Tate v. . Greensboro

AVERY, J., dissents arguendo, in which McRAE, J., concurs. By consent of the parties the court found the facts upon the pleadings and the testimony, submitting to the jury the issue in regard to damages. It was agreed that if, upon the facts as found, the court should be of the opinion that the defendants or either of them were liable, judgment should be rendered in favor of the plaintiff and against such defendant or defendants for the sum of $300, with interest from ____ August, 1892, and costs, the said sum being the amount of damages assessed by the jury, otherwise the verdict should be set aside and judgment be rendered against the plaintiff for costs. Pursuant to said agreement the court found the following facts:

The plaintiff on 3 August, 1891, and for several years prior thereto, was and had been the owner of, and with her husband resided upon, a lot in the city of Greensboro situated on Asheboro Street, adjoining the lots of W. R. Murray and others and bounded as follows (as described in the complaint);

That Asheboro Street was on said day, and had been for several years prior thereto, a public street and highway in said city of Greensboro, held and maintained as such and used by the citizens of said city to pass and repass on foot and in vehicles and worked upon by the street force in the employment and under the control and direction (394) of the authorities of said city. That prior to the plaintiff's purchase of the said lot the owner thereof had dedicated to the said city, as and for a public street, the land upon which the trees hereinafter referred to were standing and growing, together with the space of from five to six feet for a sidewalk; that the plaintiff after the purchase and at the suggestion of some adjoining landowners set the fence back two and a half feet, thus making the sidewalk eight feet wide; that on the outer edge of the sidewalk, and within the line of the curbing in front of the plaintiff's said lot and dwelling house situated thereon, there was standing on and before the said day, and at the time of plaintiff's purchase of said lot, three oak trees of considerable size, which cast shade upon said dwelling house and lot, contributing to the comfort thereof as a dwelling place; that the leaves on the said trees obstructed the rays of the sun and so shaded the street as to cause the same for a portion of the time to be and continue damp; that there was near the front gate of the plaintiff's lot, before the said trees were removed as hereinafter set forth, a hole formed by a depression in the soil, in which mud and water stood and at times created an offensive odor, which was increased by green limbs and leaves thrown into mud holes by direction of the street force of said city; that on said 3 August, 1891, the space between the said trees and the plaintiff's fence was not uniform for the entire length of said fence, but averaged about eight feet, being at no point less than seven feet, and afforded room for persons to pass in the usual manner upon said sidewalk without inconvenience; that by section 60 of the character of the city of Greensboro (see Private Laws 1889, ch. 219) it is provided that the board of aldermen shall have power to grade, macadamize and pave the streets and sidewalks, and to (395) lay out, change and open new streets or widen those already open and make such improvements thereon as the public convenience may require; that section 12, chapter 1 of the ordinances of the city of Greensboro provides: "There shall be appointed by the mayor at the first regular meeting after organization in 8 May, standing committees of four members each as follows, to wit: . . . street committee." Section 13 of the said ordinances provides: "The street committee shall have control and supervision of all matters relating to the streets, sidewalks, and pumps of the city, and shall determine the amount of labor and material to be used . . . and shall report to the board from time to time, and perform all other duties imposed upon them by the board of aldermen."

That pursuant to the provisions of the ordinances above set forth the defendants, J. L. King and H. L. Scott, together with J. D. Glenn and J. R. Mendenhall, were duly appointed a street committee for the year 1891; that complaint having been made to the said street committee by some of the citizens of said city respecting the condition of said street, the defendants King and Scott severally conferred with J. R. Mendenhall, and they concurred in the conclusion that the said trees should be removed. No formal meeting of the said committee was called or held in regard to said matter.

That pursuant to said conclusion the defendants John L. King and Hugh L. Scott directed the said street force of said city to remove the said trees, and on 3 August, 1891, the said street force began the removal of said trees by digging them up by the roots and concluded the work in two or three days. The trees were cut into logs and placed in the plaintiff's yard. The husband of the plaintiff was present and objected to the removal of said trees, and notified the defendants (396) that they would be held responsible therefor. That no action was taken or order made by the board of aldermen in respect to the removal of said trees, nor was any report made by the said street committee to the said board in regard to their action in the premises; that after the removal of the trees the mud hole was filled in by the city authorities with rock and the street so improved that it is now in good condition. The hole could have been filled in without removing the trees.

