UMASS/AMHERST 
 
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LIBRARY 
 
 OF THE 
 
 MASSACHUSETTS 
 
 AGRICULTURAL 
 
 COLLEGE 
 
 sou RCEtlass.-SocL.^aT PmmiSlog-Agci: 
 
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PUBLICATIONS OF THE MASSACHUSETTS SOCIETY 
 FOR PROMOTING AGRICULTURE 
 
 I THE LAW 
 
 OF THE ROADSIDE 
 
 How to Protect our Landscape 
 
 Electric Lines in Public Ways. Shade Trees 
 
 in Public Ways. Insect Pests. 
 
 Trespass to Real Estate 
 
 SECOND EDITION, igu 
 
PRESS OF CEO. H. ELLIS CO., BOSTON 
 
CONTENTS. 
 
 PAGE 
 
 Explanatory Note to Second Edition 5 
 
 Introductory Note 7 
 
 Chapter I. 
 
 Electric Lines in Public Ways 9 
 
 Section 1. — Locations; How Obtained 9 
 
 " 2. — Regulation of Electric Lines in the Streets 
 
 and Highways 25 
 
 3. — Damages 34 
 
 Chapter II. 
 
 Shade Trees in Public Ways 41 
 
 Section 1. — Trees and Bushes in Public Ways 42 
 
 " 2. — Trees and Bushes in Parks 48 
 
 " 3. — Trees and Bushes in State Highways .... 48 
 
 " 4. — Rights of Owner of the Fee 50 
 
 " 5. — Criminal Offences and Penalties 52 
 
 Chapter III. 
 
 Laws Relative to Insect Pests 57 
 
 Chapter IV. 
 
 Trespass 64 
 
 Section 1 . — Criminal Trespass 64 
 
 " 2. — Civil Trespass 73 
 
 " 3. — The Boundaries of the Public Way .... 77 
 
EXPLANATORY NOTE TO SECOND EDITION. 
 
 The first edition of this pamphlet was compiled by 
 Augustus Hemenway and George W. Anderson, and was 
 published in 1893. For a statement of the aims and 
 purposes of the compilers the reader is referred to the 
 introductory note to that edition, which is here reprinted. 
 
 In the years that have since elapsed many changes 
 have been made in the statutes, and some important cases 
 have been decided by the Courts, bearing on the subjects 
 treated. The Legislature of 191 1 has enacted a general 
 revision of the laws relating to the rights of electric com- 
 panies in public ways, including an important departure 
 from the policy of the earlier laws in the matter of appeals 
 from local authorities to the State Commissions in certain 
 cases. It is to be hoped that the law on this subject 
 will now be permitted to remain for a time without serious 
 changes, for the continual alteration of laws of this char- 
 acter makes it well-nigh impossible for the ordinary 
 citizen to keep himself informed as to the rights of him- 
 self and his neighbors. The law concerning shade trees, 
 which has been for years in a state of almost hopeless 
 confusion, has also been somewhat simplified by recent 
 enactments, though it is not even yet as comprehensible 
 as we might wish. These important changes and many 
 lesser ones have been embodied in the present edition. A 
 number of matters closely related to the subjects treated 
 
6 THE LAW OF THE ROADSTDE 
 
 in the chapters on Electric Lines, Shade Trees, and 
 Trespass, but not touched upon in the first edition, have 
 been inserted in those chapters. A new chapter in regard 
 to Insect Pests has also been added, in recognition of the 
 great danger that has come to our roadsides and wood- 
 lands in recent years from the gypsy and brown tail 
 moths and other destructive insects with which they are 
 infested. It is hoped that a better knowledge of the laws 
 on this subject may tend in some degree to their more 
 effective enforcement. Finally, it has been necessary 
 to alter all citations of statutes as given in the first edi- 
 tion, owing to the fact that a new revision of the general 
 laws, known as the Revised Laws of Massachusetts, was 
 adopted in 1901, embodying the provisions of the Public 
 Statutes with all amendments and additions to that date. 
 The general plan of the earlier book and much of its 
 language are unchanged. The object of bringing it up 
 to date is the same which led to its original publication; 
 namely, the protection of the landscape, and especially 
 the roadside, from disfigurement. The need for a general 
 public knowledge of the laws which have been passed for 
 this purpose, and the need for extreme vigilance on the 
 part of local officials and public-spirited citizens to secure 
 the due enforcement of these laws, is no less than it was 
 eighteen years ago. The machinery of the law has been 
 improved in some respects, but the law is not of much 
 help to the land-owner unless he is willing to make some 
 effort to help himself. 
 
 RICHARD M. SALTONSTALL. 
 
 WARREN MOTLEY. 
 Boston, October, 191 1. 
 
INTRODUCTORY NOTE. 
 
 The extension of the uses of electricity has not been an 
 unmixed blessing. The annoyances and dangers caused 
 by the various electrical companies in running their lines 
 through the streets and highways, over the land of in- 
 dividual owners and over roofs, are well known and the 
 source of endless complaint. In many streets and highways 
 two, three, and even four, lines of poles are found, seriously 
 impairing the public use of the way, when one line, or at 
 the most two lines, would do as well. The beauty of the 
 landscape is injured, not only by the presence of these un- 
 sightly poles and wires, but still more by the hacking and 
 destruction of shade trees by the employees of these com- 
 panies. Private property is invaded, wires are attached 
 to trees and fences without asking permission of the 
 owners. In many cases, poles are set in land outside the 
 limit of the public way. 
 
 The laws regulating these companies and their rights in 
 the highways and over the property of individuals are not 
 perfectly clear, nor are they commonly known and under- 
 stood. Whether they are adequate or not cannot be 
 absolutely determined until people become more familiar 
 with them, and more attempts are made to enforce them. 
 
 City and town officials and residents of suburban towns 
 
8 THE LAW OF THE ROADSIDE 
 
 are especially interested in all statutes relating to the 
 rights of electrical companies in the highways. 
 
 Chapter I. of this pamphlet is an endeavor to present 
 these statutes in a convenient form, with such explana- 
 tory comment as shall make their meaning clear. 
 
 Chapter II. is an attempt to state the present law of 
 Massachusetts which has for its purpose the cultivation 
 and protection of roadside trees. The statutes on this 
 subject are many. New enactments have apparently 
 been passed with very little knowledge or regard for the 
 previously existing law. The result is an almost inextri- 
 cable maze. It is hoped that the statement herein is 
 correct, and that it covers all important points. 
 
 Chapter III. states the laws relative to insect pests. 
 
 Chapter IV. is a brief statement of the statute law 
 relating to trespass and the remedies therefor. 
 
 To protect the landscape, and especially the highways, 
 from any illegal and unnecessary disfigurement is the 
 object of compiling this little pamphlet. 
 
CHAPTER I. 
 ELECTRIC LINES IN PUBLIC WAYS. 
 
 Section I. LOCATIONS; HOW OBTAINED. 
 
 The first inquiry concerning electric companies that 
 interests us is how they obtain the right to run their 
 lines through the streets and highways and across private 
 property. 
 
 It should be here stated that, while the statutes were, Kinds of 
 when first passed, limited in their operation to telegraph com P aaies 
 
 , , . , ,. covered by this 
 
 companies, they have since been made applicable to chapter, 
 electric light companies and to telephone companies, so 
 that all companies using poles and wires for the trans- 
 mission of electricity are subject to practically the same 
 provisions, so far as rights in public ways and over private 
 property are concerned. The same is true of street rail- 
 way and electric railroad companies, so far as relates to 
 the transmission lines and telephone, signal, and feed 
 wires of such companies in public ways or parts of such 
 ways other than those in which their tracks are laid. 
 Revised Laws, Chap. 122, Sec. 1 (as amended by Acts of 
 1911, Chap. 509, Sec. 1). It is not intended to treat in 
 this pamphlet of the rights of street railway or electric 
 railroad companies in public ways in which their tracks 
 
IO THE LAW OF THE ROADSIDE 
 
 are laid, and the term "electric companies" as used 
 herein does not include such companies except in respect 
 to their rights in regard to poles and wires in streets 
 where they have no tracks. 
 
 The right of an electric company to run wires over or 
 under a public way is called a location. To obtain a 
 location, the company must petition in writing the mayor 
 and aldermen of the city, or the selectmen of the town, 
 in which is situated the public way over which the com- 
 pany desires to run its line. The officials who are thus 
 petitioned may grant or refuse such location in their 
 discretion. Suburban Light & Power Co. v. Boston, 
 153 Mass. 200; Revised Laws, Chap. 122, Sec. 2 (as 
 amended by Acts of 191 1, Chap. 509, Sec. 2). 
 
 A location may be granted only after a public hearing, 
 written notice of which has been given to all abutting 
 land owners. The order granting a location is recorded 
 with the records of the city or town, in books kept ex- 
 clusively for the purpose, where any citizen may examine 
 it and ascertain exactly what privileges the company has 
 obtained. The records should show, not only through 
 what streets the company may run its lines, but also 
 where poles may be placed, the kind of poles, the number 
 of wires or cables which may be attached thereto, and 
 the height at which and the places where the wires may 
 run (Revised Laws, Chap. 122, Sec. 2, as amended Acts 
 1 91 1, Chap. 509, Sec. 2), and, in certain cases of com- 
 panies distributing electricity exclusively for power, such 
 other restrictions as may be imposed by the mayor and 
 aldermen or selectmen (Acts of 1908, Chap. 617), such 
 
 
 
ELECTRIC LINES IN PUBLIC WAYS II 
 
 last named restrictions, however, being subject to re- 
 vision by the Board of Gas and Electric Light Commis- 
 'sioners upon appeal. 
 
 Where a lighting company desires for the first time New company. 
 
 jto lay or erect its wires over or under the public ways 
 
 of a city or town in which another company is doing 
 
 business, it must first apply to the local authorities as 
 
 above stated, and from their decision the petitioning 
 
 company or the existing company or any abutting land 
 
 owner may take an appeal to the Board of Gas and 
 
 Electric Light Commissioners. Revised Laws, Chap. 
 
 121, Sees. 26, 27. See also Acts of 1908, Chap. 617. 
 
 But if the Commissioners, on appeal, decide in favor of 
 
 j the petitioning company, it must still obtain a specific 
 
 j location from the local authorities in accordance with 
 
 I the procedure hereinafter outlined, before it has the 
 
 right to occupy the public streets. The Commissioners 
 
 have no power, under this statute, to grant a location 
 
 over the heads of the local authorities. 
 
 By the terms of a new law passed in 191 1, however, Right of appeal 
 that right is given in certain cases. Where a company t0 State boards - 
 has been granted and has accepted locations for its lines 
 in two cities or towns, but its petition for a location has 
 been refused or has not been granted within three months 
 of its riling, in a town adjoining the other two and through 
 which the line must pass to connect its proposed termini, 
 the company may apply, if it be an electric light, heat, 
 or power company, to the Board of Gas and Electric 
 Light Commissioners, or, if it be a street railway or electric 
 railroad company, to the Board of Railroad Commissioners, 
 
12 THE LAW OF THE ROADSIDE 
 
 for a location in such city or town, and the Board to which 
 such application is made may grant such a location after 
 notice to abutting land owners and a public hearing, if 
 it deems that it is necessary for the public convenience 
 and will be in the public interest. The Board is re- 
 quired to cause a copy of its order in such a case to be 
 forwarded to the clerk of the city or town, whose duty it 
 is to record the same. A citizen desiring information 
 with regard to a location granted in this manner should 
 therefore be able to obtain the same from the city or town 
 records, just as in the case of locations granted by the 
 local officials. This statute does not apply to telephone 
 or telegraph companies. Acts of 191 1, Chap. 509, Sec. 8. 
 
