be trimmed or removed, the abutting owner could hold neither the city nor the company liable.

Ala

§ 387. Cutting or trimming trees - Side of street bama case. The facts in this case were practically the same as those in the case mentioned in the preceding section. The court said: "The appellees' ownership of the trees, whether the latter were planted by them on the sidewalk, or acquired by devolution of title to the adjacent property, was and is a qualified and limited ownership, subordinate to the public right to safe and convenient passage, and to the rights, powers and duties of the governing municipal body in the protection, promotion and establishing of every public use in and upon the streets in a city. In respect of all such matters, the private right of the owner of the abutting property to maintain the trees must yield to the paramount public right whenever the necessity may arise, although, until such necessity does arise, the owner is clearly entitled to the enjoyment of all the benefits which may result to his property from such trees, and to protection from their destruction, or mutilation by others. *** In principle we can perceive no substantial difference between the exercise of that right in the cases above suggested" (reference to certain cases where city would have power to remove trees)" and where the removal of the trees may become necessary in locating upon a street, a public work, authorized by law to be placed upon the street, and especially where such public work is employed by the city in so important and vital a matter as the support of wires used by the city in connection. with its fire department." 49 But where no necessity for such cutting exists, or where the cutting exceeds the necessity, then the company will be liable for such unnecessary damage to property.50

49 Southern Bell Teleph. & Teleg. Co. v. Francis, 109 Ala. 224, 19 So. 1, 55 Am. St. R. 930, 31 L. R. A. 193, 6 Am. Elec. Cas. 160. In both this and the case in the preceding section the poles were used to support a wire owned and used by the

city for its fire alarm service. See also Postal Teleg. Cable Co, v. Brantley, 107 Ala. 683, 18 So. 321. 50 Southern Bell Teleph. & Teleg. Co. v. Francis, 109 Ala. 224, 19 So. 1, 55 Am. St. Rep. 930, 31 L. R. A. 193, 6 Am. Elec. Cas. 160.

§ 388. cut case

Cutting or trimming trees - Side of street - ConnectiStatute. In Connecticut it was provided by the statute in reference to telegraph or telephone lines that such lines should be so constructed as not to "injure any tree without the consent of the owner.' 99 51 Under this statute it was held that the selectmen of a town have no power to authorize the cutting or trimming of trees by a telegraph or telephone company without such consent.52 And where it was shown that ornamental shade trees added $150 to the value of the abutting property, such amount was held to be properly allowed in an action by an abutting owner against a telephone company for cutting such trees. It was also held in this case that the action being for injury to land, the measure of damages could not be controlled by the value of the tree as wood or timber.53

ana case.

§ 388a. Cutting or trimming trees - Side of street - IndiIn an Indiana case in which a demurrer to a complaint, in an action against a telegraph company for cutting trees on the highway, was sustained, the complaint being held insufficient, it was, however, said by the court: "An abutting proprietor who owns the fee in land upon which a highway is located, is the owner of the soil, and of trees growing thereon and of mines and quarries thereunder so far as such ownership is not inconsistent with the public use. The municipality alone has the right to these, only in so far as they are necessary in the construction and maintenance of the way for the public use. Such an abutting proprietor, as to shade trees growing in front of his property and upon land the fee of which he owns has the rights and remedies of the owner of a feehold, subject only to the public casement." 54

§ 388b. Cutting or trimming trees - Side of street-Michigan cases. This question is considered in a case in Michigan where an action of trespass was brought by an abutting owner for cutting and trimming trees growing in plaintiff's close and Teleph. Co., 60 Conn. 385, 22 Atl. 957.

51 Conn. Gen. Stats., § 3944. 52 Bradley v. Southern New Eng. Teleph. Co., 66 Conn. 559, 34 Atl. 499, 32 L. R. A. 280, 6 Am. Elec. Cas. 162.

53 Hoyt v. Southern New Eng.

54 Western Union Teleg. Co. v. Kreuger, 30 Ind. App. 28, 64 N. E. 635, 8 Am. Elec. Cas. 214, per Robinson, J.

in the highway adjacent thereto so as to admit of the stringing and operating of the wires of the telephone system of the defendant, and it was decided that a telephone company had the power to cut and trim trees in a proper case and manner without any liability to an abutting proprietor to whom it was only answerable for any unnecessary, improper or excessive cutting.55 And in a later case in this State it is decided that where the construction of an electric street railway is duly authorized, the power to remove from the highway any obstruction which interferes with the proper construction and operation of the road is necessarily implied, and that this power includes the right to remove shade trees within the limits of the public highway, though such trees were lawfully planted and are the private property of the abutting owner. 56 It was,

55 Wyant v. Central Telephone Company, 123 Mich. 51, 81 N. W. 928, 7 Am. Elec. Cas. 256, 47 L. R. A. 497. The facts in this case are shown by the following extract from the opinion. "The finding shows that the defendants' servants, when constructing its telephone line along the highway, trimmed out some branches of trees (some standing within the highway, and some in plaintiff's close), so that the wires might not come in contact with the branches, thereby becoming broken or grounded; that it was done in a reasonable manner, and that no more cutting or trimming was done than was necessary; and that to do this, its servants took down the road fence, and, with a team and heavily loaded wagon, drove upon plaintiff's growing wheat 'inside' (probably meaning outside') the highway,' and at the same time cut off certain limbs from all of the trees." In the lower court a judgment for $25 was rendered from which the defendant appealed. The lower court also found as a conclusion of

56 Miller v. Detroit, Ypsilanti & A. A. Ry. Co., 125 Mich. 171. 84 N. W. 49, 7 Am. Elec. Cas. 387. The court referred to Wyant v. Central Telephone Co., 123 Mich. 51, 81 N. W. 928, 7 Am. Elec. Cas. 256, 47 L. R. A. 497, and said: "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 true that these trees were lawfully

however, decided in this case that the law neither gives 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.

§ 389. Cutting or trimming trees-Side of street - Mississippi case.— In Mississippi it is held that though county boards of supervisors are given power by statute to authorize the erection of telegraph lines in highways, yet they cannot grant permission to cut or remove trees upon the margin of the highway.56a Though the cutting of trees by the employees of a telegraph company may be done in violation of the orders of the superintendent of the company and in his absence, yet the company may be liable for damages to the abutting owner.

57

§ 390. Cutting or trimming trees - Side of street - Missouri case. In Missouri it is held that, where the title of the abutting owner extends to the center of the street, he may, under the constitutional provision that private property shall not be taken or damaged without just compensation,58 recover damages for the cutting of the limbs and tops of shade trees in front of his property by a telephone company.5

59

§ 390a. Cutting or trimming trees - Side of street - Nebraska case.- In a case in Nebraska an abutting owner brought

use.

*

planted, and that they are the pri vate 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 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 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.

If the township authorities may remove any obstruotion 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," per Grant, J.

56a Clay v. Postal Teleg. Cable Co., 70 Miss. 406, 11 So. 658.

57 Clay v. Postal Teleg. Cable

Co., 70 Miss. 406, 11 So. 658.

58 Mo. Const., art. 2, § 21. 59 McAntire v. Joplin Teleph. Co., 75 Mo. App. 535, 1 Mo. App. Repr.

420.

an injunction to restrain a telephone company from mutilating or cutting certain trees which had been planted by her in the street along and adjacent to her property under the provisions . of a municipal ordinance, and it was decided that though the right of an abutting owner to so maintain shade trees was recognized, yet an injunction would not be granted but the plaintiff should, in this class of cases be left to his remedy at law for damages. 60