
    PROPERTY RIGHTS IN SHADE TREES.
    Common Pleas Court of Clinton County.
    Hiram Sparks v. Village of Sabina et al.
    Decided, January 22, 1910.
    
      Municipal Corporations — Action of Council in Determining the Necessity of Street Improvements is Final, When — Property Right in Shade Trees Subject to the Public Right to Improve Street — Sections 3714, 3853, 3629 and 3630, General Code.
    
    1. Whore the council of a village determines that an improvement, within its power to make, is necessary, this decision in the absence of fraud is final, and the improvement will not be enjoined on the ground that it is unnecessary, unreasonable, unjust and arbitrary.
    2. Where the owner of a lot abutting upon a street of a village plants shade trees along the outer edge of the portion designed for sidewalk, prior to the time such portion was improved by paving, his property right in such trees is subject to the right of the public to so improve, although such improvement destroys the trees.
    
      J. M. Morton, fop plaintiff.
    
      G. W. Swcdn, contra.
   Clark, J.

The plaintiff in this action seeks to restrain the defendant village from so improving a certain sidewalk in front of plaintiff’s residence as to destroy five shade trees standing near the outer edge of the walk.

From the pleadings and evidence, it appears that the street, including the sidewalk in question, became a public highway many years ago,, and before these trees were planted. The trees were placed in their present condition by the plaintiff about twenty years ago, and stand along the outer edge of the sidewalk, leaving a space of about-feet between them and plaintiff’s property line. No improvement of this sidewalk appears to have been made by the public authorities until about six years ago, when a brick sidewalk was constructed about five feet in width, extending from the trees to the property line. The improvement was probably done by order of council, although the evidence upon that point is not very clear.

By the contemplated action of the village council, which plaintiff now seeks to enjoin, this sidewalk is to be improved by laying thereon concrete or cut stone to a width of seven feet, which would necessitate the removal of the trees. Plaintiff claims that this plan of improving the sidewalk is “unnecessary, unreasonable, unjust and arbitrary,” and that it will result in the destruction of his property in the trees, without compensation therefor.

The first question to be determined is whether the court should review the finding and decision of the council of defendant village with reference to the necessity and propriety of making the improvement in the manner adopted by it. The Legislature of this state has entrusted to the councils of municipal corporations all matters relating to the improvement of streets and sidewalks, including their construction, control and the removal therefrom of obstructions, as well as the planting and removal of shade trees. Section 1536-232, Rev. Stat. (Gen. Code, 3853); Section 1536-131, Rev. Stat. (Gen. Code, 3714); 99 O. L., 7 (Gen. Code, 3629, 3630.)

When, therefore, the council has exercised its judgment upon the necessity of a given improvement, its decision in relation thereto is final, and not reviewable by the courts, unless the council has acted in bad faith, or has been guilty of so gross an abuse of its discretion as to amount to bad faith. If the court should undertake to measure the judgment of the council in respect to the necessity of an improvement by its own judgment, the effect would be to transfer from the council, where the Legislature has reposed it, to the court and jury the whole matter of determining what improvements are necessary. Iron Ry. v. Ironton, 19 Ohio St., 299; Chase v. Oshkosh, 81 Wis., 313; Vanderhurst v. Tholcke, 113 Cal., 147.

There is nothing in the evidence in this case to warrant the conclusion that the village council is acting in bad faith, or from any other motive than a desire to perform its duties. The fact that the court might differ with members of the council as to the necessity of a sidewalk seven feet wide, is no reason why the judgment of the council should be interfered with.

But it is insisted by plaintiff that he has a property right in these trees and that the contemplated action of the village will deprive him of his property for a public purpose without compensation therefor, in violation of his constitutional right.

It is true, that however imperative the public necessity may be, it can not justify the taking of private property without compensation. But is the contemplated action of the village an appropriation of any of plaintiff’s property? The answer to this question requires a definition of the respective rights of the public and the owner of abutting lands in the highway. When this street was dedicated to, or otherwise acquired by the public, the interest which the public took therein was the right to possess and use the same for all purposes of public travel and transportation, and to make such improvements thereon as might be necessary or convenient for such purposes; that interest which the owner of abutting lands retained was a qualified ownership, differing in some respects from the interest of the general public and including the right to such use of the ground occupied by the highway as is not inconsistent with the right of the public as before defined. ■

That this qualified ownership is the property of plaintiff which can not be taken from him without compensation is not open to debate in this state. Crawford v. Delaware, 7 Ohio St., 459.

But the real question is, whether plaintiff’s qualified property referred to includes the right to plant and perpetually maintain in their position these trees. If this right is not inconsistent with the rights of the'public as before defined, then plaintiff still has that right; otherwise hot.

We have seen that the determination of the village council with reference to the necessity- of the proposed improvement is conclusive of that question. Even if it were open to be determined by this court, it is not at -all clear that the evidence introduced would show that the proposed improvement is unnecessary. But, as before observed, that question is not open.

Upon the whole, it appears clear that the right which plaintiff seeks to assert is one inconsistent with the rights conveyed to the public by the dedication of the highway, and therefore must give way to the proposed improvement.

It appears that the plaintiff planted these trees long after the highway had been dedicated or otherwise acquired, and in doing so he acted at his peril, incurring the risk of having his trees removed if the public necessity should require it.

The case does not fall within the principle announced in the eases of Crawford v. Delaware, supra, and Cincinnati & S. G. Ave. St. Ry. v. Cumminsville, 14 Ohio St., 523, 547, that, “when the public has taken possession and regularly defined the interests and improvements necessary for its uses, by establishing grades, etc., lot owners have the right to assume this exercise of authority as a final decision of the wants of the public, and to make their improvements in reference to it."

Prior to the planting of the trees in question the “public" had taken no step to define its necessities in the highway. The only act suggesting any limitation of its right to the whole space was the act of plaintiff himself in planting the trees; and the construction by council many years afterward of the narrow brick walk could have no effect upon its right to make subsequent improvements.

The restraning order heretofore granted must be dissolved and judgment rendered for defendant.  