 This same statute (Acts 191 1, Chap. 509, Sec. 7) 
 provides that no ordinance or regulation of a city or 
 town, or regulation or restriction imposed in a grant of 
 location, affecting the erection, maintenance or operation 
 of transmission lines from a point in one city or town 
 through or to a point in another, shall take effect until 
 approved by the Board of Gas and Electric Light Com- 
 missioners in the case of electric light, heat, or power 
 companies, or the Board of Railroad Commissioners in 
 the case of street railway or electric railroad com- 
 panies. 
 
 Attention may here be called to another recent statute 
 (Acts 191 1, Chap. 481) confirming locations granted by 
 the selectmen or mayor and aldermen of any city or 
 town >and now in actual use, provided the company 
 claiming any such location shall file a map thereof to be 
 kept with the city or town records. This does not, how- 
 
landowner. 
 
 ELECTRIC LINES IN PUBLIC WAYS 13 
 
 ever, purport to legalize any poles, wires, or structures 
 unless an express grant of location therefor has been made 
 jby the selectmen or mayor and aldermen. 
 
 Locations upon State highways are subject to the state highways. 
 I approval of the Highway Commission, and to its regu- 
 lations. Revised Laws, Chap. 47, Sees, n, 21. See 
 Opinion Atty. Gen. July 18, 1906, An. Rep. p. 54. 
 
 Unless the company has obtained a duly recorded loca- Rights of 
 tion, it has no right whatever in the streets or highways, 
 and as the owner of the adjoining land ordinarily owns 
 ; the fee to the middle of the road, subject merely to the 
 i public easement for highway purposes, he may cut down 
 1 the poles and remove them. If you are disturbed or 
 injured by poles or wires already up or about being erected, 
 first ascertain from the town clerk whether these poles 
 and wires are rightfully there. Then, if they are not, 
 as a matter of courtesy, give the company notice to re- 
 move them. If the company fails to do so you may 
 dig them up or cut them down. This is a remedy, how- 
 ever, which should be exercised only where the company 
 is clearly at fault and with due regard to the rights of 
 the public to have the streets and highways maintained 
 in a safe condition for their use. Employees of com- 
 panies very frequently disregard the details of the loca- 
 tions granted, and place the poles and wires wherever 
 they find it most convenient. If a company has placed 
 a pole in a public way, the fee of which belongs to you, 
 not in accordance with a location granted in writing by 
 the mayor and aldermen or selectmen, it is a trespass, 
 and you are under no obligation to permit a continu- 
 
14 THE LAW OF THE ROADSIDE 
 
 ing trespass on your land. But do not convert the 
 poles, that you dig up or cut down, to your own use. 
 Because they are wrongfully placed on your land, you 
 are not justified in using them as your own. You may 
 remove them, placing them where the company can 
 get them, and as much out of your own way as possible. 
 If the company owns land in the vicinity, you should 
 remove them from your property to their own land. If 
 you should use the poles as your own, you might have to 
 pay a large price for them. 
 
 In case you find that a location has been granted, but 
 the line appears to have been constructed contrary to 
 its terms, be careful to ascertain whether there was an 
 appeal to the Board of Gas and Electric Light Commis- 
 sioners, and, if so, what order was made by them, or, in 
 the case of a line running from one city or town into 
 another, the location for which was granted since the 
 passage of the Act of 191 1, that the conditions imposed 
 were duly approved by the said Board or the Board of 
 Railroad Commissioners. Also, if a State highway is 
 in question, ascertain whether a permit has been obtained 
 from the Highway Commission, and whether its regula- 
 tions have been observed. 
 
 The law requires that a public hearing shall be held on 
 every petition for a location, and that written notices of 
 the time and place thereof shall be mailed to all abutting 
 land owners. This affords the land owners an oppor- 
 tunity to object that the location applied for is unneces- 
 sary or inadvisable. It is of the greatest importance, in 
 cities and suburban towns through which great numbers 
 
ELECTRIC LINES IN PUBLIC WAYS 15 
 
 of lines run, that the streets should not be unnecessarily 
 cumbered by unsightly poles, which not only interfere 
 with the passage of people and teams, but cause great 
 destruction of shade trees. New locations should not be 
 granted through streets which are, or are likely to be, 
 fully occupied for residences, unless it is impracticable 
 to run the lines through some less objectionable locality, 
 or to run the new wires on a line of poles already stand- 
 ing. 
 
 The Legislature has wisely provided that no locations No rights by 
 shall be obtained by prescription. If your neighbor P rescr, P tlon - 
 passes over your land peaceably, openly, and under a 
 claim of right, for twenty years or more, he is then said 
 to have a "right of way by prescription," and you cannot 
 afterwards prevent him from so using your land. But 
 not so with reference to electric companies in the high- 
 way. No matter how long the company has maintained 
 its lines, unless it can show a proper permit from the 
 mayor and aldermen or from the selectmen, it has no 
 right in the highway. From this it follows, of course, 
 that you may have a right to remove, as constituting a 
 trespass, poles which may have stood on your land for 
 twenty-five years or more. See Revised Laws, Chapter 
 122, Section 26, which is as follows: — 
 
 "No enjoyment for the purposes specified in section one of this 
 chapter by a person or corporation for any length of time of the 
 privilege of having or maintaining poles, wires, or apparatus in, 
 upon, over, or attached to any building or land of other persons 
 shall give a legal right to the continued enjoyment of such easement, 
 or raise any presumption of a grant thereof." 
 
1 6 THE LAW OF THE ROADSIDE 
 
 Consolidation The question of requiring two or more companies tc 
 of wires. consolidate their wires on a single line of poles is further 
 
 discussed in Section 2 on "Regulations." But, as re- 
 gards the granting of new locations, it may be here 
 stated that, when application is made for a permit to run 
 a line of wires through streets and highways already 
 having one or more such lines, the officials may well 
 refuse to grant the new line the right, unless it will run 
 on an existing line of poles. Generally, this can be ar- 
 ranged between the old and the new companies without 
 interference on the part of the officials, further than tc 
 refuse permission to erect an additional line of poles 
 The statutes confer upon the mayor and aldermen 01 
 selectmen ample authority, upon petition of two or mort 
 companies, to permit one of them to affix its wires to the 
 poles of another, or to grant to such companies joint 01 
 identical locations for poles to be used in common b> 
 them; but whether the officials can lawfully compel an 
 electric company having an existing line of poles on a 
 public way to permit a new company to string its wires 
 on those poles is open to some doubt. Probably the 
 officials have such power, provided it appear that sucr 
 action will not unreasonably interfere with the business 
 of the old company. This does not mean that the mayoi 
 and aldermen or selectmen may require a telegraph oi 
 telephone company that uses a "low tension" wire tc 
 permit an electric light company that uses a "high ten 
 sion" wire to place its wires on the poles of the former 
 The induction would probably in such case render th< 
 "low tension" wire useless. But the above namec 
 
ELECTRIC LINES IN PUBLIC WAYS 17 
 
 officials may make, either for the erection or the main- 
 tenance of electric lines, any regulation that is reason- 
 able. Revised Laws, Chap. 25, Sec. 54. What is "reason- 
 able" is a question of fact for a jury under proper 
 instructions from the Court. It certainly is unreason- 
 able, so far as the rights of the public and of land owners 
 are concerned, that highways should contain two or 
 three lines of unsightly poles when one line would do 
 as well. This Commonwealth has passed many statutes 
 for the purpose of fostering and protecting shade trees. 
 Nothing is more destructive of shade trees than the lines 
 of these numerous electric companies in our highways. 
 This is an additional reason, if any were needed, for 
 holding a regulation to be reasonable which requires 
 all wires to be consolidated on a single line of poles when- 
 ever such consolidation can be effected without impair- 
 ing their usefulness. 
 
 At hearings before a committee of the Legislature in 
 1 89 1 it was proposed to amend the law so as to give, in 
 express terms, to city and town authorities, power to 
 require one electric company to permit another to string 
 its wires on poles already erected. The attorneys for the 
 various electric companies, in opposing such amend- 
 ment, claimed that the mayor and aldermen and the 
 selectmen already had such power, provided that in any 
 *iven case said combination of wires was "reasonable." 
 These attorneys of the companies contended that the 
 existing statutes gave to the above named authorities 
 Dower to make any and all regulations that are reasonable, 
 md apparently their construction of the law is correct. 
 
1 8 THE LAW OF THE ROADSIDE 
 
 Whether locations once granted may be entirely re- 
 voked by the mayor and aldermen or selectmen is a 
 question which has never been tested before our Court. 
 It has, however, been decided that the Legislature has 
 the absolute power to revoke such locations. N. E. Tel. 
 & Tel. Co. v. Boston Terminal Co., 182 Mass. 397; Boston 
 El. Light Co. v. Same, 184 Mass. 566. The city and 
 town officials are expressly given authority to direct any 
 alteration in the location of the poles or in the height of 
 the wires (Revised Laws, Chap. 122, Sec. 2, as amended 
 Acts 191 1, Chap. 509) and to establish "reasonable regu- 
 lations." There can be no doubt that "reasonable regu- 
 lation" includes the revocation of a location through a 
 particular street, provided that some other reasonable 
 location is granted; but it is probable that city and 
 town authorities cannot legally revoke a location with- 
 out granting another which shall be reasonably suffi- 
 cient for the business of the company. A special stat- 
 utory provision closely limits the authority of such 
 officials to revoke locations of a lighting company where 
 a municipal lighting plant has been established or is 
 in contemplation. Revised Laws, Chap. 34, Sec. 31. 
 There is also a special provision with regard to locations 
 for wires of street railway companies in public ways other 
 than those wherein their tracks are laid, whereby such 
 locations, like other street railway locations, can only be 
 revoked with the approval of the Board of Railroad Com- 
 missioners after public notice and a hearing. Revised 
 Laws, Chap. 122, Sec. 2 (as amended Acts 191 1, Chap, 
 509)- 
 
ELECTRIC LINES IN PUBLIC WAYS 19 
 
 Revised Laws, Chapter 48, Section 85, provides that, Reserved spaces 
 if the city council of a city or a town has accepted the 1D ways ' 
 provisions thereof, the board or officers authorized to 
 lay out highways may reserve spaces therein for electric 
 wires and other specified purposes. Where such a space 
 has been reserved, the mayor and aldermen or selectmen 
 may unquestionably refuse to grant a location in any 
 other part of the highway, and may require the removal of 
 poles and wires into such reserved space. See Eustis v. 
 Milton St. Ry. Co., 183 Mass. 586. 
 
 Some question has been made whether telegraph com- Federal laws. 
 panies, which are subject to the control of Congress as 
 being means of interstate commerce, may not be entitled 
 to locations through all streets and highways without 
 regard to State laws. The Revised Statutes of the United 
 States, Section 5263, provides that any telegraph com- 
 pany shall have the right to construct, maintain, and 
 operate lines over and along any of the post roads of the 
 United States, but that such lines shall not interfere with 
 the ordinary travel on such post roads. 23 United States 
 Statutes at Large, 3 (1884), provides that "All public 
 roads and highways while kept up and maintained as 
 such are hereby declared to be post routes." The Supreme 
 Court of the United States has held that no State can 
 prevent a telegraph company from running its lines 
 for interstate business along the highways. Pensacola 
 Tel. Co. v. Western Union Tel. Co., 96 U. S. 1. But 
 such companies must submit to reasonable State regula- 
 tions. Richmond v. So. Bell. Tel. Co., 174 U. S. 761. 
 
