Evening journal., 1895-08-07

make them so. They must actually and
as matter OF fact, be SO. And, II to an
action brought by an aggrieved property
owner against the members Of said Board
Of Directors Of the Street aud Sewer
Department for the improper and
unlawful removal Of trees a Jury
should find that such trees
were not Instructions. etc the members
or member Of said board removing or
causing to be removed said trees would
likely be compelled personally to respond
in damages to the owner Of said trees 30
unlawfully removed. And the same
result would ensue II said board should
abuse its discretionary powers and will
fully OF wantonly cut down q tree or
trees that never should have been cut
down, thsy will bs personally liable in
damages. And rs the property In trees
Is vested In the abutting property owner
it is only just and proper that
he should first be notified TO remove
such tree or trees as the board
Of Directors OF the Street and Sewer
D partment desire TO bSve removed. Aud
this especially II the trse be live one,
10 order that the owner Emay transplant
It TO -some other proper and lawful
place Bat II such owner should not act
in reasonable .-.tims the board could
then do 30 and upon tine lowner's paying
the cost Of such removal the board
should Immediately return said tree or
trees to the owner thereof And II the
owner should not pay the said cost
within reasonable time, the board
conld then sell said tree or trees and
after dsducting all cost of removal
therefrom return the surplus, If any,
to said owner This may seem
to be trihlng matter, but n
the Board should disregard it and after
the removal Of said tree 10y which word
removal we mean, ana have meant.
where 10 has above been used, the mere
cutting down, or staking up out Of the
earth Of said tree or treae) should convert
II TO its own use, it would also BE- liable
In damages to the owner OF said tree or
trees-as 1t Is q settled principle Of law
that when an officer In the exercise OF q
legitimate power exceeds that power hs
becomes trespasser alb initio and
personally liable to the aggrieved for
Whatever injury he may have done
him. And the cost In such cases may
amount to many times the value OF the
tree or tress so unlawfully converted
But If the board does not exceed its
lawful powers 20 as to become a tress
passer ab snitlo, and especially II IL acts
in good faith and for the public good, it
may be said that courts will not be
inclined to exercise a too critical super
vision over the ex srcise Of their dlscre
tionary powers, as to when a tree or trees
become an otstruc i1r, OF dtnger, or q
nuisance TO the travelling public The
DO Rer and authority to reno ge trees. OF
course, implies the power to trim
them, and TO protect them
from Injuries OF any nature but
this matter Is already covered by a city
ordinance passed by Council ia the yeaI
( 1862 (Ohsrter page 5lD by which suita
Bile penalties are visited upon thos,
violating any Of its provisions The
board n IL should not feel that thil
ordinance Is sufficient can, by resolution
properly adopted, amend II or so much
OF it, as applies to trees bet ween the
building lines, so as to make II to conform
to whatever IN It's judgment Il deems
necessary to give trees \ proper protec
ton The only restriction upon It's
powers Is that the penalty shall not b,
unreasonable. The board Of directors Of
the Street and Sewer Department Ia the
proper and lawful xsrclse Of it's police
power, by virtue OF a resolution first
made and adopted, may also prohibit
property owners from planting trees Oh
their sidewalks without a written permit
from said board first bad and obtained
though this Is a delicate matter anc
should be exercised with great
care aud all due regard for the tastes
feelings and pr perty rights Of th,
abuttipg owners The city OF Boston
has had such q law for a hundred o
years, and as early as the Both o.
October, 1856, our own Council passed
the following ordinance. Ever,
person shall De at liberty with the per
the City Council TO plant tree
In such outer lge within the curbston,
and not more than nine inches In thl
nearest part OF It Trees already planted
shall not be subjected 10 this ordinanc
OF the City Council for their removal
(Chaater page All For some reason
perhaps through inadvertance, (sincl
this paragraph, (tourth) also referred q
awnings, which was the subis sct thei
under consideratiou) the Board o.
Directors OF the Street and Sewer Do
! l-HAC4 oeA0 q
said ordinance on the 23d Of May. 1898
and substituted nothing In lieu thereof
We have already stated that the Boar,
Of Directors Of the Street an,
Sewer Department Is now in
vested with the same powers over
streets between the building lines
that Council formerly had, ana a
Council as early as the above mentionel
date passed the aforesaid mentionel
ordinance land there is no question as &
its eonstitutionality) this OF itself shoull
free the board from all doubt about III
own authority 90 adopt a resolution Z
the same effect And the reason VIII
the said board should exercise thi
exclusive control over the planting o
trees is, that otherwise, improper o
unhealthy trees might be planted By tn
property owners or they might plan
so deep and in such places as {
cause the strong roots thereof in time I
seriously interfere with gas. water and
other pipes placed under the soil. 81
they might not be planted deep enougl
so that the roots In time would raise ans
displsce the bricks OF the pavement AM
push the curb out of position, etc
The indlscri inmate planting o.
trees like everything else is caps
bic of great abuse whether aris