Town of Durant v. Castleberry

Cook, J., delivered the opinion of the court. The question in this ease to be decided is : Did the plaintiffs have a right to recover damages on account of the loss of the trees for shade and ornament, should the jury believe from the evidence that it was reasonably necessary to destroy the shade trees to make the sidewalk safe and convenient for passageway? To present this defense the town of Durant requested these instructions, which were refused, viz.: “The court instructs the jury, for the defendant, that if they believe from a preponderance of the evidence that the sidewalk where the trees were felled had been continuously and uninterruptedly used by the general public with the knowledge of the respective owners of lot 268, and that such use was exclusive and under claim of right [705] and for a period of ten years prior to the cutting of said trees, and if the jury believes from the evidence that it was reasonably necessary to make said sidewalk reasonably safe and convenient for passageway to cut and remove said trees, then the town had a right to cut and remove the same, and the jury will not assess any damage against the defendant on account of the loss of said trees for shade and ornament.” ‘ ‘ The court instructs the jury that it will not assess any damages against the town on account of the loss of said trees for shade and ornament.” Whatever rights the abutting owner may have had in the streets, his rights must yield to the paramount right of the public to a convenient and safe passageway; and the “incidental right of fitting the way for use.” There seems to he no conflict in the authorities, so far as we are able to judge, upon this question. Municipalities may, in proper cases, remove shade trees from the streets without incurring any liability, although the abutting owner may be damaged by their removal. The easement over the streets is a paramount right, to which the convenience of individual property owners must give way. If the removal of the trees was unnecessary and arbitrary, appellees would he entitled to recover damages for their removal; but if the removal of the. trees was reasonably necessary in order to improve the highway, the inconvenience, and loss of appellees should not he considered by the jury. It was error, therefore, to refuse the instructions asked by appellant. Reversed and remanded.