 Our Massachusetts Supreme Court has held that loca- 
 
20 THE LAW OF THE ROADSIDE 
 
 tions may be refused (Suburban Light & Power Co. v. 
 Boston, 153 Mass. 200; Pierce v. Drew, 136 Mass. 75; 
 Young v. Yarmouth, 9 Gray, 386; Comm. v. Boston, 97 
 Mass. 555), and ordinarily the companies make no at- 
 tempt to obtain rights under the laws made by Congress. 
 
 On private land. Over private territory electric companies have, of course, 
 no rights whatever, except as they purchase them. 
 
 If a land owner gives a company permission to place 
 poles in, or to run wires over, his land, this permission 
 amounts merely to a license preventing the occupation 
 from being a trespass so long as the permission is unre- 
 voked. But the land owner may recall his permission 
 at any time, and, after notice to the company, he may 
 remove the poles and wires. 
 
 The land owner owns not only the land, but the air 
 over it; and it is a trespass to string wires through the 
 air over your land without your permission. Electric 
 companies very often commit trespasses by cutting cor- 
 ners. The land owner may remove the wires in such a 
 case. Of course, the companies have no right whatever 
 to attach guy wires to your trees or fences, and if they 
 fail to remove them after notice you have a right to 
 cut them. 
 
 Electric lines for Section 52 of Chapter 25 of Revised Laws contains a 
 provision by which private parties may obtain a loca- 
 tion for an electric line for private use, as follows: — 
 
 "The Selectmen may, upon terms and conditions prescribed by 
 them, and subject to the provisions of chapter one hundred and 
 twenty-two, so far as applicable, authorize a person to construct 
 lines for private use upon, along and under the public ways of the 
 
 private use. 
 
ELECTRIC LINES IN PUBLIC WAYS 21 
 
 town for the transmission by electricity, of light, or of heat or power, 
 except such as is used by street railway companies or for the trans- 
 mission, by electricity or otherwise, of intelligence by telegraph or 
 telephone. Upon the construction of such line, the poles and struct- 
 ures thereof within the location of such ways shall become the prop- 
 erty of the town, and the selectmen may regulate and control the 
 same, may at any time require the persons using the same to make 
 alterations in the location or construction thereof and may, after 
 notice and a hearing, order the removal thereof. The town may at 
 any time attach wires for its own use to such poles and structures, 
 and the selectmen may permit other persons to attach wires for 
 their private use thereto or to poles and structures constructed by 
 the town, and may prescribe reasonable terms and conditions there- 
 for." 
 
 Note particularly that the poles and structures become 
 the property of the town, so that the party erecting them 
 has not the right to remove them. Note also that the 
 selectmen may permit other persons to attach to these 
 poles wires for private use. 
 
 Cities and towns may, subject to the limitations con- Municipal 
 tained in Chapter 34 of the Revised Laws, engage in the lg ting p ants ' 
 manufacture or distribution of electricity for municipal 
 use or for the use of their inhabitants (Section 1). Such 
 municipal lighting plant and business shall be under the 
 management of a manager of municipal lighting, subject 
 to the direction of the mayor of the city or the selectmen 
 or municipal light board, if any (see Sec. 19), of the town. 
 Revised Laws, Chap. 34, Sec. 20. 
 
 With regard to a city or town which is lawfully en- 
 gaged in such business, Revised Laws, Chapter 34, 
 Section 30, provides as follows: — 
 
2 2 THE LAW OF THE ROADSIDE 
 
 "All general laws, and all ordinances or by-laws of any city or 
 town acting under the provisions of this chapter, relative to the 
 manufacture, use or distribution of gas or electricity, or to the 
 quality thereof, or to the plant or the appliances therefor, shall 
 apply to such city or town, in the same manner as to persons, so 
 far as applicable and consistent with the provisions of this chapter." 
 
 It seems clear from this section that, in the matter of 
 obtaining locations for its poles and wires, a city or town 
 must proceed by its manager of municipal lighting or by 
 its mayor or selectmen or municipal light board, if any, 
 in the same way as an electric company, namely, it must 
 petition the mayor and aldermen or selectmen, who, in 
 the granting of locations, act as agents of the State and 
 not of the municipality, and who may act only after due 
 notice to abutting land owners and a public hearing, 
 as in other cases. 
 
 In certain cases a city or town may acquire from a 
 company, and may maintain, poles and wires for the dis- 
 tribution of electricity in an adjoining city or town. 
 In such case it is provided that it 
 
 "shall thereafter have therein the same rights and franchises and 
 be subject to the same limitations and obligations as the person 
 or corporation from whom such outlying plant was purchased would 
 have had or to which he or it would have been subject had such 
 purchase not been made." Revised Laws, Chap. 34, Sec. 14. 
 
 Of course, the rights of a city or town to erect or main- 
 tain poles, wires, or other fixtures either on the private 
 property of others or on highways, if proper locations have 
 not been granted them, whether within their own boun- 
 
ELECTRIC LINES IN PUBLIC WAYS 23 
 
 daries or in adjoining cities or towns, are no greater than 
 would be the case with any individual or company. 
 
 In regard to the liability of such city or town, Revised 
 Laws, Chapter 34, Section 28, provides: — 
 
 "A city or town which owns or operates a gas or electric lighting 
 plant shall be liable for any injury or damage to persons or property 
 caused by its maintenance or operation, in the same manner and to 
 the same extent as a private corporation." 
 
 The Legislature has provided a remedy in the crimi- Criminal law. 
 nal courts against companies not conforming to the law. 
 This provision (Revised Laws, Chap. 122, Sees. 22, 23) 
 is as follows: — 
 
 "Section 22. A corporation or person maintaining or operating 
 telephone, telegraph or other electric wires or any other person who 
 in any manner affixes or causes to be affixed to the property of an- 
 other any pole, structure, fixture, wire or other apparatus for tele- 
 phonic, telegraphic or other electrical communication, or who 
 enters upon the property of another for the purpose of affixing the 
 same, without first obtaining the consent of the owner or lawful 
 agent of the owner of such property, shall, on complaint of such 
 owner or his tenant, be punished by a fine of not more than one 
 hundred dollars. 
 
 "Section 23 (as amended Acts 191 1, Chap. 509, Sec. 5). A 
 corporation or person maintaining or operating telephone, tele- 
 graph or other electric wires shall, at all places where such wires 
 are affixed by any pole, structure or fixture to the property of an- 
 other, mark such pole, structure or fixture in a clear, durable and 
 legible manner with the name or initials of the corporation or person 
 maintaining or operating such wires, and any corporation or person 
 who fails to comply with the provisions of this section shall be pun- 
 ished by a fine of not more than one hundred dollars." 
 
24 THE LAW OF THE ROADSIDE 
 
 If an electric company fastens its wires to your trees 
 or fences, or enters on your land for the purpose of doing 
 so, without your prior consent, you can make complaint 
 to a Trial Justice or Justice of a Police, District, or Muni- 
 cipal Court, whose duty it then is to cause the case to 
 be carried forward according to the usual method of 
 criminal procedure. If the Justice should fail to enforce 
 the law and the company persists, you should complain to 
 the District Attorney, who may take steps to cause the 
 corporation to be indicted. As it is a criminal proceeding, 
 on complaint it is the duty of the government officers to 
 carry on the prosecution, and the costs are, of course, paid 
 by the government. 
 
 Section 23 of this act is of great value in compelling the 
 companies so to mark their property that every land 
 owner may know who is responsible for particular lines, 
 and whose agents are at work altering or repairing those 
 lines. It is of great importance that the companies be 
 compelled to comply with this section, and, if any of them 
 have failed so to do in any town or city, some public- 
 spirited citizen should make complaint. 
 
ELECTRIC LINES IN PUBLIC WAYS 25 
 
 Section 2. REGULATION OF ELECTRIC LINES IN THE 
 STREETS AND HIGHWAYS. 
 
 "Regulation" is a comprehensive term. It may in- "Regulation, 
 elude even the revocation of a location, provided another 
 reasonable location is granted. A change of the posi- 
 tion of the poles within the street, a substitution of one 
 kind or size of poles for another, a rearrangement of 
 wires on the poles, — all these certainly fall within the 
 scope of the term " regulation." 
 
 The same power that may grant locations may regu- 
 late after granting, so as to adapt the condition of the 
 highways to the changing needs of the public. In cities 
 the regulations made by the mayor and aldermen must 
 be by ordinance: the selectmen of towns may regulate 
 by simple orders of the board, duly recorded. Revised 
 Laws, Chap. 25, Sec. 54; Revised Laws, Chap. 26, Sees. 
 2, 6; Revised Laws, Chap. 122, Sec. 2; Acts 1906, Chap. 
 117, Sec. 1. 
 
 Section 54 of Chapter 25 of the Revised Laws may be 
 quoted in full: — 
 
 "Section 54. The selectmen may, within their respective towns, 
 permit telegraph and telephone lines to be laid under any way or 
 square, and may establish reasonable regulations for the erection 
 and maintenance of all lines for the transmission of intelligence by 
 telegraph or telephone, by electricity or otherwise, or for the trans- 
 mission by electricity of light, or of heat or power except such as is 
 used by street railway companies, by every person having authority 
 to place poles, wires; structures and other appliances for any purpose 
 in or under public ways or places, including all lines owned or used 
 by said towns." 
 
26 THE LAW OF THE ROADSIDE 
 
 Section 2 of Chapter 122 of the Revised Laws (as 
 amended Acts 1911, Chap. 509, Sec. 2) further provides: — 
 
 "After the erection or construction of such line the mayor and 
 aldermen or selectmen may, after giving the company or its agents 
 an opportunity to be heard, or upon petition of the company with- 
 out notice or hearing, by order permit an increase in the number of 
 wires or cables and direct an alteration in the location of the poles, 
 piers, abutments, or conduits or in the height of the wires or cables. 
 . . . No order of the mayor and aldermen or selectmen shall be 
 required for renewing, repairing or replacing wires, cables, poles, 
 piers, abutments, conduits or fixtures once erected or constructed 
 under the provisions of law, or for making house connections or 
 connections between duly located conduits and distributing poles." 
 
 See, however, Acts of 191 1, Chapter 509, Section 7, 
 hereinbefore referred to, whereby regulation of trans- 
 mission lines running from one city or town into another 
 is made subject to the Board of Gas and Electric Light 
 Commissioners, or, in case of railway companies, the 
 Railroad Commissioners. 
 Regulations The only limit placed on the power of the proper au- 
 must be thorities to regulate is that such regulation shall be 
 
 reasonable. , m 
 
 reasonable; and what is reasonable is, as already 
 stated, a question for a jury under instructions from the 
 Court. Such was the construction of our Supreme Court 
 in the cases of Young v. Yarmouth, 9 Gray, 386, and 
 Pierce v. Drew, 136 Mass. 75; and such was the con- 
 struction of the attorneys of the various electric companies 
 at the hearings before a committee of the Legislature 0. 
 1 89 1, when it was proposed to pass laws by which fullei 
 power of regulation might be exercised. It was then 
 
ELECTRIC LINES IN PUBLIC WAYS 27 
 
 argued by the representatives of the companies that 
 the mayor and aldermen and the selectmen already had 
 full power for all reasonable regulation, and that further 
 legislation would either have no effect or would give power 
 for unreasonable regulation. 
 
 Accordingly, if there are two or three lines of telegraph Consolidation 
 and telephone poles in streets in which you are interested, of wres ' 
 when one or two would do as well, petition the mayor 
 and aldermen or the selectmen to order them to be con- 
 solidated. If the poles of a single line are too numerous 
 or in inconvenient places, or are crooked and unsightly, 
 or if the poles unnecessarily interfere with growing trees, 
 whether shade trees or fruit trees, petition for such change 
 as you deem reasonable. You may want to build a house 
 on a vacant lot in front of which are poles and wires in 
 such position as to be very unsightly and inconvenient. 
 It is not "reasonable" that they be allowed to remain 
 there unless it is impracticable to change their position. 
 
