
    MUNICIPAL CORPORATIONS — STREETS.
    [Tuscarawas (5th) Circuit Court,
    December Term, 1905.]
    Donahue, McCarty and Taggart, JJ.
    
      Newcomerstown (Vil.) v. Sheldon Dickenson.
    Damases from City may be Recovered for Unnecessary Destruction of Shade Trees in Street.
    The council of a municipality has no right to destroy shade trees growing in the street unless it is necessary to do so for the purpose of using the ground for street purposes and an abutting owner who is injured by such unnecessary destruction caused by the city may recover damages from the city.
    [Syllabus approved by the court.]
    Error to common pleas court.
    
      
      Affirmed, no op., Newcomerstown v. Dickerson, 77 O. S. 597.
    
   McCARTY, J.

This case presents simply the question as to whether the town council of the village of Newcomerstown had the right to pass a resolution, or resolution's, and ordinance by which they would cut down and remove some shade trees. Mr. Dickenson had some valuable maple shade trees in front of his lot. Now, it was pretty near at the street, yet they were inside the curbing and they caused at one time an ordinance to be passed to remove all trees, and without any notice to him except he got notice about the time they were commencing to cut them down, that they were to remove his trees. "Well, he had three large maple trees in his lot where the street pavement came out and went around and took those inside and they proceeded to cut them down, and the action was brought for damages for that. And they set up a defense to it, among other things, that they ought not to have been taken down, and three or four of those defenses were demurred to, and overruled and exceptions taken, and so the whole matter is before us on error whether the court below did right, first, in holding that demurrer to those grounds of defense ought not to have been sustained, and as to whether the verdict is sustained by proper weight of evidence so as to entitle the plaintiff to recover. We have carefully gone over this thing and have reached the conclusion that, the town council did not have any right to cut down those shade trees unless it was necessary to take them out for the purpose of using the ground for street purposes. Do not have any right to take down and remove shade trees. Some people place-a great deal more stress on shade trees than they do upon anything else. Some people nourish them and cherish them and live under them and prefer to have them allowed to remain and they object when anybody interferes," and whenever it is unnecessary to take them away for any other purpose than for the purpose of streets they are violating a right that they do not have any right to do.

A motion was made for a new trial in this ease, and a judgment for the two or three hundred dollars, do not remember exactly what the amount was, was not very much, but the motion was overruled and exception taken, and then came here to us on a petition in error. We find no error in this proceeding and therefore hold that the judgment should be affirmed with costs and exceptions taken and will have the usual time to prepare a bill of exceptions.

Donahue and Taggart, JJ., concur.  