The court, upon the foregoing facts, being of the opinion that the plaintiff was not entitled to have and maintain her action, directed the verdict rendered by the jury, whereupon the plaintiff submitted to a nonsuit and appealed. It is contended by the plaintiff, first, that even admitting that the act of which she complains — the destruction of shade trees standing on the outer edge of the sidewalk in front of her residence in the city of Greensboro — was done by the duly authorized agents of that municipal corporation, she is still entitled to recover for the damage done to her property by the cutting down of these trees, because his Honor has found that they did not obstruct the passage of persons on the sidewalk, that the public convenience did not require their destruction, and that the "mud hole" in the street, for the removing of which this act seems to have been done, could have been remedied without cutting them down.

This phase of the case presents for our consideration this question: Can the courts review the exercise by the city of Greensboro of its power to repair and improve its streets and remove what it (397) considers obstructions therein, and find and declare that certain trees in the streets of that city, which the municipal authorities honestly believed were injurious and obstructive to the public, were in fact not so, and upon such findings, there being no allegation of negligence or of any want of good faith on the part of the city, award damages to an abutting proprietor, the comfort of whose home has been lessened by the removal of the trees?

The street in which these trees stood was dedicated to public use as a street by those under whom the plaintiff claims title. Holding control of this street by reason of its dedication only, the city, nevertheless, has exactly the same rights therein and responsibilities therefor as if it had been by deed of the owner conveyed to the corporation for use for street purposes, or had been condemned and taken for those purposes according to the provisions of the charter. And the rights of the plaintiff therein are no greater than if it had been so conveyed or so condemned and taken. Now the responsibilities that counties and townships assume, or are put under by the law, in relation to their highways is very different from those of cities and towns in relation to their streets. It is required that roads shall be kept in repair, and certain individuals, upon whom is cast in one way or another the burden of seeing that these repairs are made, can be indicted for failing to perform this duty, but the municipality (county or township) is not held liable for damages that may result from the roads being out of order or obstructed. Cities and towns, however, are held to strict pecuniary accountability for the condition of their streets. They are not political divisions of the State, made by it for convenience in its government of the whole, but are corporations chartered presumably at the request of the inhabitants, and granted privileges and charged with (398) corresponding responsibilities. Among the very gravest of the pecuniary responsibilities that the law imposes on cities and towns is liability for damages to persons and property caused by a defective or improperly obstructed street. Bunch v. Edenton, 90 N.C. 431; White v.Commissioners, ib., 437. Hence it is that the law gives to all such corporations an almost absolute discretion in the maintenance of their streets, considering, it seems, as is most reasonable, that wide discretion as to the manner of performance should be conferred where responsibility for improper performance is so heavily laid. Illustrative of this is the provision of The Code, sec. 3803, that the commissioners of towns "shall provide for keeping in proper repair the streets and bridges of the town inthe manner and to the extent they may deem best." We think that under its charter and under the general law of the State (The Code, ch. 62, Vol. II), the city of Greensboro was clothed with such discretion in the control and improvement of its streets, and if damage comes to the plaintiff by reason of acts done by it, neither negligently nor maliciously and wantonly, but in good faith in the careful exercise of that discretion, it is damnumabsque injuria. Smith v. Washington, 20 How., 135; Brush v. Carbondale,78 Ill. 74; Pontiac v. Carter, 32 Mich. 164.

It is not to be denied that the abutting proprietor has rights as an individual in the street in his front as contradistinguished from his rights therein as a member of the corporation or one of the public. The trees standing in the street along the sidewalk are in a restricted sense his trees. If they are cut or injured by an individual who has no authority from the city to cut or remove them he may recover damages of such individual. His property in them is such that the law will protect it from the act of such a wrongdoer and trespasser. Bliss v. Ball, 99 Mass. 597, and Graves v. Shattuck, 35 N. H., 257 (69 (399) Am. Dec.), are illustrations of this principle. In the former case the court, speaking of the injury done by defendant to the trees in the street in front of plaintiff's lot, said: "If the defendant thought they were a nuisance, he might have complained to the selectmen, and it was for them to decide the question whether they should be removed. . . . The defendant had no authority to remove them, nor were the jury authorized to decide the question whether they ought to remain"; and thus that authority seems abundantly to sustain the position that it is not for a court and jury to review the conduct of the proper municipal authorities in such a matter as that now under consideration. In Barnes v. District of Columbia, 91 U.S. 540, it is said: "The authorities state, and our own knowledge is to the effect, that the care and superintendence of streets, alleys and highways, the regulation of grades and the opening of new and the closing of old streets are peculiarly municipal duties. No other power can so wisely and judiciously control this subject as the authority of the immediate locality where the work is to be done."