 In view of these facts it is apparent that the use of the 
 highways by these companies should be allowed to en- 
 croach as little as possible upon the ordinary and natural 
 uses of highways and of the adjoining land, and that 
 regulation seeking so to limit them is entirely reasonable. 
 
 The question of burying wires is a very serious and Placing wires 
 important one, not only in all our cities, but in many uader g round - 
 of our suburban towns. In many streets the lines cannot 
 exist above-ground except as a practical nuisance. In 
 many cities and towns, and in parts of Europe, most of 
 the wires are now underground. 
 
 Apparently, the question of compelling the companies 
 
28 THE LAW OF THE ROADSIDE 
 
 to bury their wires in any specified streets is the same 
 question heretofore discussed; viz., Is this reasonable 
 regulation under the circumstances of this particular 
 case? The companies object that the process of bury- 
 ing is very expensive. To this may be answered that, 
 though the primary expense is larger, the secondary 
 expenses of maintenance and repairs are much less. 
 Storms are continually breaking down poles and wires, 
 to the great danger of the public, to the injury of the 
 service, and to the enormous expense of the companies. 
 
 Doubtless the burying of the lines in all the more 
 populous sections will soon be regarded as not only 
 reasonable but necessary regulation. The question of 
 the authority of the mayor and aldermen and of the 
 selectmen, under the existing statutes, to compel the bury- 
 ing of wires, has never been tested before our Supreme 
 Court; but it is not believed that the companies would 
 contest the power on any ground other than that, in the 
 specific case, such requirement would be unreasonable. 
 Special statutes have been passed by the Legislature 
 from time to time relating to particular cities, requiring 
 all wires in certain streets specified in the statute, or to 
 be designated by certain city officials, to be placed under- 
 ground. No attempt is made to treat these statutes in 
 this pamphlet. 
 
 After the Bedford Street fire in Boston on Thanks- 
 giving Day, 1890, the Legislature passed an act for the 
 better regulation of wires in cities, which, as subsequently 
 revised, may be quoted in full (Revised Laws, Chap. 
 122, Sees. 16-19): — 
 
ELECTRIC LINES IN PUBLIC WAYS 29 
 
 "Protection and Marking or Wires. 
 
 "Section 16. A person or a corporation, private or municipal, 
 owning or operating a line of wires over or under streets or huildings 
 in a city or town shall use only strong and proper wires safely at- 
 tached to strong and sufficient supports and insulated at all points 
 of attachment; shall remove all wires the use of which is abandoned; 
 shall properly insulate every wire where it enters a building, and, if 
 such wire is other than a wire designed to carry an electric light, 
 heat or power current, shall attach to it at a proper point in the cir- 
 cuit, near the place of entering the building, and so situated as to 
 avoid danger from fire, an appliance adapted at all times to prevent 
 a current of electricity of such intensity or volume as to be capable 
 of injuring electrical instruments or of causing fire from entering the 
 building by means of such wire beyond the point at which such 
 appliance is attached; and shall properly insulate every wire within 
 a building which is designed to carry an electric light, heat or power 
 current. 
 
 "Section 17 (as amended Acts 1911, Chap. 509, Sec. 3). Such 
 person or corporation shall plainly mark each pole, pier, abut- 
 ment, or other fixture supporting wires' or cables containing wires 
 over streets or buildings with the name or initials of the owner of 
 such pole, pier, abutment, or other fixture. Wherever cross arms or 
 other appliances for the support of wires or cables belonging to 
 different owners are attached to the same pole, pier, abutment or 
 other fixture, every such cross arm or other appliance shall be 
 plainly tagged or marked with the name or initials of the owner 
 thereof. Wherever wires or cables belonging to different owners 
 are attached to the same cross arm or other appliances for the sup- 
 port of wires or cables, every wire or cable shall be tagged or marked 
 with the name or initials of the owner at or near its point of attach- 
 ment to such cross arm or other appliance. No such tag or mark 
 shall be required for the wires, poles, piers, abutments and other 
 fixtures of a street railway or electric railroad company, except for 
 its feed wires supported by poles carrying wires or cables belonging 
 to another owner and for its poles supporting wires or cables belong- 
 
30 THE LAW OF THE ROADSIDE 
 
 ing to another owner and for poles belonging jointly to the street 
 railway company and another owner. 
 
 "Officers to Supervise Wires. 
 
 "Section 18. A city shall, by ordinance, designate or provide for 
 the appointment of an inspector of wires, and any town may, at an 
 annual town meeting, instruct its selectmen to appoint such an 
 inspector. Such inspector shall supervise every wire over or under 
 streets or buildings in such city or town and every wire within a 
 building which is designed to carry an electric light, heat or power 
 current, shall notify the person or corporation owning or operating 
 any such wire whenever its attachments, insulation, supports or 
 appliances are improper or unsafe, or whenever the tags or marks 
 thereof are insufficient or illegible, shall, at the expense of the city 
 or town, remove every wire the use of which has been abandoned 
 and every wire which is not tagged or marked as hereinbefore re- 
 quired, and shall see that all laws and regulations relative to wires 
 are strictly enforced. A city or town may recover in an action of 
 contract of the person or corporation owning any wire so removed 
 the expense which it has incurred for the removal thereof. 
 
 "Section 19. The supreme judicial court or the superior court 
 shall have jurisdiction in equity upon petition of the officer or in- 
 spector designated or appointed as aforesaid, to enforce the provi- 
 sions of the three preceding sections and to restrain the use or main- 
 tenance, or to cause the removal, of any wire, pole or other support 
 which is erected, maintained or used in violation of the provisions 
 of said sections." 
 
 This act is aimed especially at the improper insulation 
 of wires, causing danger of fires; and at the removal of 
 untagged and abandoned wires. Private parties fre- 
 quently fail to remove the wires of an abandoned tele- 
 phone line; these become partially detached, fall across 
 
ELECTRIC LINES IN PUBLIC WAYS 31 
 
 a "high tension" wire, and thus communicate fire to 
 some building. Unless a wire is tagged so as to show 
 who is responsible for it, it should be removed by the 
 inspector mentioned in the above statute. The original 
 act applied only to cities; but as it now stands any town 
 may provide for the appointment of an inspector. 
 
 A further act passed in 1895 (Revised Laws, Chap, insulation of 
 122, Sees. 20, 21) requires insulation of poles, viz.: — p 01 **" 
 
 "Section 20 (as amended Acts of 1911, Chap. 509, Sec. 4). 
 Poles and other structures which are used to support lines for the 
 transmission of electricity shall be insulated in such manner as to 
 protect employees and other persons from accidents. If such poles 
 and other structures are of any materials except wood, and support 
 lines which are operated at a voltage in excess of two thousand 
 volts, they shall be plainly and conspicuously marked, 'Dangerous. 
 Keep Away.' The officer and inspector of wires appointed under 
 the authority of section eighteen of said Chap. 122 or the com- 
 missioner of wires of the city of Boston shall enforce the provisions 
 of this section, and he shall be the sole judge of what constitutes a 
 proper insulation and marking. 
 
 "Section 21. A person or corporation owning poles which are 
 used for the transmission of electricity who fails to comply with 
 the provisions of the preceding section shall be punished by a fine 
 of not less than ten nor more than one hundred dollars for every 
 pole left uninsulated for an unreasonable time after a request for a 
 proper insulation by the officer, inspector or commissioner acting 
 under the provisions of the preceding section." 
 
 Sections 28, 29, and 30 of Chapter 122 of the Revised 
 Laws contain some further regulations made by the Leg- 
 islature;-— 
 
32 
 
 THE LAW OF THE ROADSIDE 
 
 
 Wires not to 
 interfere with 
 moving of 
 buildings. 
 
 "Section 28 (as amended Acts of 191 1, Chap. 509, Sec. 6). 
 Whenever, in order to move a building or for any other necessary 
 purpose, a person desires that the wires of any such company be 
 cut, disconnected or removed, the company shall forthwith cut, dis- 
 connect or remove the same, if the person desiring this to be done 
 has first left a written statement, signed by him, of the time when, 
 and the place, described by reference to the crossings of streets or 
 highways, where he wishes to remove said wires, at the office of the 
 company in the town in which such place is situated, twenty-four 
 hours before the time so stated, or, if there is no such office, if he has 
 deposited such statement in the post office, properly prepaid, and 
 directed to the company at its office nearest to said place, three 
 days before the time mentioned in said statement. If the company 
 neglects or refuses to cut, disconnect or remove wires as hereinbefore 
 provided, the inspector of wires, or the selectmen of a town where 
 there is no inspector of wires, may cause the same to be cut, discon- 
 nected or removed, and the city or town may recover of the company 
 in an action of contract the expense of so doing. 
 
 "Section 29. Whoever wilfully cuts, disconnects, removes, or 
 otherwise interrupts the use of the wires of any such company, 
 without first giving notice as provided in the preceding section, shall 
 be punished as provided in section twenty-seven.* 
 
 "Section 30. The provisions of the two preceding sections shall 
 not apply to any wires attached to poles which have not been erected 
 in compliance with the provisions of law." 
 
 * Section 27. Whoever unlawfully, and intentionally injures, molests or de- 
 stroys any line, wire, pole, pier or abutment, or any of the materials or property of 
 any street railway company, of any electric railroad company, or of any city or town 
 engaged in the manufacture and sale of electricity for light, heat or power or of any 
 company, owner or association described in sections one and twenty-five shall be 
 punished by a fine of not more than five hundred dollars or by imprisonment for not 
 more than two years, or by both such fine and imprisonment; and whoever shall do 
 any of the acts prohibited by this section between the hours of four o'clock in the 
 afternoon and seven o'clock in the morning shall be punished by a fine of not more 
 than one thousand dollars or by imprisonment for not more than four years, or 
 by both such fine and imprisonment. (As amended Acts 1908, Chap. 233.) 
 
ELECTRIC LINES IN PUBLIC WAYS S3 
 
 Revised Laws, Chapter 53, Section 5, provides as Removal of 
 
 follows:- unused poles. 
 
 "The aldermen in cities or the selectmen in towns may cause the 
 removal from public ways and places of unused poles, wires, struct- 
 ures or other appliances, at the expense of the owners thereof." 
 
 These sections indicate that the purpose of the Legis- 
 lature is to keep the use of the highways by the electric 
 companies subordinate to their other more usual and 
 natural uses. Companies must run the risk of being 
 obliged to cut their wires, so that buildings may be moved 
 through the highways, and the statute merely provides 
 that they shall have twenty-four hours' notice, so that 
 they may provide means to prevent the interruption of 
 their business. Section 30 is probably merely declaratory 
 of what would be the law anyway; i.e., unless the lines 
 are legally within the highway, any one may remove 
 them, without notice to the company, if such lines inter- 
 fere with any proper use which he desires to make of the 
 highway. Practically, however, it is better to give the 
 company notice. We should recognize that, while these 
 companies are an injury to our streets, yet they are on 
 the whole beneficial to the public, and that we are all 
 more or less dependent upon the services they render. 
 
34 THE LAW OF THE ROADSIDE 
 
 Section 3. DAMAGES. 
 
