
    Mary A. Adams, Appellant, v. Syracuse Lighting Company, Respondent.
    Fourth Department,
    March 9, 1910.
    Beal property — rights of owner abutting on public street — injury to shade trees — duties of electric lighting company.
    Although the owner of lands abutting on a public street does not own the fee of the street, he has a right in the nature of an equitable easement to grow and maintain shade trees within the street lines and may maintain an action against a wrongdoer who injures them.
    
      An electric lighting company operating in a city under a municipal franchise and under contract to light the streets has no right to impair the beauty or usefulness of shade trees unless it be necessary to do so in fulfilling its contract with the city.
    Williams, J., dissented.
    Appeal by the plaintiff, Mary A. Adams, from a judgment of the Supreme Court in favor of the defendant, entered in the office of the clerk of the county of Onondaga on the 22d day of January, 1907, upon the dismissal of the complaint by direction of the court after a trial at the Onondaga Trial Term.
    
      D. B. Mageé, for the appellant.
    
      Jerome L. Oheney and Frank J. O'Neill, for the respondent.
   Kruse, J.:

The action is brought for damages for cutting and mutilating the plaintiff’s shade tree. A nonsuit was had and the plaintiff appeals.

The tree which the defendant cut is within the bounds of the street, in front of the plaintiff’s premises, in the city of Syracuse. Her counsel conceded on the trial that she does not own the fee of the street where the tree stands; and it does not appear who owns the fee of the' street. The defendant does not claim' to' own it. The.only right asserted by it is a franchise from the city permitting it to erect, its poles and maintain its lines in the city for lighting purposes and its contract with the city for lighting the streets and public buildings and places of the. city.

' Perhaps it is not very important in this controversy to know who owns the fee of the street where the tree in question stands. The plaintiff in any event had a right in the nature of an equitable easement therein to grow and maintain the shade tree in question and may. maintain an action against a wrongdoer for injuring the tree. (Donahue v. Keystone Gas Co., 181 N. Y. 313.)

The defendant had no right to impair the beauty and usefulness of the tree unless it was reasonably necessary to do so in lighting the streets under its contract with the city, and that, I think, under the circumstances of this.case, was a question of fact for the jury.

Counsel for respondent relies upon the case of Palmer v. Larchmont Electric Company (158 N. Y. 231). That was an action of ejectment brought against a lighting company, the purpose of which was to compel the removal of the lighting company’s poles and wires in front of the plaintiff’s premises, and it was there held that the lighting of a highway was an incident to the use of the highway as a public way, and that the action was not maintainable. But the question here presented was not involved in that case. It is not claimed by the defendant that the tree was cut by the express direction or authority of the city. The defendant relies upon its general franchise and contract with the city. That, I think, does not give it the right to cut and mutilate the shade trees of adjoining owners in the street, capriciously, or even because it may be more convenient for the lighting company to carry on its lighting business. It must be reasonably necessary in lighting the streets to justify the defendant in cutting the trees.

The judgment should be reversed and a new trial granted, with costs to the appellant to abide the event.

All concurred, except Williams, J., who dissented.

Judgment reversed and new trial ordered, with costs to appellant to abide event.  