§ 391. Cutting or trimming trees - Side of street - New Jersey cases. In New Jersey it is held that power granted by the municipal authorities to construct an electric street railway will confer the right to do whatever is reasonably necessary to effect the end in view, and, therefore, a trolley company may, where reasonably necessary, cut off branches of trees overhanging the street.61 But the grant by the local authorities of the right to construct such a line does not divest them of reasonable control over trees located upon the side of the street or highway.62 § 392. Cutting or trimming trees-Side of street - New York cases.- In a New York case, which was an action by an abutting owner for a trespass on the part of a street railway company in cutting certain shade trees along the side of the street in front of his premises, the claim of the street railway that, having received permission from the local authorities to locate its tracks at the side of the street, it could do so without compensation to the abutting owner, and was not liable in damages for the cutting, was held untenable. It appeared in this case that the abutting owner held the fee to the center of the street, and it was held that a motion for a nonsuit on the ground of there being no evidence that the ownership of the land on which the trees stood was in the abutting owner was properly denied. 63 Under the provisions of the New York Code, treble 61 Dodd v. Consolidated Traction Co., 57 N. J. L. 482, 31 Atl. 980, 5 Am. Elec. Cas. 201. Traction 62 State, Consolidated Co. v. East Orange Township, 61 N. J. L. 202, 38 Atl. 803. 63 Code Civ. Pro., § 1667, providing that if any person cuts down or carries off any tree from the land of another he will be liable for damages. Code Civ. Pro., § 1668, providing that the complaint in such action may state the amount of his damages and may demand judgment for treble the sum so stated, and in case of a decision in favor of the plaintiff awarding him any damages, he is entitled to judgment for treble the sum so awarded. The exception in § 1668, from liability for treble damages, where the verdict finds affirmatively that the injury for which the action was brought was casual and involuntary or that the defendant had probable cause to believe the land was his own cannot be invoked in favor of a defendant, where there is no averment in the answer or proof upon the trial that the entry or the cutting was casual and involuntary or that the defendant had probable cause to believe that the land was damages were allowed, being assessed at three times the differ nece in value of the land in front of which the trees stood before and after the cutting.64 In a later case in New York where it appeared that the abutting owner held title to the center of the street, it was held that a charge to the jury that the defendant, under its grant from the city to erect poles and string wires thereon, could trim away the limbs of trees, where necessary to free its wires from contact with them, but was bound to exercise ordinary care, and which submitted to the jury the question as to whether there had been unnecessary cutting, was sufficiently favorable to defendant.65 And in a more recent case in this State it is decided that without regard to the title to the street an abutting owner, who has planted and nurtured trees with the acquiescence of the city, is entitled to recover damages from a telephone company for any wrongful or wilful cutting or trimming thereof.66 § 392a. Cutting or trimming trees-Side of street - North Carolina case. This question is considered in a case in North Carolina where an action was brought by an abutting owner, who owned the fee to the land upon which the sidewalk was his own. It is however declared that it is not necessary to affirmatively plead that the act of which complaint was made was within the exception for, if the proof warranted, the defendant would be entitled to such a finding. Van Siclen v. Jamaica Electric Light Co., 45 App. Div. (N. Y.), 1, 7 Am. Elec. Cas. 307, 61 N. Y. Supp. 210. 64 McCruden V. Rochester Ry. Co., 5 Misc. (N. Y.) 59, 25 N. Y. Supp. 114, affd., 28 N. Y. Supp. 135. 65 Gorhan v. East Chester Elec. Co., 80 Hun (N. Y.) 290, 30 N. Y. Supp. 125, 5 Am. Elec. Cas. 199. A verdict for plaintiff, allowing damages, was sustained. Evidence was held to be correctly admitted showing that the cutting of the tree had decreased the market value of the premises. 66 Osborne V. Auburn Teleph. Co. (N. Y. App. Div. 1906), 97 N. Y. Supp. 874, wherein it is said: "If these trees were trimmed wantonly and willfully,' the defendant would be liable independent of the question of its right to use the street without the payment of compensation to the abutting owner. The privilege permitted implies the ordinary use for the furtherance of the work within the purpose of the charter of the transportation corporation. If in the exercise of that power the corporation is negligent or wanton in the execution of its business, to the detriment of a contiguous owner. it must pay the penalty of its rashness," per Spring, J. located, against an electric light company for cutting down a tree which stood upon the outer edge of the sidewalk. The tree was removed by the defendants with the permission of the city authorities, for the purpose of more conveniently erecting its poles and stringing its wires. There was no averment or evidence that it was necessary to remove the tree, and the court held that the company could not by the exercise of eminent domain acquire any right to remove trees merely for its convenience in erecting its poles and stringing its wires.67 It was said in this case: "It is suggested that it was more convenient to place the poles and string the wires with the tree out of the way. This falls far short of the essential conditions upon which private property may be taken, or burdens imposed upon it. The record in this case shows that a valuable right of property affecting the comfort, health and welfare of the citizen and his family has been taken upon the suggestion of a private corporation to the Superintendent of Streets, without inquiry by the Board of Aldermen, notice to the plaintiff or any opportunity to be heard in defense of his rights. No person shall be deprived of his property, except by the law of the land, or due process of law — which has been defined to be the right to be heard before he or his property is condemned. This sacred right is binding upon every department of the government and all of its agencies, including municipal and private corporations." 