 Damages to If we must have poles and electric wires in our public 
 abutters. wavS) it is of great interest and importance to determine 
 whether we may recover in damages for the injury done 
 us. For this the law, since 1884, seems to be fairly 
 adequate. Section 3 of Chapter 122 of the Revised Laws 
 is as follows: — 
 
 "Section 3. An owner of land which abuts upon a public way 
 along which telegraph or telephone, electric light, heating or power 
 lines are constructed, erected or altered in location or construction 
 by any telegraph or telephone, electric light, heating or power 
 company, whose property is injuriously affected or diminished 
 in value by occupation of the ground or of the air, or otherwise 
 by such construction, erection or alteration, whether such owner is 
 also the owner of the fee in such way or not, may, within three 
 months after such construction, erection or alteration, apply to the 
 mayor and aldermen of the city or selectmen of the town in which 
 such land is situated to assess and appraise his damages. Before 
 entering upon the service, the mayor and aldermen or selectmen shall 
 severally be sworn faithfully and impartially to perform the duties 
 herein required. They shall, upon view, make a just appraisal in 
 writing of the loss or damage, if any, to the applicant, sign dupli- 
 cates thereof, and on demand deliver one copy to the applicant and 
 the other to the company or its agent. If damages are assessed, 
 the company shall pay them and the costs of the appraisers. If the 
 appraisers find that the applicant has suffered no damage he shall 
 pay said costs. The mayor and aldermen and selectmen shall each 
 receive two dollars a day for services performed as appraisers." 
 
 This statute was passed in consequence of the decision 
 of the Supreme Court in 1883 in Pierce v. Drew, 136 
 Mass. 75, that under existing laws an additional servi- 
 
ELECTRIC LINES IN PUBLIC WAYS 35 
 
 tude was not imposed by the appropriation of a public 
 highway for the use of a telegraph line; and that conse- 
 quently the owner of the fee of the street was not en- 
 titled to any additional compensation, when his land, 
 previously in use by the public for street purposes, was 
 also used as a location for an electric company. Two of 
 the judges of the Supreme Court dissented from this 
 decision, and the Legislature was evidently of the opinion 
 that, if the law did not give a land owner damages when 
 a quiet country road in which he owned the fee was 
 subsequently filled with unsightly poles heavily loaded 
 with wires, the law was wrong, and accordingly passed 
 the above statute. The change made in such highways 
 by these companies is well expressed by the following 
 quotation from the dissenting opinion in the case of 
 Pierce v. Drew above referred to: — 
 
 "When a telegraph line consisted of only a single row of small 
 posts, with a few wires, the matter was of less importance. But 
 common observation shows that now the posts are large and numer- 
 ous, fitted with cross-beams adapted for layer after layer of almost 
 countless wires; and the establishment of the different kinds of 
 electrical lines involves to some extent a destruction of trees along 
 the highways or streets, an occupation of the ground, a filling of 
 the air, an interference with access to or escape from buildings, an 
 increased difficulty in putting out fires, an obstruction of the view, 
 a presentation of unsightly objects to the eye, and a creation of 
 unpleasant noises in the wind. The actual injury thus done to 
 adjoining property may certainly be quite serious." 
 
 Note that this statute gives a remedy in damages, not 
 only when a line is constructed, but when any alteration 
 
36 THE LAW OF THE ROADSIDE 
 
 is made either in location or construction, and also if the 
 land owner's property is "injuriously affected or dimin- 
 ished in value by occupation of the ground or of the air 
 or otherwise," and that whether he is the owner of the 
 fee of the highway or not. Consequently, it is not neces- 
 sary, in order to entitle you to damages, that the boundary 
 of your land should be, as is usually the case, in the middle 
 of the highway. If your land merely abuts upon the 
 highway, and you are injured by any construction or 
 alteration in an electric line, you are entitled to dam- 
 ages. If no damages are awarded by the city or town 
 officers, the land owner must pay the costs of the apprais- 
 ers. "The mayor and aldermen and selectmen shall 
 each receive two dollars a day for services performed as 
 appraisers." Revised Laws, Chap. 122, Sec. 3. 
 
 A person who is aggrieved by the assessment of his 
 damages may have the damages determined by a jury, 
 as in the case of damages for laying out highways. Re- 
 vised Laws, Chap. 122, Sec. 5; Revised Laws, Chap. 
 48, Sec. 80. If the jury gives the land owner no more 
 than the municipal authorities gave him, he must pay 
 the costs of the jury trial. If the jury does give him 
 more, the company must pay the costs. You should 
 remember that you must apply for damages within three 
 months after the alteration or construction causing the 
 injury, otherwise your claim is barred. 
 
 When a company sends its men along the line to put 
 in new poles or string new wires, if these men injure 
 your trees, then is the time to apply for damages. The 
 destruction or mutilation of a beautiful tree is really an 
 
ELECTRIC LINES IN PUBLIC WAYS 37 
 
 injury not only to the owner, but to all who pass along 
 that highway. 
 
 If damages are awarded against a company under the 
 above Section 3, and it fails to pay the same within thirty 
 days after demand, the mayor and aldermen or selectmen 
 may, upon request of the person in whose favor such 
 damages were assessed, remove all the poles, wires, or 
 other structures of such company from that portion of 
 the street or way upon which the land of such person abuts; 
 but before doing this they must leave a written state- 
 ment at the office of such company in such city or town 
 of the time when and the place where they intend to 
 remove such poles, wires, or structures, not less than 
 forty-eight hours prior to such removal. If such com- 
 pany has no office in such city or town, the notice must 
 be deposited in the post-office, postage prepaid, and 
 directed to such company at its office in some city or town 
 in the county. The city or town may recover the expense 
 of such removal from the company. 
 
 The land owner, however, is not confined to this 
 remedy, but may also enforce the collection of damages 
 according to the usual legal methods. See Revised Laws, 
 Chap. 122, Sec. 4. 
 
 In this connection it may be noted that, if a company Action of tort, 
 has complied with all necessary formalities in regard to 
 its location, but constructs or maintains its lines in such 
 a way as to do unnecessary damage to trees or other 
 private property, the proper remedy may be an action 
 of tort rather than a petition under the above statute. 
 See Aldworth v. Lynn, 153 Mass. 53. The three months' 
 
travellers. 
 
 38 THE LAW OF THE ROADSIDE 
 
 statute of limitation would not apply to such an action. 
 Under certain circumstances the land owner might recover 
 triple damages. See Revised Laws, Chap. 185, Sec. 7. 
 
 An electric company has no right to cut or trim shade 
 trees standing in the public way, even when absolutely 
 necessary to the erection of its lines, except by comply- 
 ing with the statutes for protection of shade trees as 
 outlined in Chapter II. of this pamphlet. If any cutting 
 of trees or trimming of branches is required to make 
 room for their poles or wires, they should apply to the 
 tree warden in a town, or other official having charge of 
 trees in a city, to take such action as may be necessary, 
 Damages to Highways must be kept by the town reasonably safe 
 and secure for the passage of persons and teams. Al 
 though the municipal authorities may permit electric 
 companies to run their lines through the highways, such 
 companies must not incommode the public use of high 
 ways or public roads. Revised Laws, Chap. 122, Sec. 1 
 
 If, however, an electric company places its poles in 
 accordance with the specifications made by the mayor 
 and aldermen or by the selectmen, and a traveller is 
 injured by colliding with one of such poles, a delicate 
 question arises as to the liability of the company and 
 also as to whether the town may be liable for such injury 
 on the ground that it is caused by a defect in the 
 highway. 
 
 In Young v. Yarmouth, 9 Gray, 386, a decision made 
 in 1854, it was held that the town was not liable, and thai 
 it was not competent for the jury to find that a telegrapr 
 post placed in the highway by permission of the selectmer 
 
ELECTRIC LINES IN PUBLIC WAYS 39 
 
 was a defect such as would render the town liable to any 
 one injured thereby; but afterwards the statute was 
 changed, and now reads as follows: — 
 
 "A telegraph, company shall be liable in damages to a person in- 
 jured in his person or property by the poles, wires or other apparatus 
 of such company. If they are erected upon a public way, the city 
 or town shall not, by reason of anything contained in this chapter 
 or done thereunder, be discharged from its liability, but all damages 
 and costs recovered against it on account of such injury shall be re- 
 imbursed by the company which owns the poles, wires or other ap- 
 paratus." Revised Laws, Chap. 122, Sec. 15. 
 
 By virtue of the above statute, applicable only to tele- 
 graph companies, such a company is liable for injuries 
 caused by the presence of its poles or wires in the high- 
 way, irrespective of negligence on its part, and although 
 it has erected them strictly in accordance with the loca- 
 tion granted it. Riley v. N. E. Tel. & Tel. Co., 184 Mass. 
 150. If such poles or wires are so erected as to cause an 
 obstruction of the highway, the city or town may be liable 
 for injuries caused by them, but under the terms of the 
 above statute may recover over from the telegraph com- 
 pany all damages and costs recovered against it. Com- 
 panies, other than telegraph companies, are probably not 
 liable unless negligent in the erection or maintenance of 
 their poles or wires; and cities and towns are probably 
 not liable for injuries caused by such poles or wires, even 
 though they constitute an obstruction, if erected in accord- 
 ance with the grant of location. Young v. Yarmouth, 9 
 Gray, 386; Riley v. Tel. Co., 184 Mass. 150. In no 
 
40 THE LAW OF THE ROADSIDE 
 
 
 event can any recovery be had against either the city or 
 town or the company, unless the plaintiff was in the 
 exercise of due care. 
 
 If a telegraph pole should fall down and break your 
 fence or injure your trees, you may recover from the 
 company. In this case you could not recover from the 
 town, as the injury would not be in consequence of a 
 defect in the highway as a place of passage. In the case 
 of a pole of a company other than a telegraph company, 
 it would be necessary to show negligence on the part of 
 the company. 
 
CHAPTER II. 
 SHADE TREES IN PUBLIC WAYS. 
 
 People in America are gradually coming to realize the 
 pleasure and profit of good roads. Many of our so-called 
 "roads" have, in the past, been mere tracks of sand or 
 mud, according to the weather, along which teams and 
 people could, at best, pass without imminent danger of 
 catastrophe. Along with the improvement in the road- 
 beds has come a realization of the advantage and pleasure 
 of shade trees within the limits of the public way. As a 
 result of this, a knowledge of the law in relation to trees 
 in public ways is now important, not only to the owners 
 of land, but also to city and town officials. The follow- 
 ing is an attempt to state briefly and clearly, with cita- 
 tions of the chief authorities, the law on this subject as 
 it exists within the Commonwealth of Massachusetts. 
 
 It should be noted, in the first place, that ordinarily Ownership 
 the public has only a right of way or easement in the land of fee " 
 comprised within the limits of a public way. The fee 
 of the land is still in the original owner, or in those claim- 
 ing title under him. Whenever land is conveyed, de- 
 scribed as bounding on a street or road, such conveyance, 
 unless a contrary intention expressly appears, carries 
 title to the middle of such street or road if the grantor's 
 ownership extends so far. Boston v. Richardson, 13 
 
42 THE LAW OF THE ROADSIDE 
 
 Allen, 146, 154. The law on this point is very clearly 
 stated in the case of Tucker v. Eldred, 6 R. I. 404, where 
 the Court said: — 
 
 "By the general rules of law the public have but an easement 
 upon the land lying within the lines of a highway. Notwithstanding 
 the laying out of the highway and the condemnation of the land 
 to the use of the public for travel, the title to the soil, and all the 
 profits thereof consistent with the existence of the easement, remain 
 in the original owner. He has a right to the freehold and to all the 
 profits which may be derived from it, consistently with the right of 
 passage of the public, — to all mines beneath the surface, to all trees, 
 grass, and pasturage upon and above the surface. Perley v. Chand- 
 ler, 6 Mass. 454." 
 
 The effect of the statutes in relation to trees in the 
 public ways may be said, as a whole, to be to extend the 
 rights of the public as against those of the owner of the 
 fee, so that now the public has, not merely the right of 
 passing to and fro, but a further right, — that such passing 
 be rendered pleasant by the shade and ornament of trees. 
 
