
    LIABILITY OF MUNICIPALITY FOR UNNECESSARY DESTRUCTION OF SHADE TREES.
    Circuit Court of Tuscarawas County.
    Village of Newcomerstown v. Sheldon Dickenson. 
    
    Decided, December Term, 1905.
    
      Shade Trees — Unnecessary Destruction of, in Improving Street_Municipality Liaible Therefor.
    
    The officers of a municipality, have no right to destroy shade trees growing in the street in front of the property of an abutting owner, unless their removal becomes necessary in order that the space may be used fdr street purposes; and 'an abutting owner who'has been injured by-, the unnecessary destruction of his trees may recover damages from the municipality therefor.
    
      McCarty, J. (orally); Donahue, J., and Taggart, J., concur.
    Error to common pleas court.
    
      
       Affirmed by the Supreme Court without opinion, Newcomerstown v. Dickenson, 77 Ohio St., 597.
    
   This ease presents simply the question as to whether the town council of the village of Newcomerstown had the right to pass a resolution and ordinance which authorized the cutting down and removal of some shade trees. Mr. Dickenson had some valuable maple shade trees in front of his lot. They were pretty near at the street, but were inside the curbing. Council caused at one time an ordinance to be passed for the removal of all trees, and without any notice to him until 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 which the street pavement went around and left inside, and the village authorties proceeded to cut them down, and the action was brought for damages for so doing. And they set up several defenses, 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 second, as to whether the verdict is sustained by proper and sufficient evidence so as to entitle the plaintiff: to recover.

We have carefully gone over the case, 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. Some people'place 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, the authorities violate a property right in removing or interfering with them-.

A motion was made for a new trial in this case, and also for a judgment for the two or three hundred dollars awarded as damages, but the motion for a new trial was overruled and exception taken, and the case came here on a petition in error. We find no error in this proceeding and therefore hold that the judgment should be affirmed with costs.  