§ 1 Public Shade Trees Defined.
All trees within a public way or on the boundaries
thereof shall be
Public shade trees; and when it appears in any
proceeding in which p of or rights in a tree are material to the issue,
that, from length of time or otherwise, the boundaries of the highway cannot
be made certain by records or monuments, and that for that reason it is
doubtful whether the tree is within the highway, it shall be taken to be
within the highway and to be public property until the contrary is shown.
(1899, 330, § 2; RL 53, § 12; 1908, 296, § 2; 1910, 121,
1915, 145, § 2, 13.)
Total Client-Service
Library References
Shade trees, see 39 Am jur 2d, Highways, Streets, and Bridges 11 168, 189,
190,
ANNOTATED LAWS OF MASSACHUSETTS
C.87
(1912) 211 Mass 561, 98 NE I 081.
Trees on a boulevard are public
shade trees within this section. for the boulevard is a Public way.
Public shade trees. that is, trees within a public way (other than a state
highway) or on its boundaries may generally be removed
only by the tree warden, and not by him without a public hearing. and not
by him without approval by the selectmen or mayor if
written objection has been made. Medford v Metropolitan
DST. Corn. (1939) 3o3 Mass537, 22 NE2d 110.
The removal of trees on a
boulevard is within the control of the metropolitan district commission,
and the provisions of this chapter are not applicable. Medford v Metropolitan
Dist.
Corn. (1939) 303 Mass 537, 22 NE2d 110.
§ 2. Powers Tree Wardens.
The tree Warden of a town
may appoint and remove deputy tree wardens. He and they shall receive such
compensation as the town determines or, in default thereof, as the selectmen
allow. He shall have the care and control of all public shade trees,
shrubs and growths in the town, except those within a state highway, and
those in public parks or open places under the jurisdiction of the park
commissioners, and shall have care and control of the latter, if so requested
in writing by the park commissioners, and shall enforce all
the provisions of law for the preservation of Such trees, shrubs and growths.
He shall expend all money appropriated for the setting out and maintenance
of such trees, shrubs and growths, and no tree shall be planted within
a public way without the approval of the tree warden, and in towns until
a location therefor has been obtained from the selectmen or road commissioners.
He may make regulations for the care and preservation of public shade trees
and establish
fines and forfeitures of not more than twenty dollars in any one case for
violation thereof; which, when posted in one or more public places, and,
in towns, when approved by the selectmen, shall have the effect of town
by-laws. (1996, 190, §§ 2, 4; 1897, 428. § 1; 1899,
330, I§ 1, 2; RL 53, § 12; 1908, 296, § 2; 1910, 321; 1915,
145, I§ 2, 13.)
§ 3 SHADE TREES C. 87
town or city in which he is appointed. Donohue
v Newburyport (1912) 211 M ass 561, 98 N E I 08 1.
This and 3 of this chapter confer upon the tree
warden absolute power respecting the setting out, care, maintenance and
removal of shade trees and the enforcement of all provisions of law for
their preservation, with the exception of trees under the jurisdiction
of park commissioners, but of those also upon request of the park commissioners,
and with the further exception that no shade trees shall be planted within
a public way without license
from the selectmen or road commissioners where such authority has been
vested in them. Donohue v Newburyport (1912) 211 Mass 561, 98 NE
1081.
§ 3. Cutting of Public Shade Trees; Hearing.
Except as provided by section five, public shade
trees shall not be cut, trimmed or removed, in whole or in part, by any
person other than the tree warden or his deputy, even if he be the owner
of the fee in the land on which such tree is situated, except upon a permit
in writing from said tree warden, nor shall they be cut down or removed
by the tree warden or his deputy or other person without a public hearing
and said tree warden or his deputy shall cause a notice of the time and
place of such hearing thereof, which shall identify the size, type and
location of the shade tree or trees to be cut down or removed, to be posted
in two or more public places in the town and upon the tree at least seven
days before such hearing and published in a newspaper of general circulation
in the city or town once in each of two successive weeks, the first publication
to be not less than seven days before the day of the hearing or if no such
local newspaper exists then in accordance with the provisions of section
six of chapter four; provided, however, that when a public hearing must
be held under the provisions of this section and under section fifteen
C of chapter forty prior to the cutting or removal of a tree, such hearings
shall be consolidated into a single public hearing before the tree warden
and the planning board, or if there is no planning board, the selectmen
of a town or the city council of a city, and notice of such consolidated
public hearing shall be given by the tree warden or his as provided herein.