 We may consider this subject advantageously under 
 the following subdivisions: — 
 
 Section 1. TREES AND BUSHES STANDING WITHIN 
 THE LIMITS OF THE PUBLIC WAYS. 
 
 Recent statutes have greatly simplified the law with 
 regard to trees and bushes in highways and other public 
 places, which had been left by successive statutes in great 
 confusion. 
 
 Every town must now at its annual meeting in every 
 
SHADE TREES IN PUBLIC WAYS 43 
 
 year elect a tree warden for the ensuing year. Revised Tree wardens. 
 Laws, Chap. 11, Sec. 334. There is no such general 
 statute with regard to cities, but it is assumed that the 
 charter of every city confers on some official the care of 
 public shade trees, and the general statutes, hereinafter 
 referred to, confer and impose on such officials the same 
 powers and duties as those of the tree wardens in towns, 
 except as hereinafter noted. 
 Revised Laws, Chapter 51, Section 10, is as follows: — 
 
 "The officer who has the care of the trees belonging to a city or 
 town and his assistants, but no other person, . . . may, and if re- 
 quired by the surveyors or road commissioners shall, trim or lop off 
 trees, except public shade trees in towns, and bushes standing in ways, 
 and, if ordered by a vote of the mayor and aldermen, selectmen or 
 road commissioners passed after public notice and hearing, shall 
 cut down and remove such trees and bushes. The surveyors and 
 road commissioners shall cause whatever obstructs such ways, or 
 endangers, hinders or incommodes persons travelling thereon to be 
 removed; . . . ". 
 
 The first clause, it will be seen, applies to all trees and 
 bushes standing in ways in cities, but excepts public 
 shade trees (elsewhere defined as meaning all shade trees 
 within or on the limits of a public way, Revised Laws, 
 Chap. 53, Sec. 12; Acts 1910, Chap. 321) in towns. 
 Its applicability in towns would therefore seem to be con- 
 fined to bushes and such trees as are not shade trees, 
 and of course only to those standing in public ways. It 
 does not apply to trees standing outside the boundaries 
 of public ways, even though the branches extend out over 
 such a way. The tree warden has no authority to cut 
 
44 THE LAW OF THE ROADSIDE 
 
 or trim such trees without the owners' consent, but the 
 surveyors or road commissioners may, under the last 
 clause of the section, cause parts of such trees to be re- 
 moved if they obstruct the way or incommode travellers 
 thereon. Commonwealth v. Byard, 200 Mass. 175. 
 
 This section restricts the authority of surveyors or road 
 commissioners to requiring the tree warden to trim or 
 lop off the trees and bushes in public ways above enum- 
 erated and to removing obstructions. It gives the tree 
 warden (or similar officer in cities) discretion to trim such 
 trees and bushes and the right to cut them down when 
 ordered by the mayor and aldermen, selectmen or road 
 commissioners, after public notice and hearing, but not 
 otherwise. 
 
 Revised Laws, Chapter 53, Sections 12, 13, are as 
 follows: — 
 
 Authority of "Section 12. The tree warden may appoint and remove deputy 
 
 tree wardens, 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 in the town, 
 except those in public parks or open places under the jurisdiction of 
 the park commissioners, and of those, if so requested in writing by the 
 park commissioners, and shall enforce all the provisions of law for 
 the preservation of such trees. He shall expend all money appro- 
 priated for the setting out and maintenance of such trees, but no 
 trees shall be planted within the limits of a public way without the 
 approval of the tree warden, and until a location therefor has been 
 obtained from the selectmen, or from the road commissioners where 
 authority has been vested in them. Regulations for the care and 
 preservation of public shade trees made by him, approved by the 
 selectmen and posted in two or more public places, imposing fines 
 and forfeitures of not more than twenty dollars in any one case, shall 
 
SHADE TREES IN PUBLIC WAYS 45 
 
 have the force and effect of town by-laws. All shade trees within 
 or on the limits of a public way shall be public shade trees; and when 
 it appears in any civil proceeding under process of law where the 
 ownership of or rights in the tree are material to the issue, that from 
 length of time or otherwise, the boundaries of the highway cannot be 
 made certain by the records or by monuments, and for that reason 
 it is doubtful whether the tree was within or without the limits of 
 the highway, it shall be taken to have been within the limits of the 
 highway until the contrary is shown." (As amended Acts 1910, 
 Chap. 321.) 
 
 "Section 13. Public shade trees shall not be cut or removed, Cutting of public 
 in whole or in part, except by the tree warden or his deputy or by a snade trees - 
 person holding a license so to do from the tree warden, nor shall they 
 be removed by the tree warden or his deputy or other person without 
 a public hearing at a suitable time and place, after notice thereof 
 posted in two or more public places in the town and upon the tree 
 and after authority granted by the tree warden therefor. Whoever 
 violates the provisions of this section shall forfeit not less than five 
 nor more than one hundred dollars to the use of the town." As 
 amended Acts 1908, Chap. 296, Sec. 3. 
 
 Acts of 1910, Chapter 363, Section 1, confers and im- 
 poses the powers and duties of tree wardens, under the 
 above Sections 12 and 13, upon the officials in cities 
 charged by the charters or ordinances of said cities with 
 the care of shade trees within the limits of the highway. 
 
 The above Section 13, as the law now stands, governs 
 the cutting and removing of public shade trees (i.e., 
 all trees within or on the limits of any public way) in 
 whole or in part, both in cities and towns. Such cutting 
 or removal may be done only by the tree warden or his 
 deputy or one licensed by him, and only after public notice 
 and hearing. So far as towns are concerned, this is now 
 
46 THE LAW OF THE ROADSIDE 
 
 the only provision as to cutting shade trees. It seems 
 reasonable to suppose, however, that the requirement 
 for notice and a hearing does not apply to such trimming 
 as the health and development of the trees may require. : 
 Probably Section 12, above quoted, is broad enough to 
 leave this to the discretion of the tree warden, under the 
 general power of care and control. It is believed that 
 this general power probably extends also to lopping off 
 branches, when required to keep the way free from ob- 
 struction. Such authority to trim and lop off public 
 shade trees in his discretion is, as we have already seen, 
 expressly granted to the warden or similar officer in cities 
 by Section 10 of Chapter 51. 
 
 To recapitulate briefly, the present law as to trees and 
 bushes within the public ways seems to be as follows: — 
 
 1st. Cutting and trimming. 
 
 (a) Shade trees. 
 
 Only the tree warden (including in that designation 
 similar officers in cities) or his deputy or licensee may cut, 
 remove, trim, or lop off shade trees. 
 
 He may only cut or remove them in whole or in part 
 after public notice and a hearing. In cities he must cut 
 or remove them if ordered by vote of the mayor and 
 aldermen after public notice and hearing, but apparently 
 may act without such vote. In towns he is independent 
 of other officers in this regard. 
 
 (b) Bushes and trees other than shade trees. 
 
 The care of these in towns was formerly imposed upon 
 the town forester (Revised Laws, Chap. 53, Sec. 14), but 
 
SHADE TREES IN PUBLIC WAYS 47 
 
 this office was abolished by Acts of 1907, Chapter 475, 
 Section 10. The only provision of law now applicable is 
 Section 10 of Chapter 51, Revised Laws, above quoted. 
 By this section the tree warden (or similar officer in cities) 
 may trim or lop off such trees and bushes in his discretion, 
 and, if ordered by the highway surveyor or road com- 
 missioners, must do so. He must cut down and remove 
 them if ordered by vote of the mayor and aldermen, 
 selectmen or road commissioners, after public notice and 
 hearing, but unless so ordered apparently has no authority 
 to do so. 
 
 (c) Only surveyors and road commissioners, in the ex- 
 ercise of their duty to keep the ways clear of obstructions, 
 may cut or trim trees on private land overhanging the 
 way. 
 
 2d. Planting of trees in public ways. 
 
 The tree warden (or similar official in cities) shall 
 expend all money appropriated for this purpose. (Sec. 
 12 of Chap. 53, above.) 
 
 No tree shall be planted without his approval, nor shall 
 it be planted by him or any other person until a location 
 therefor has been obtained from the selectmen or road 
 commissioners, if any. 
 
 The extension of this section to cities by Acts 1910, 
 Chapter 363, presumably makes a location from the mayor 
 and aldermen a prerequisite to planting trees in public 
 ways in cities. 
 
48 
 
 THE LAW OF THE ROADSIDE 
 
 Section 2. TREES AND BUSHES IN PARKS. 
 
 Park 
 commissioners. 
 
 In cities and towns having park commissioners, control 
 of the whole subject-matter covered by the various sec- 
 tions above cited is vested in the park commissioners 
 in places under their jurisdiction (Revised Laws, Chap. 28, 
 Sec. 4; Chap. 53, Sec. 15), except thac the care and con- 
 trol of public shade trees in those places is conferred upon 
 the tree warden, if he is requested in writing by the park 
 commissioners to assume the same. Revised Laws, Chap. 
 53, Sec. 12, amended Acts 1910, Chap. 321. Where the 
 park commissioners have jurisdiction, they are probably 
 subject to the same requirements as to public notice 
 and hearing with regard to cutting trees in public ways, 
 as have been above set forth. They are, however, entirely 
 independent of the mayor and aldermen, selectmen, or 
 other officials. 
 
 Section 3. TREES AND BUSHES IN STATE 
 HIGHWAYS. 
 
 Revised Laws, Chapter 47, Section n, provides: — 
 
 "Said commission (i.e. the Massachusetts Highway Commission) 
 shall keep all state highways reasonably clear of brush, shall cause 
 suitable shade trees to be planted thereon if practicable." . . . 
 
 Section 21 provides: — 
 
 "No state highway shall be dug up . . . and no trees shall be 
 planted or removed . . . without the written permit of the highway 
 
SHADE TREES IN PUBLIC WAYS 49 
 
 commission, and then only in accordance with the regulations of said 
 commission." 
 
 Acts 1905, Chapter 279, Section 1 (as amended Acts 
 1908, Chap. 297, Sec. 1) provides: — 
 
 "Section i. The highway commission shall have the exclusive Highway 
 care and control of all trees, shrubs and growths within the limits of Commission, 
 state highways, and may trim, cut or remove such trees, shrubs and tree , ■ ubs 
 growths, or license the trimming, cutting or removal thereof. No within State 
 such tree, shrub or other growth shall be trimmed, cut or removed highways. 
 by any person, other than an agent or employee of the commission, 
 whether such person is or is not the owner of the fee in the land on 
 which such tree, shrub or growth is situated, except upon a permit 
 in writing from said commission: provided, however, that if the com- 
 mission shall refuse to issue a permit to any such owner to cut or 
 remove any such tree, shrub or other growth, the damages, if any, 
 sustained by him shall be determined by said commission and paid 
 by the commonwealth. Any person aggrieved by the action of the 
 commission as to the trimming, cutting, removal or retention of any 
 such tree, shrub or other growth, or as to the amount awarded to 
 him for the same by the commission, may have the damages, if any, 
 which he has sustained, determined by the superior court for the 
 county in which the said tree, shrub or other growth is or was situ- 
 ated, upon a petition filed for the purpose, in the same manner as for 
 the taking of land for ways, and his damages, so determined, shall 
 be paid by the commonwealth." 
 
 This section, it will be seen, leaves the entire matter 
 of planting, cutting, and trimming all trees and bushes 
 within the limits of State highways to the sole care and 
 discretion of the Highway Commission. The right is 
 reserved, however, to the owner of the fee in the highway 
 to recover damages, if not permitted to remove any tree 
 
5Q 
 
 THE LAW OF THE ROADSIDE 
 
 or shrub which he may consider injurious to his property, 
 and if dissatisfied with the award of the Commission the 
 land owner may petition the Superior Court for the 
 assessment of damages by a jury. Probably such petition 
 must be filed within a year from the refusal of the Com- 
 mission to permit the removal. See Revised Laws, 
 Chap. 48, Sects. 28, 80, 109. 
 