The wisdom of this rule is well illustrated by this action. Complaints were made, it seems, by citizens that these trees were injurious to the public way and, in their effects, perhaps, to the public health. The proper authorities of the city, clothed with the power to repair the streets and protect the public health, listened to these complaints, and in the exercise of their best judgment, so far as appears, decided that the interest of the community required their removal. The proposition of the plaintiff is that a jury shall judge of the correctness of this conclusion, and if they find that the officials committed what they think was an error, they and the city shall be mulcted in damages. "The maintenance of such an action would transfer to court and jury the discretion which the law vests in the municipality, but transfer (400) them not to be exercised directly and finally, but indirectly and partially by the retroactive effect of punitive verdicts upon special complaints." Cooley, Const. Lim., 255 (6 Ed.)

Phifer v. Cox, 21 Ohio St. 248, which plaintiff's counsel cited in their brief, related to a county road, and the alleged wrongful cutting of plaintiff's hedge was done by a private citizen. So it has no application, we think, to this case, and belongs to the same class of decisions asGraves v. Shattuck and Bliss v. Ball, supra.

Bills v. Belknap, 36 Iowa 583, also cited, relates to the cutting down of trees standing in a highway in the country, and the action was to restrain the supervisor of the road. In Everett v. Council Bluffs,46 Iowa 66, also relied on by plaintiff, which was a suit to enjoin the defendant from cutting down certain shade trees in front of plaintiff's lot, the petition alleged that the trees were "perfectly safe and sound and afforded no obstruction to the free use of the street and sidewalk," and stated reasons why they should not be removed. The defendant made no answer, and as the Court said the allegations of the petition were taken as true, and so it appeared by the admission of the defendant that its officers were about to do, under its orders, a wrong to the plaintiff, which, because it conceded that the public interest did not in any way require it to be done, would be wanton and unnecessary. We think that case is clearly distinguishable from the one now under consideration.

The principles which govern in this matter are well stated in Chase v.City, 81 Wis. 313, an action for damages for cutting down shade trees, very similar to the one we are considering, from which we make the following quotation: "The right of the public to the use of the street for the purposes of travel extends to the portion set apart and (401) used for sidewalks, as well as to the way for carriages, wagons, etc., and, in short, to the entire width of the street upon which the land of the lot owner abuts. As against the lot owner the city, as trustee of the public use, has an undoubted right, whenever its authorities see fit, to open and fit for use and travel the street over which the public easement extends to the entire width, and whether it will so open and improve it, or whether it should be opened or improved, is a matter of discretion to be determined by the public authorities to whom the charge and control of the public interests in and over such easements are committed. With this discretion of the authorities courts cannot ordinarily interfere upon the complaint of the lot owner so long as the easement continues to exist. . . . The public use is the dominant interest, and the public authorities are the exclusive judges when and to what extent the streets shall be improved. Courts can interfere only in cases of fraud and oppression, constituting manifest abuse of discretion. It necessarily follows that for the performance of this discretionary duty by the city officers in a reasonable and prudent manner no action can be maintained against the city."

Having shown, as we think, that the plaintiff cannot recover of the city, we come to consider her second proposition — that she can recover damages of "the other defendants, King and Scott, not as the servants or agents of the city, but as independent tort feasors," as it is stated in the brief of her counsel. In other words, it is proposed that the cause of action as against the city shall be abandoned, and the cause proceed against the other defendants upon the theory that they had no authority from the city to do the act complained of.

We think the power given to the city over the streets could be delegated to a street committee composed of members of the board (402) of aldermen, as this one was; that this action was the action of that committee, and therefore of the city, and that just as these individuals would have been answerable in damages to the plaintiffs, if the act had been beyond the power of the municipality, so they are not liable if the act was within those powers. All went to show that the individual defendants were acting as agents and officers of the city. They so assert. The city so insists, and distinctly ratifies their act. Therefore, as the city has done no legal wrong, neither have they.

Affirmed.