Any person injured in his property by the of the officers in charge of
the public shade tree as to the trimming, cutting, removal or retention
of any such tree, or as to the awarded to him for the same, may recover
the damages, if any which he has sustained, from the town under chapter
seventy nine. (1867,242, § 1; PS 54, §§ 1O, 11; 1896; 190,
§ 3; 1897, 428, § 1; 1899, 330; 3, RL 53, 13; 1908, 296, §§
3, 4; 1915, 145, §§ 3, 13; 1978, 114, 1979, 552, 20)
ANNOTATED LAWS OF MASSACHUSETTS
C. 87
The 1979 amendment rewrote the first sentence, adding provisions for consolidated hearing where scenic roads are involved.
Cross references-
As to penalty, see 6.
As to the application of the
law of eminent domain to the removal of trees, see 1 of ALM GL c 79.
ALR Annotations
Liability of governmental
unit for injuries or damage resulting from tree or limb falling onto highway
from abutting land. 95 ALR3d 778.
CASE NOTES
The remedy given by this section to a Person who
suffers injury is not given for mere neglect to remove a tree
which stood in the public highway and which fell upon the house of an adjoining
owner, when there has been no public hearing, Cody v North Adams (1928)
265 Mass 65,164 NE 83.
Where there bar. been no public hearing in the
matter, the retention of a decayed public shade tree in a highway by the
officer of a city in charge, whether such retention is or is not negligent,
gives no remedy under this section, to the of a house damaged by the fall
of owner the tree upon it. Cody v North Adams (1928) 265 Mass 65, 164 NE
83; Jones v Great Barrington (1929) 269 mass 202 , 168 NE 779. The power
of a tree warden to remove or authorize the removal of a public shade tree
is limited by the provisions of this section, requiring a public
hearing before he acts or authorizes action in the matter. ]ones v Great
Barrington (1930) 273 Mass 483 . 174 NE 118. In view of the design
and purpose of the board of public works to make available for public
travel a larger portion of certain land already within the boundaries of
a way as previously laid out, the proper procedure for dealing with the
trees is by holding a public hearing under this section and 4. Graham
v Board of Public Works (1934) 285 Mass 544, 189, NE 820.
§ 4. Approval of Mayor or Selectmen Required if Objection Made.
Tree wardens "shalI not cut down or remove or
grant a permit for the cutting down or removal of a public shade tree if,
at or before a public hearing as provided in the preceding section, objection
in writing is made by one or more persons, unless such cutting or removal
or permit to cut or remove is approved by the selectmen or by the mayor.
(1915, 145, § 4.)
§ 5 SHADE TREES C. 87
CASE NOTES
St 1915, c 145, from which this and 13 of
this chapter are derived. pursuant to long-established policy, is applicable
to the municipality of Holyoke which is not in terms excepted from its
provisions Whiting v Board of Public Works (1915) 222 Mass 22, 109 NE 728;
Graham v Board of Public Works (1934) 285 Mass 544, 189 NE 820.
Under the provisions of this section, no
one except a tree warden or his deputy may trim, cut or remove a
tree within the limits of a highway of a town, even if the tree endangers
persons lawfully travelling upon the highway, but, if such a tree
is a source of danger to travelers on the highway, it is the duty of the
town officials to order the tree warden to trim or to cut down the tree,
and it is the duty of the tree warden to carry out the order.
Valvoline Oil C'o. v Winthrop (1920) 235 Mass 515, 126 NE 895.
If a tree is within the limits of a highway. and is dangerous or an obstruction
to public-.travel, it is the duty, of the mayor, selectmen, road commissioner
or highway survivor to order the warden to trim, cut down or remove
that tree, and it is the duty of the warden to carry out the order.
The statute requires neither notice nor hearing to precede the action of
the named public officer in this respect. Jones v Great Barrington (1929)
269 Mass 202, 168 NE 779. Failure of the town officials named in
this section to cause the tree warden to remove a tree within the public
highway or the limbs of such a tree. which
tree or limbs obstruct. endanger, hinder or incommode travelers will render
the town liable in a tort action for damages which result from such
failure. Jones v Great Barrington (1929) 269 Mass 202, 168 NE 779.
§ 5. Cutting Down Bushes and Small Trees; Trimming Trees, etc., That Obstruct Travel.
Tree wardens and their deputies, but no other
person, may, without a hearing, trim, cut down or remove trees, less than
one and one half inches in diameter one foot from the ground, and bushes,
standing in public ways; and, if ordered by the mayor, selectmen, road
commissioners or highway surveyor, shall trim or cut down trees and bushes,
if the same shall be deemed to obstruct,
endanger, hinder or incommode persons traveling thereon or to obstruct
buildings being moved pursuant to the provisions of section eighteen of
chapter eighty-five. Nothing contained in this chapter shall prevent
the trimming, cutting or removal of any tree which endangers persons
traveling on a highway, or the removal of any tree, if so ordered by the
proper officers for the
purpose of widening the highway and nothing herein contained shall interfere
with the suppression of pests declared
to be public nuisances by section eleven of chapter one hundred and thirty-two,
including the Dutch elm disease.