 Owner of fee. 
 
 Must petition 
 tree warden for 
 right to cut or 
 remove trees. 
 
 Section 4. THE RIGHTS OF THE OWNER OF 
 THE FEE OF THE WAY. 
 
 The rights of the owner of the fee of a public way over 
 the trees standing therein have been gradually abridged 
 until he has very few left. Under Revised Laws, Chapter 
 53, Section 12, as amended, quoted above, he may plant 
 trees within the way only with the approval of the tree 
 warden and after obtaining a location therefor from the 
 municipal authorities, and those trees can only be re- 
 moved after public notice and a hearing as above set 
 forth, and an adjudication that public necessity requires 
 such removal. 
 
 If you are the owner of the fee of a public way and 
 desire to remove a tree, whether it was planted as a shade 
 tree or not, you should apply to the town tree warden 
 (or similar officer in a city) to grant you a license to do 
 so, after public notice and a hearing. In case of his 
 refusal you may apply, in a city to the mayor and alder- 
 men to order him to remove it, or in a town to the select- 
 men or road commissioners, if it is not a shade tree. The 
 distinction between shade trees and others, however, is 
 
SHADE TREES IN PUBLIC WAYS 5 1 
 
 not always easy to draw. If, as may sometimes occur, 
 the town officers require such tree to be retained, and you 
 are damaged by such retention (e.g., if the tree is seri- 
 ously shading your building or garden, or is in a position 
 where you desire to make a driveway, or is otherwise 
 injuring you), you might formerly apply for damages 
 as you would in case of an alteration in a highway. See 
 Revised Laws, Chap. 53, Sec. 7. But this section was 
 repealed by Acts 1910, Chapter 363, and apparently the 
 land owner now has no redress in such a case, except in 
 the case of State highways, as above noted. 
 
 While the owner of the fee may not himself trim or cut 
 down trees in the public ways, he has full protection 
 against their mutilation or destruction by the town 
 officers or others without his having a chance to be heard. 
 
 In White v. Godfrey, 97 Mass. 472, a suit was brought 
 against the superintendent of streets for cutting off the 
 limbs of a tree in order to move an engine-house belong- 
 ing to the city, which the city council had ordered to 
 be moved to another location. No application for a 
 license to move it was made, as provided in the ordi- 
 nances, but no more of the tree was cut than was neces- 
 sary; and the owner of the tree recovered damages 
 from the superintendent. 
 
 See also Chase v. Lowell, 149 Mass. 85, a case where 
 the shade tree statutes had rather a surprising effect. 
 The plaintiff was injured while walking along the side- 
 walk by a tree being blown over and striking him, 
 knocking him senseless. It appeared that the tree was 
 rotten and had been dangerous for some time. The 
 
52 
 
 THE LAW OF THE ROADSIDE 
 
 judge in instructing the jury assumed that the highway 
 surveyor had authority to cut down and remove the 
 tree. The case went to the Supreme Judicial Court, 
 and it was held that the surveyor had no such authority, 
 but that his power under the statutes then in force was 
 limited to making complaint and obtaining a vote of the 
 mayor and aldermen, selectmen or road commissioners 
 (Sec. 2 of Chap. 123 of Acts of 1885), and that, until he 
 had obtained such authority to remove the tree, his duty 
 was merely to take reasonable precautions to protect 
 the public from danger by its falling. At the subsequent 
 trial of the case the plaintiff recovered on the ground 
 that such reasonable precautions had not been taken. 
 Chase v. Lowell, 151 Mass. 422. 
 
 Section 5. CRIMINAL OFFENCES AND PENALTIES. 
 
 Wanton 
 destruction of 
 trees or shrubs. 
 
 The following are certain statutes making illegal inter- 
 ference with trees in ways a criminal offence, and prescrib- 
 ing certain punishments. These statutes frequently fur- 
 nish an effectual and sometimes the only remedy for such 
 interference. 
 
 Revised Laws, Chapter 208, Sections 101, 102: — 
 
 "Section ioi. Whoever wantonly injures, defaces or destroys 
 a shrub or plant or an object or fixture of ornament or utility in a 
 public way or place or in any enclosure shall forfeit not less than five 
 nor more than one hundred dollars, one-half to the use of the com- 
 plainant and one-half to the use of the owner of the property injured, 
 defaced or destroyed." As amended Acts 1902, Chap. 544, Sec. 31. 
 
 "Section 102. Whoever wantonly injures, defaces or destroys 
 
SHADE TREES IN PUBLIC WAYS 53 
 
 an ornamental or shade tree in a public way or place, or negligently 
 or wilfully suffers an animal, driven by or for him or belonging to him 
 and lawfully in a public way or place, to injure, deface or destroy such 
 tree, or whoever, by any other means, negligently or wilfully injures, 
 defaces or destroys such tree, shall forfeit not less than five nor more 
 than one hundred dollars, one-half to the use of the complainant and 
 one-half to the use of the city or town in which said act is committed; 
 and shall in addition thereto be liable to said city or town or other 
 person interested in said tree for all damages caused by such act." 
 As amended Acts 1902, Chap. 544, Sec. 32. 
 
 "Wantonly" probably means nothing more than a 
 careless indifference to the rights of others, such as is 
 sometimes shown by the linemen of electric companies 
 when they cut shade trees standing near dwellings, for 
 the purpose of getting a free space for their lines. 
 
 Section 101 furnishes an excellent remedy for such 
 abuses as this, as well as for the wanton injury sometimes 
 done out of pure malice. 
 
 Section 102 applies to the stupid and careless people 
 who hitch their horses to shade trees, as well as to the 
 roaming (country) cow. 
 
 Section 104 of the same chapter (as amended by Acts Advertising 
 1905, Chap. 279, Sec. 2) reads: — SIgns ' 
 
 " Section 104. Whoever affixes to a tree in a public way or place 
 a playbill, picture, announcement, notice, advertisement or other 
 thing, whether in writing or otherwise, or cuts, paints or marks 
 such tree, except for the purpose of protecting it 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 highway commission in 
 the case of a state highway, shall be punished by a fine of not more 
 than fifty dollars for each offence. In towns the tree warden shall 
 enforce the provisions of this section and of the preceding two sec- 
 
54 THE LAW OF THE ROADSIDE 
 
 tions: provided, however, that should he fail to act in the case of a 
 state highway within thirty days after the receipt by him of a 
 complaint in writing from the Massachusetts highway commission, 
 said commission may proceed to enforce the provisions of this section." 
 
 Section 115, which covers the case of signs on trees and 
 other private property whether within or without the 
 highway, is quoted at p. 69. 
 
 The following statute applies to advertising signs in 
 public parks and parkways and also such signs as may 
 be near to and visible from such parks and parkways. 
 It is by no means limited to signs on trees. 
 
 Acts of 1903, Chapter 158: — 
 
 Advertising "Section i. The metropolitan park commission and the officer 
 
 signs in or near or officers having charge of public parks and parkways in any city 
 public parks. or town mav ma k e sucn reasonable rules and regulations respecting 
 the display of signs, posters or advertisements in or near to and 
 visible from public parks and parkways entrusted to their care, as 
 they may deem necessary for preserving the objects for which such 
 parks and parkways are established and maintained. 
 
 " Section 2. The commission or officers aforesaid shall give notice 
 of all rules and regulations made by them under authority of this 
 act by posting the same in three or more public places in the city 
 or town in which the public park or parkway is situated, and by 
 publishing the same in some newspaper, if there be one, published 
 in such city or town. Such notice shall be deemed legal notice to 
 all persons. 
 
 "Section 3. Whoever violates any rule or regulation made and 
 published as aforesaid shall be punished by a fine not exceeding 
 twenty dollars for each offence; and any sign, poster or advertise- 
 ment erected or maintained in violation of any such rule or regula- 
 tion shall be deemed a public nuisance." 
 
SHADE TREES IN PUBLIC WAYS 55 
 
 The scope of regulations which may lawfully be made 
 under this statute, so far as they relate to signs outside 
 of such parks, though visible therefrom, is greatly lim- 
 ited by the decision in Commonwealth v. Boston Adver- 
 tising Co., 188 Mass. 348, where it was held that a regu- 
 lation prohibiting ordinary advertising signs, not immoral, 
 indecent, or dangerous, is unconstitutional, because the 
 statute makes no provision for compensation to the land 
 owner. 
 
 See also Revised Laws, Chapter 208, Section 115, here- 
 inafter quoted in the chapter on Trespass, which gives 
 to any person the easy remedy of removing or obliter- 
 ating signs unlawfully placed within the limits of a public 
 way. 
 
 Acts of 1905, Chapter 279, Section 3 (as amended Acts interfering with 
 1908, Chap. 297, Sec. 2), provides for the punishment of ^t^e 
 persons illegally interfering with trees and shrubs on highways. 
 State highways, as follows: — 
 
 "Section 3. Whoever without authority cuts down, trims or 
 removes a tree, shrub or growth within the limits of a state 
 highway, or maliciously injures, defaces or destroys any such tree, 
 shrub or growth shall forfeit not less than five nor more than one 
 hundred dollars to the use of the commonwealth." As amended 
 Acts 1908, Chap. 297, Sect. 2. 
 
 By Section 1 2 of Chapter 53 of the Revised Laws, Posting of 
 quoted above at page 44, regulations made by the tree £jf tree°warden ^ 
 warden (or similar officer in cities) for the care and preser- 
 vation of public shade trees, when approved by the select- 
 men and posted in two or more public places, imposing 
 
56 THE LAW OF THE ROADSIDE 
 
 fines and forfeitures of not more than twenty dollars in 
 any one case, are given the force and effect of town by- 
 laws. 
 
 Section 13 of the same chapter, also quoted at page 45, 
 regulating the cutting of public shade trees, provides a 
 penalty of not less than five nor more than one hundred 
 dollars to the use of the town for a violation of its pro- 
 visions. 
 
CHAPTER III. 
 
 LAWS RELATIVE TO INSECT PESTS, WITH 
 ESPECIAL REFERENCE TO THE ROADSIDE. 
 
 Revised Laws, Chapter 25, Section 16, is as follows: — 
 
 "Section 16. Towns may appropriate money to be expended Appropriations, 
 under the direction of the tree warden for exterminating insect pests 
 in the public ways and places and for removing therefrom trees and 
 plants upon which such insects naturally breed, except trees and 
 plants from which the owner or lessee of land abutting on said public 
 way or place annually exterminates all such insect pests to the satis- 
 faction of the tree warden." 
 
 So far as removal of shade trees is concerned, the tree 
 warden should of course comply with the various stat- 
 utes hereinbefore referred to. 
 
 Acts of 1902, Chapter 57, authorizes the municipal 
 officers to whom the care of public shade trees is intrusted 
 (i.e., the tree warden or similar officer) to enter on private 
 land to investigate the brown tail moth, elm leaf beetle, 
 or any other tree or shrub destroying pest which may 
 be discovered. A fine is provided for any one opposing 
 such entry. A provision for damages originally included 
 in this statute was subsequently repealed. Acts of 1905, 
 Chap. 381, Sec. 10. 
 
