Miller v. Detroit, Ypsilanti & Ann Arbor Railway

Grant, J. (after stating the facts). The principal and important question in the case is, Has a street railway company the right to remove shade trees within the limits of the public highway, for the construction of its road as established by the township authorities, without compensation for damages ? The same principle was involved in Wyant v. Telephone Co., 123 Mich. 51 (81 N. W. 928, 47 L. R. A. 497). We there distinctly held that a telephone company had the right to cut out the branches of the trees along the public highway under a franchise similar to that here conveyed. The same necessity may exist for the removal of trees as may exist for the removal of their branches. The principle is the same in either case. It is established beyond controversy that municipal authorities have the entire control over their highways, streets, and sidewalks, and may remove shade trees whenever they are an obstruction to the use of the highway for public travel, without compensation to the owner. Vanderhurst v. Tholcke, 113 Cal. 147 (45 Pac. 266); Everett v. City of Council Bluffs, 46 Iowa, 66; Wilson v. Simmons, 89 Me. 242 (36 Atl. 380). It is true that these trees were lawfully planted, and that they are the private property of the abutting owner. It is also true that one planting trees in the public highway plants them with the understanding that they can remain there only so long as the space occupied by them is not required for public use. These roads are not an additional servitude, as we have repeatedly held. When, therefore, their construction is duly authorized, it logically follows that the company has the right to remove from the highway any obstruction which interferes with the proper construction and operation of the road. Such power is necessarily implied. Dodd v. Traction Co., 57 N. J. Law, 482 (31 Atl. 980); Southern Bell Telephone Co. v. Francis, 109 Ala. 224 (19 South. 1, 31 L. R. A. 193, 55 Am. St. Rep. 930). When a man dedicates his land for a public highway, or it has been condemned for that purpose and he has been compensated, it is definitely [173] understood by him that whatever he may lawfully do within the boundaries of that highway is done with the right of the lawful authorities to appropriate the entire width of the highway for purposes of travel, if it shall become necessary. Street railways, in city and country, have come to be regarded as a public necessity, and their construction upon the highways universally sanctioned If the township authorities may remove any obstruction to the public use, there seems to be no sound reason why they may not authorize street-railway companies, telephone companies,.and the like to do so, when such companies are lawfully entitled to the use of the streets. It is conceded that the township authorities in this case were authorized to grant the franchise to the defendant, and to determine in what part of the highway its road should be constructed. The township authorities might possibly fix, as a condition to the grant, the payment of damages for the destruction of shade trees. The legislature undoubtedly has the power to provide thát abutting owners should be compensated for the damage that must result to them in the destruction of their trees. . That, however, is a matter for the determination of the legislature, and not for the courts. The legislature has granted the power to do it without compensation. The township authorities have not provided for it. Courts are therefore powerless. But there is one fatal defect in the defendant’s proceedings. It secured no greater rights by its franchise than the municipality had. The law gives neither the right to remove shade trees without notice to the owner, and an opportunity given to him to remove them as he may see fit. Clark v. Dasso, 34 Mich. 86. Under that decision plaintiff was entitled to recover for damages, and the judgment must, therefore, be affirmed. See, also, Stretch v. Village of Cassopolis, ante, 167 (84 N. W. 51). Judgment affirmed. Montgomery, C. J., Moore and Long, JJ., concurred with Grant, J.