(1915, 145, §5; 1941, 490, § 18; 1949,
761, § 12; 1961, 265.)
C. 87
ANNOTATED LAWS OF MASSACHUSETTS
§ 8
CASE NOTES
A boulevard, unlike a roadway in a reservation"
under c 92, 1 33, is a public way. It is not a state highway,
the removal of shade trees from which is entrusted to the department of
public works. Medford v Metropolitan Dist. Com. (I 939) 303 M ass 537,
22 N E2d 110.
§ 9. Signs and Marks on Shade Trees.
Whoever affixes to a tree in a public way or place a notice, sign, advertisement or other thing, whether in writing or otherwise, or cuts, paints or marks such tree, except for the purpose of protecting it or the public and under a written permit from the officer having the charge of such trees in a city or from the tree warden in a town, or from the department in the case of a state highway, shall be punished by a fine of not more than fifty dollars. Tree wardens shall enforce the provisions of this section; but if a tree warden fails to act in the case of a state highway within thirty days after the receipt by him of a complaint in writing from the department. the department may proceed to enforce this section. (1893. 403; 1899. 330, §§ 5, 8; RL 208, § 104; 1905, 279, § 2; 1915, 145, §§ 9, 13; 1931, 394, § 47.)
§ 10. Injury to Trees on State Highways.
Whoever without authority trims, cuts down or removes a tree, shrub or growth, within a state highway or maliciously injures, defaces or destroys any such tree, shrub or growth shall be punished by imprisonment for not more than six months, or by a fine of not more than five hundred dollars to the use of the commonwealth. (1905, 279, § 3; 1908, 297, § 2; 1915, 145. §§ 10, 13.)
ALR Annotations-
Liability of governmental unit or private owner
or occupant of land abutting highway for injuries or damage sustained when
motorist strikes tree or stomp on abutting land. 100 ALR3d 51O.
§ 11 Injury to Trees of Another Person.
Whoever wilfully, maliciously or wanton)v cuts,
destroys or injures a tree, shrub or growth which
is not his own, standing for anv useful purpose, shall be punished by imprisonment
for not more than six months or by a fine of not more than five hundred
dollars. (1698, 7)
§ 13 SHADE TREES C. 87
§ 1; 1785, 28, 1; 1829, 63; RS 126, § 42; GS 161, § 82; 1868, 321; PS 203, § 95; RL 208, § 100; 1902, 544, § 30; 1915, 145, § 11.)
ALR Annotation
Liability
of private owner or occupant of land abutting highway for injuries or damage
resulting from tree or limb falling onto highway. 94 ALR3d 1160.
Liability of governmental unit or private owner
or occupant of land abutting highway for injuries or damage sustained when
motorist strikes tree or stump on abutting land. 100 ALR3d 510.
§ 12. Injury to Shrubs, Trees and Fixtures.
Whoever wantonly injures, defaces or destroys a shrub, plant or tree, or fixture of ornament or utility, in a public way or place or in any public enclosure, or negligently or wilfully suffers an animal driven by or for him or belonging to him to injure, deface or destroy such shrub, plant, tree or fixture, shall be punished by a fine of not more than five hundred dollars, and shall in addition thereto be liable to the town or any person for all damages to its or his interest in said shrub, plant, tree or fixture caused by such act. Whoever by any other means negligently or wilfully injures, defaces or destroys such a shrub, plant, tree or fixture shall likewise be liable to the town or any person for all damages to its or his interest in said shrub, plant, tree or fixture caused by such act. (1856, 256, § 2; GS 46, § 7; PS 54, § 7; 1899, 330, §§ 6, 7; RL 208, §§ 101, 102; 1902, 544, §§ 31, 32; 191 5, 145, §§ 12, 13; 1926, 311)
ALR Annotation
Liability of governmental unit or private owner
or occupant of land abutting highway for injuries or damage sustained when
motorist strikes tree or stump on abutting land. 100 ALR3d 510.
§ 13. Duties of Tree Wardens in Cities.
The powers and duties conferred and imposed upon tree wardens in towns by this chapter shall be exercised and performed in cities by the officers charged with the care of shade trees 'within the limits of the highway. (1910, 363, § 1; 1915, §§ 1, 13.)
ALR Annotations-
Liability of governmental unit for injuries or
damage resulting from tree or limb
falling onto highway from abutting land. 95 ALR3d
778,