the term of (not exceeding three) years pursuant to section 45 of the Highway Law.

We, the undersigned commissioners of highways of said town, hereby authorize the overseer of highway district No........, in said town, to anticipate and expend (not exceeding one-quarter) of the highway labor commutation money received therefor, in said district, for the term of (not exceeding three) years, in the construction, improvement and repair of the sidewalk within the limits of said district, pursuant to sections 45 and 46 of the Highway Law. Dated this............ .day of...

19....

A. B.,
C. D..

E. F.,

Commissioners of Highways.

§ 46. Certificate of anticipation.-The overseer shall give to such person or corporation, upon the performance of such labor or commutation therefor, a certificate signed by him, showing the number of days' labor so anticipated and worked, or commuted for by such person or corporation; and in each succeeding year, upon presentation of such certificate, the person or corporation shall be credited and allowed by the overseer of highways, with the performance of the number of days labor assessed for such year, until the credit shall equal the number of days stated in the certificate to have been anticipated, and shall indorse thereon a statement signed by him, showing the credit and allowance.