McCarthy v. City of Boston

Field, J. Our attention has not been called to any special laws relating to trees in the city of Boston, except the St. of 1799, c. 31. Section 5 of this act provides that “no person shall plant any tree in any street in the said town of Boston, without leave first obtained from the surveyors of highways, who shall have power to remove the same.” It does not appear from the report when the accident happened; but, assuming that the Public Statutes correctly represent the statutory law as it existed at that time, surveyors of highways and road commissioners had authority to cut down and lop off trees and bushes in highways, town ways, or streets, except such as are needed for shade trees. Pub. Sts. c. 52, § 10. The planting and protection of shade trees in streets are regulated by the Pub. Sts. c. 54, §§ 6-12. Whether the Pub. Sts. c. 54, § 9, or the corresponding provisions in earlier statutes, have been accepted by the city of Boston, does not appear in the report; nor does it appear whether the city of Boston has ever accepted the St. of 1867, c. 242. We have no judicial knowledge on the subject, although it is stated in the Ordinances of the City of Boston (ed. 1876) 585, n., that apparently the first have not been accepted, and on page 863, that the last was accepted by the city council on October 1, 1867. The decision of this ease, however, does not depend upon the acceptance by the city of the St. of 1867, c. 242. In reference to shade trees, it is provided that, “ upon complaint made to the mayor and aldermen, selectmen, or road commissioners, 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.” Pub. Sts. c. 54, § 6. In the city of Boston the board of aldermen are the surveyors of highways, and have the powers of selectmen. St. 1854, c. 448, §§ 33, 41. The tree in this case was not the property of the city, and, whether it was a shade tree or not, the board of aldermen alone [200] had the rightful power to determine that it should be cut down. The superintendent of streets performs his duties under the direction and control of the board of aldermen. By the St. of 1854, c. 448, § 39, it is provided that the city council shall have “ the care, custody, and management of all the property of the city, with power to lease or sell the same, except the Common and Faneuil Hall.” The provision in the ordinance relating to the Common and public grounds, that “the superintendent of the Common and public grounds shall, under the direction and control of the city council, or a joint committee thereof, have the care and superintendence of the Common, Public Garden, and all the public squares and enclosures belonging to the city, and also the trees in the streets of the city,” cannot be held to empower him to cut down a tree, in a street of the city, which belongs to the abutter, whether it be a shade tree or not. There may be trees in the streets of the city which the city owns by reason of owning the fee of the street, or from acquiring title in some other manner. Over these trees, the city has the rights of an owner, and the city council may properly commit the care of them, under its direction, to the superintendent of the Common and public grounds, and it is not necessary to construe the ordinance as an attempt on the part of the city council to exercise an unlawful authority over trees in streets belonging to abutters. If the superintendent of the Common and public grounds, in attempting to cut down this tree, was acting under the power of the board of aldermen to remove shade trees, or to remove obstructions from the streets, the city is not responsible for his acts. The board of aldermen in performing these duties act as public officers, and not as agents of the city. Barney v. Lowell, 98 Mass. 570. Haskell v. New Bedford, 108 Mass. 208. Fisher v. Boston, 104 Mass. 87. Hill v. Boston, 122 Mass. 344. Cushing v. Bedford, 125 Mass. 526. Buttrick v. Lowell, 1 Allen, 172. Walcott v. Swampscott, 1 Allen, 101. Hafford v. New Bedford, 16 Gray, 297. Bigelow v. Randolph, 14 Gray, 541. If the superintendent was not acting under this power, he was acting without authority of law, in a matter over which the city council had no control; and even if the city council had attempted to give him authority, as it was beyond its powers, [201] the city would not be responsible for his acts. Lemon v. Newton, 134 Mass. 476. But for the permission to cut the tree down given by the abutter, if it were a shade tree, the superintendent would have been a trespasser, as there was no adjudication by the board of aldermen that public necessity required it; White v. Godfrey, 97 Mass. 472; and if it were not a shade tree, it could only be cut down by the proper authority, for the purpose of improving the street. Makepeace v. Worden, 1 N. H. 16. Tucker v. Eldred, 6 R. I. 404. It is unnecessary to consider the other objections to the maintenance of the action. Judgment on the verdict.