Evening journal., 1895-08-07
THECITY'S TREES
They Are Private Property
and Must Be So Regarded.
THB OIfY sOLICITORs OPINION

Front OF Private Property-Only when
Public Good or Personal Safety De-
mands It Can the Saw aud Axe BE Ussd
Below Is the opinion Of City Solicitor
Herman on the tree question which is now
aeitating the Street and Sewer directors
IL has never been printed, and the pnbli-
cation Of IL In its entirety will do much
to disabuse the minds OF those who have
read the fragmentary news items and
the editorials based thereon:
Sc ,tion XXI Of the city charter in-
vested the Council with power to pass
ordinances to "lay cut" and FIX the
boundries Of streets" to "alter, widen,
extspd and repair" the same ITO direct
the paving Of footways and generally TO
prescribe and regulate the use of the
highways, streets, squares, lanes and
alleys of the city aud to have and
exercise control over the same" and
Section | Of the act OF General sAssembly
OF april 20. 1887, Delaware Laws, 3j3.
lsee charter page 14O conferred upon
the Board at Directors OF the Street aud
Sewer Department 'the same rights
and powers aud the same authority"
over the streets, ETC., as we're then held
and exercised by the Council Of the
city under the charter, laws, ordinances
and regulations appertAining to or In any
manT er made for the government Of said
city" aud further gave the eaid
B jRrd OF Directors of the Street and
Sewer Department "entlre Jurisdiction
and control" OF the streets from build
ing line to building line" These, then,
Gfe the principal powers OF the Board Of
Directors of the Street and Saver De
psrtment as to the streets Of our city
power certainly OF very sweeping
nature. Aud the apple alton OF these
powers TO the Enbject Of trees is.
practically but the application Of them
to an individuals private property lying
aud being in the street or more particu
larly on the sidewalk between the
building lines. The owner Of property
abuttlng on 8 public street or highway
owns the soil thereof In fee to the centre
of the street excepting, OF course, all
such streets the Zee whereof belongs TO
the city itself-all under. all on
and all sb5ve said streets TO
the middle thereof, Is his own
private property. Bat this ownership is
eubjsc TO the right IL the public OF an
easement in the nature Of continual
right Of way or passage on and over said
under the surface of said street and IN
the soil thereof (ior the purpose Of lay
ing pipes, sewers, cisterns, etc 10 a
depth sufficient for the proper and
beneficial enjoyment Of all such legitimate
street uses rs the public good and public
convenience may from time TO time
require But subject to this easement
as above set forth the abuttera rights
and ownership in said soil and every.
thing affixed thereto are absolute and
exclusive. Trees. therefore, being part
Of the realty belong to the abutting
property owner. They are as much his
private property as the house in which
/ be lives. Ordinarily therefore, he
has the right to plant trees on his
sidewalk, and he has the right TO
their shade and to their preservation
against destruction or Injury. Indsed
| It hath ever been and is to-day a policy
OF the common law to encourage the
planting and preservation of healthy and
ornamental shade trees And In many of
the states Of the Union there has been g
certain day of each aud every year
(known as Arbor Day asa legal holiday
for Just such a worthy purpose So that
to Justify the removal OF trees by the
properly constituted authorities (the
Board of Directors OF the Street and
Sewer Department. against the protest
of their owner, will certainly require
that such removal be demanded In the
interest of the public good. aud this
upon one of the three grounds-that
suoh trees are an obstruction, or that
they are a danger, or that they are
q nuisance, TO the health, comfort, safety
or convenience Of the travelling public
II they bs not such, then they eau be
removed only by virtue Of the exercise Of
the power Of the right OF Emiuent
Domain, IA which case, IS with private
property IN general, compensation must
be made TO owner Of said trees for the
taking thereof. But private interest
must always give way to public necessity
and public convenience and II such trsss
be an obstruction, or be danger, or be q
nuisance as above set forth, then they
certainly msy be removed, and this
under the exercise OF the gem
sral police power, In which case
the owner Of said trees Is entitled to no
com mpensation whatever for their 10 10
moval. Aud ia order that trees may
constitute an obstruction IL is not neces
sary that the sidewalk be rendered
imparsablc. l. is enough II they subject
the. travelling public TO delay, danger OF
general Inconvenience. Thus If tree
were plGnted close TO a building II would
clearly be an obstrustloa. so II 1t were
too far from the curb stone; so II II
we're dwerfted or greatly deformed
or II 1t were a tree OF great diA.
meter or unusual dimensious-or If its
roots pushed the curbstone out of place
or loosened and raised the bricks Of the
surrounding pavement, etc. So tree
that might be an obstruction on busy
thoroughtare like Market street would
not necessarily be such on a handsome
resident street such as Broome. And 9
tree would be dangerous il IL were Of q
thorny or prickly kind or II its bark, its
leaves or It's fruit Of 1t bore any we're oI
poisonous nature, or IL II were greatly
decayed or dead, and thus in danger OF
falling. And probably most oi
the above could also properly ba
brought under the heading OF nuisancs
Aud an ordinance passed BY Council ID
the year 1873 (Charter, page 5l1) ex-
prsssiy makes a tree q nuisance thai
obstruots the light from any public lamp
and gives the street commissioner (oov
the Board Of Directors OF the Street and
| Sewer Dspartment) the power to remove