City of Salem v. Salem Gas Light Co. , 241 Mass. 438 ( 1922 )

Crosby, J.

This is an action of tort to recover damages for the destruction of seven shade trees, caused by the alleged negligence of the defendant. The trees were located on Essex Street, in the plaintiff city, near the curbing of the sidewalk, —two on the southerly side of the street and five on the northerly side. The five on the northerly side were in front of premises given to the plaintiff city and occupied as a free public library. The plaintiff’s title to the premises is derived from two deeds to it, both from Mary A. Bertram and others. The description in the first deed commences as follows: “Beginning at the Southeasterly corner thereof at the junction of Essex and Munroe Streets, thence running Southwesterly by said Essex Street about one hundred eighty-four feet to land of George Wheatland;” and in the second deed: “Beginning at the southeasterly corner thereof at the junction of said streets, thence running southwesterly by said Essex Street about one hundred eighty four feet, to land of George Wheatland.” The description bounds the land on the southerly side by Essex Street (a highway), and the grant extends to the centre of the street. Phinney v. Watts, 9 Gray, 269. Boston v. Richardson, 13 Allen, 146. Everett v. Fall River, 189 Mass. 513. Brown v. Peabody, 228 Mass. 52, 55.

The circumstance that the easterly line of the land along Munroe Street as described in the deeds by its lineal measurements ended at the northerly line of Essex Street and not at the centre line of the street, does not affect the conclusion reached; and it does not rebut the presumption that a boundary on a highway is in the centre of the way. Newhall v. Ireson, 8 Cush. 595, 598. Clark v. Parker, 106 Mass. 554. Gould v. Eastern Railroad, 142 Mass. 85, 89. As the deeds conveyed to the plaintiff the fee to the centre of the street, we need not consider whether, as the plaintiff contends, it was the owner of the trees by virtue of St. 1915, c. 145.

The presiding judge ruled that the plaintiff was not entitled to recover for the destruction of the trees on the southerly side of the street. To this ruling the plaintiff excepted.

The bill of exceptions recites that “There was evidence which would justify a jury in finding that in the spring or summer of 1918 the five trees on the northern side of the street were killed by gas which escaped from the defendant’s main on Essex Street.” The questions raised by the defendant’s exceptions are whether there was any evidence of negligence of the defendant in permitting gas to escape and kill the trees on the northerly side of the street; and whether there was any error at the trial in the admission of evidence or in the rulings or refusals to rule of the judge.

The evidence is in part as follows: The gas main was laid in Essex Street by the defendant in 1851, and there had been no repairs upon it from that time until February, 1918. Inspections were made once in ten years, the last being made in 1912. In October, 1915, near the corner of Essex and Munroe streets, there was a strong smell of gas; and the earth was “a greenish color, a dirty, dark color.” On February 28, 1918, the defendant was notified of a leak in the gas main on Essex Street near the trees; a cistern and water gate in the street were filled with gas; the defendant’s workmen made holes in the ground, and all these holes were filled with gas. The next day they found a broken pipe which they repaired temporarily, and made further repairs on it the following day. On March 16, 1918, complaint was made to the defendant of escaping gas in the street, near the library; and the smell was in the boiler room of the library. Repairs were started on March 18, and holes were dug in the lawn in front of the library, one of them about twelve feet from one of the trees. The earth smelled strongly of gas, which had also permeated the cellars of some of the houses in that vicinity. The trees had been strong and healthy .in January, 1918, but in the following spring the leaves thereon crumpled up and dropped off, the limbs became brittle, and finally the tops of the trees died and were removed.

The evidence was ample to warrant a finding that the defendant was negligent in not using proper diligence in inspecting its main pipe in front of the plaintiff’s premises, or in permitting leaks to occur through a defect in the pipe, or in failing to repair the leaks with reasonable promptness after they had been discovered. Bartlett v Boston Gas Light Co. 117 Mass. 533. Smith v. Boston Gas Light Co. 129 Mass. 318. Thompson v. Cambridge Gas Light Co. 201 Mass. 77. Nugent v. Boston Consolidated Gas Co. 238 Mass. 221.

The defendant offered evidence to show that in 1915 the plaintiff laid a water main through Essex Street and in doing that work undermined the defendant’s gas main; and thereby, in connection with the weather conditions, caused the pipe to leak. Whether the leaks were so caused or were due to other factors for which the defendant was responsible, was for the jury to determine.

Upon the question of damages the trial judge properly admitted testimony of the diminution in the market value of the real estate by reason of the destruction of the trees, and as an incident of such damages evidence was admissible showing the cost of cutting off the tops and removing the trees and substituting others in their places. Gilmore v. Driscoll, 122 Mass. 199, 209. Howes v. Grush, 131 Mass. 207, 215. Hopkins v. American Pneumatic Service Co. 194 Mass. 582.

The second request that “The plaintiff is not entitled to recover for damages to the five trees on the northerly side of Essex Street” could not properly have been given. The plaintiff had sufficient interest in the trees as part of its real estate to maintain the action. The judge correctly instructed the jury that to recover “The plaintiff must prove not only that it was gas that killed the trees, but that it was gas that escaped from the pipes of the Gas Company through its negligence.”

The defendant’s fourth, sixth and tenth requests were given in ■substance. The seventh and eighth presented questions of fact for the jury to determine. The seventeenth was immaterial as the defendant admits there was evidence which would justify a jury in finding that in the spring or summer of 1918 the five trees on the northerly side of the street were killed by gas which escaped from the defendant’s main on Essex Street. The eighteenth request was denied rightly; it could not have been ruled that the act of Mackay in cutting off the tops of the trees was an unlawful act. Sheehan’s Case, 122 Mass. 445. Commonwealth v. Wotton, 201 Mass. 81, 84. The trial judge correctly stated the rule relating to the measure of damages; and the requests so far as at variance therewith must be overruled. We find no error in the admission of evidence. The rulings requested, except so far as covered by the charge, were rightly refused; the instructions given were adapted to the evidence and were sufficient.

As the plaintiff states in its brief that it does not desire to have its exceptions considered unless the defendant’s exceptions are sustained, they are treated as waived.

Exceptions overruled.