68 * * * $393. Cutting or trimming trees - Side of street Ohio case. In Ohio it is held that an abutting owner, whose title extends to the center of the highway, has a property interest or right in trees upon the side of the highway, and is entitled to the full enjoyment of the same, subject only to the convenience 67 Brown v. Asheville Elec. L. Co., 138 N. C. 533, 51 S. E. 62, citing Joyce on Elec. Law, § 321. 68 Per Connor, J., who also further said: "We have no hesitation in holding that assuming that the Board of Aldermen of the City of Asheville had met and formally granted to the defendants authority to remove the tree, finding that its removal was necessary to put up its poles and wires either for the electric light or street railway, upon and along the sidewalk, such action would not have justified the act of defendants. It was not within the power of the city to deprive the plaintiff of his property for such purpose without compensation." of public travel. 69 In this case it was held that the appropriation of the highways for telegraph lines was a new use, inposing an additional burden. The case was an appeal from the court below, where the plaintiffs in error, employees of the telegraph company, were convicted of malicious mischief, in that they cut certain trees partly on the land of a Mr. Taylor, and partly on the side of the highway, which his premises adjoined. The court said: The trees were of value to the enjoyment of the property. Not only as a matter of sentiment on the part of the owner, who had planted them, and had watched their growth for nearly half a century, but as ar improvement, which added money value to the farm, had Mr. Taylor an interest in preserving them from injury.” It was also said that "he had the right to have the trees remain and grow there without injury, whether such injury was necessary or not to the use of the lines of such telegraph company." § 394. Cutting or trimming trees - Side of street-Cana dian cases. In a Canadian case a telegraph company was authorized by statute to appropriate such land as should be necessary for the construction of its line, subject to the pr vision that it should not "cut down or mutilate any shade or ornamental tree, unless it shall be necessary for the erection. use or safety of its line." In the construction of its line the telegraph company cut off branches from certain trees, which overhung the highway. An action in trespass for such cutting was brought, to which the defendants pleaded the necessity of the cutting. A demurrer to this plea, stating that there were trees on only one side of the highway, and that the telegraph company might have constructed its line on the other side. was sustained, the court holding that it was incumbent upon the defendants to allege and prove the necessity. And in another case in Canada it was held that the owner of private property in the city could maintain an action for damages against a telephone company for injuring ornamental shade trees on the street in front of his property while constructing its line, there 69 Dailey v. State, 51 Ohio St. 348, 46 Am. St. R. 578, 5 Am. Elec. Cas. 186, 37 N. E. 710, per Spear, J. 70 Gilchrist V. Dominion Teleg Co., 3 Pugs. & Bur. N. B. 553. being nothing in the evidence to rebut the presumption of ownership ad medium filum viae or to show that the street had been laid under a statute of the province or dedicated to the public before the passing of any expropriation act." But in another case it was held that a telegraph company had by its charter the right to cut branches off trees overhanging the highways, which interfered with the working of its telegraph lines, but such right did not justify a trespass on private property for the purpose of cutting off such branches.72 $395. Cutting or trimming trees - Side of street-Rule.The rule as deducible from the cases in the preceding sections seems to be that whenever an electrical company has rceived proper legislative and municipal authority to construct its lines in the streets, it acquires power to do and perform all acts which are necessary to effect the purposes intended; and where it is necessary, in the construction or maintenance of its line, to cut or trim trees planted in or by the sidewalk, it may, in the absence of a statutory provision prohibiting such act, cut or trim such trees so far as is reasonably necessary, but will be liable to an abutting owner in damages for any unreasonable and unnecessary cutting. § 396. Trees on private property - Cutting of - Trespass.An electrical company has no power, either under legislative or municipal authority, to enter upon private property for the purpose of cutting off branches of trees overhanging the sidewalk or street. Its right to cut trees, in so far as it possesses such right, is confined within the limits of the streets, sidewalks included, between the front lines of property-holders. If it desires to enter upon private property, outside of these limits, for the above purpose, it must obtain permission from the owner of such property, and if it enters without such permission, and cuts branches from trees growing on such property, it will be liable. to the owner thereof for any injury which he sustains by such 71 O'Connor v. Nova Scotia Teleph. Co., 22 Can. Sup. Ct. 278, two judges dissenting. See also Hodgins v. City of Toronto, 19 Ont. App. Rep. 537. 72 Roy V. Great Northwestern Teleg. Co. of Canada, 2 Rapport's V. |