 Revised Laws, Chapter 208, Section 108, is as follows: — 
 
58 
 
 THE LAW OF THE ROADSIDE 
 
 "Section 108. Whoever knowingly brings the insects which are 
 known as the ocneria dispar or gypsy moth or as the brown-tail 
 moth, or their nests or eggs, into this commonwealth, or whoever ' 
 knowingly transports said insects or their eggs or nests from one city 
 or town to another city or town in the commonwealth, except when 
 engaged in, and for the purpose of, destroying them shall be 
 punished by a fine of not more than two hundred dollars or b> 
 imprisonment for not more than sixty days, or by both such fine 
 and imprisonment." 
 
 Act of 1 90s 
 gypsy and brown 
 tail moths. 
 
 State Forester's 
 powers. 
 
 Local 
 superintendent. 
 
 Acts of 1905, Chapter 381, is entitled "An Act to pro- 
 vide for suppressing the gypsy and brown tail moths." 
 
 Section 1 declares said moths, their pupae, nests, eggs, 
 and caterpillars to be a public nuisance for the purposes 
 of the act. 
 
 Section 2 established the office of superintendent, bul 
 this office was abolished, and the work of suppressing 
 these pests placed in charge of the State Forester b) 
 Acts of 1909, Chapter 263. 
 
 Section 3 (as amended Acts 1906, Chap. 268, Sec. 1 
 1908, Chap. 591, Sec. 1) prescribes the duties of this 
 officer. He is empowered to make rules and regulations 
 subject to the governor's approval, governing all opera 
 tions by cities, towns, or individuals under the act. H< 
 and his agents may enter on private land. 
 
 Section 4 (as amended Acts 1906, Chap. 268, Sec. 2 
 1907, Chap. 521, Sec. 1; 1910, Chap. 150, Sec. 1) require 
 the mayor and aldermen or selectmen annually in Marcl 
 or April to appoint, subject to approval by the Stati 
 Forester, a local superintendent for the suppression 
 the gypsy and brown tail moths, whose duty it is, unde 
 
LAWS RELATIVE TO INSECT PESTS 59 
 
 the advice and general direction of the State Forester, 
 to destroy the eggs, caterpillars, pupae, and nests of 
 these insects within the city or town, except in parks and 
 other property under the control of the Commonwealth, 
 and except in private property, save as hereinafter noted. 
 This section places on the local superintendent the 
 duty of destroying these pests within all public ways, 
 except apparently State highways, and on town property. 
 In State highways the work is left under the control of 
 the Highway Commission by virtue of the statutes cited 
 in the last chapter, and the Legislature has made special 
 annual appropriations for that work. It is not unusual, 
 however, for the Commission to employ the local super- 
 intendent to do the work on its behalf. 
 
 Any city or town spending over $5,000 in any year for Reimbursement 
 these purposes may be reimbursed by the Commonwealth of towns - 
 to the extent of 50 per cent, of such excess, on filing vouch- 
 ers as required by this section. In certain cases a greater 
 amount of reimbursement may be had. For details see 
 Section 4 of the Act as amended. 
 
 By Section 5 (as amended Acts 1906, Chap. 268, Sec. 3; Action by state 
 1907, Chap. 521, Sec. 2; 1911, Chap. 474) the State Forester - 
 Forester, if in his opinion any city or town is not spending 
 enough for this work or is not conducting it properly, 
 may order such city or town to spend such amount, within 
 certain prescribed limits, as he may deem necessary, and 
 in such manner as he may with the governor's consent 
 prescribe. A fine of a hundred dollars a day may be 
 imposed on the city or town for failure to comply with 
 his directions. 
 
6o THE LAW OF THE ROADSIDE 
 
 The State Forester may also with the governor's con 
 sent, in case of emergency or great danger due to th 
 neglect of a city or town, himself carry on this work ii 
 such city or town, the expense, less any amount due a 
 reimbursement from the Commonwealth, to be assesse< 
 as an additional State tax. He is further empowered 
 with like consent, in case of emergency, to spend a limitec 
 amount of the State appropriation in parks not under th 
 control of the Commonwealth and in cemeteries, wood 
 land, and other places of public resort. He may also tak 
 complete control of the work of suppression in such citie 
 and towns as may, through the proper officials, reques 
 it, the cost to be collected from the city or town as 
 additional State tax. The expense to any city or to 
 however, is limited in accordance with the provisions o: 
 Section 4, above cited. 
 On private land. Section 6 (as amended Acts 1906, Chap. 268, Sec. 4 
 1908, Chap. 591, Sec. 2) is concerned with the suppres- 
 sion of the pests on private property. Under this sectior. 
 the mayor or selectmen shall annually on or before Novem- 
 ber 1, and at other times, if they see fit, give notice tc 
 the owners of all infected lands, requiring the destruc- 
 tion of the moths and their eggs, caterpillars, etc., within 
 a given time. If, however, in the opinion of the mayoi 
 or selectmen, the cost of doing this work on any contig- 
 uous tract of land owned by the same individual would 
 exceed a half of one per cent, of the assessed valuation 
 of the land, then the land owner shall only be required 
 to do it on a designated part of his property; and it may 
 be noted that there is no provision for the work being 
 
LAWS RELATIVE TO INSECT PESTS 61 
 
 done by any one on the remainder of the property. The 
 inevitable result is that in the case of tracts of woodland 
 on which there are no buildings, or only buildings of small 
 value, so that the assessed valuation of the whole is low, 
 the greater part of the tract may be entirely uncared for, 
 so far as these pests are concerned. If the land owner 
 fails to carry out the requirements of the notice, the city 
 or town must do the work and assess the actual cost upon 
 the owner, not to exceed, however, half of one per cent, 
 of the assessed valuation of the land. Any additional 
 sums required must be spent by the town, subject to the 
 right of reimbursement by the Commonwealth, as pro- 
 vided above. Entry on private lands for purposes of 
 investigation is permitted. 
 
 Section 7 (as amended Acts 1906, Chap. 268, Sec. 5; Assessments. 
 1907, Chap. 521, Sec. 3) authorizes the local assessors to 
 assess upon any land which, in their opinion, has been 
 benefited by work done thereon by the State Forester or 
 'the city or town beyond the general advantage to all 
 land in the city or town, the amount of such benefit, not 
 exceeding half of one per cent, of the assessed valuation 
 of the land, less the amount actually spent by the land 
 owner in good faith for the suppression of the moths 
 during the preceding year. The land owner, if dissat- 
 isfied with the amount of the assessment, may appeal to 
 the superior court within thirty days after he has had 
 actual notice of the assessment, and the matter will be 
 determined by that court without a jury. The local 
 assessors are given authority to abate an assessment 
 laid against a land owner whom they believe to be 
 
62 THE LAW OF THE ROADSIDE 
 
 unable to pay the same, owing to age, infirmity, or 
 poverty. 
 
 This whole Section 7 does not appear to be of great 
 importance, because Section 6 provides for exacting pay- 
 ment from individuals in most, if not all cases where work 
 is done by the public authorities on private land, without 
 the necessity of proceeding under Section 7. 
 
 Assessments made under either of the above sections 
 are included in the annual tax bills and are to all intents 
 and purposes a part of the real estate tax and may be 
 collected in the same manner. 
 
 There is one further piece of important legislation in 
 regard to this general subject, 
 state nursery The Legislature in 1909 passed an act (Acts of 1909, 
 Chap. 444) providing for the appointment of a State 
 nursery inspector and prescribing his duties. 
 
 Under the terms of this act the inspector or his deputies 
 must annually inspect all nurseries in the State, and give a 
 certificate if and when no dangerous insect or fungous pests 
 are found therein, but not otherwise. Dealers other than 
 growers are required to obtain licenses from the in- 
 spector. No grower or dealer may sell or ship nursery 
 stock within the State unless he holds such a certificate 
 or license, and each shipment must be accompanied by 
 a copy thereof or such other evidence as the State Board 
 of Agriculture may prescribe. Dealers outside the State 
 before shipping nursery stock into the State must file with 
 the inspector copies of their inspection certificates granted 
 by another State or country, and receive a certificate 
 from the inspector, and each such shipment must be 
 
 inspector. 
 
LAWS RELATIVE TO INSECT PESTS 63 
 
 accompanied by a tag furnished by the inspector to such 
 dealers. Carriers are required to notify the inspector of 
 violations of this regulation. The inspector may inspect 
 all shipments and destroy them if infected. 
 
 Section 8 provides that the nursery inspector either 
 personally or through his deputies may inspect any or- 
 chard, field, garden, roadside, or other place where trees, 
 shrubs, or other plants are growing out of doors, either on 
 public or private land, which he may know or have reason 
 to suspect is infested with the San Jose scale or any serious 
 insect pest or plant disease liable to cause financial loss 
 to adjoining owners; and he may require owners of trees 
 or shrubs so infested to abate the pest within a given time, 
 and upon their failure to do so may enter and do the 
 work himself, in which case the cost must be paid by the 
 property owner. 
 
 It should be noted, however, that the act does not apply 
 to the gypsy or brown tail moths outside of places where 
 nursery stock is grown or on property immediately 
 adjoining the same. 
 
 Any land owner who is dissatisfied with any order of 
 the inspector or any action taken by him may appeal 
 within ten days to the secretary of the State Board of 
 Agriculture, which appeal acts as a stay of proceedings 
 until it has been heard and decided by the secretary of 
 said Board, whose decision is final. 
 
 Any violation of this act or interference with the carry- 
 ing out of its provisions is made a misdemeanor, subject 
 to fine. 
 
CHAPTER IV. 
 TRESPASS. 
 
 Besides the laws in Chapters I. and II. in relation to 
 electric lines and to shade trees in public ways, there are 
 several statutory provisions in relation to trespasses on 
 land which are of general interest and importance. As 
 the object of compiling this little pamphlet is to put in 
 brief and convenient form the law by means of which 
 the landscape may be protected from unnecessary dis- 
 figurement, it seems well that the statutes by which owners 
 of private estates may protect those estates from trespass 
 should be cited. Closely connected with the subject 
 of trespass is the law on the powers and duties of watch- 
 men and police officers, which is also briefly treated. 
 
 Trespass may be treated either as a criminal or as a 
 civil offence. 
 
 Section 1. CRIMINAL TRESPASS. 
 Trespass on Revised Laws, Chapter 208, Section 109, is as follows: 
 
 improved land. 
 
 "Whoever, without right, enters or remains in or upon the dwelling 
 house, buildings or improved or enclosed land of another, after hav- 
 ing been forbidden so to do by the person who has the lawful control 
 of said premises, either directly or by notice posted thereon, shall be 
 punished by a fine of not more than twenty dollars. A person who 
 
TRESPASS 65 
 
 is found committing such trespass may be arrested by a sheriff, 
 I deputy sheriff, constable, watchman or police officer and kept in 
 „ custody in a convenient place, not more than twenty-four hours, 
 1 Sunday excepted, until a complaint can be made against him for 
 the offence, and he be taken upon a warrant issued upon such com- 
 plaint." 
 
 The above section applies only to the case of trespass on 
 "buildings or improved or enclosed land," not the forest 
 unenclosed and unimproved. A man's house is his 
 castle. The law protects him in it and in his enclosed or 
 improved land by giving the summary and drastic remedy 
 of arrest without warrant. Notice that the "forbidding" 
 may be by posted notice, as well as orally. 
 
 The following statute of 1890, which is said to have 
 been passed in consequence of the killing of Mr. Cun- 
 ningham in Milton, provides for the case of trespass on 
 unenclosed and unimproved land (Revised Laws, Chap. 
 208, Sees, no, in): — 
 
 "Section iio. Whoever, without right, enters upon the land of Firearms 
 another with firearms, with intent to fire or discharge them thereon, 
 and, having been requested by the owner or occupant of such land 
 or by his agent to leave such land, remains thereon, shall be punished 
 by a fine of not more than two hundred dollars or by imprisonment 
 for not more than two months, or by both such fine and imprison- 
 ment. 
 
 "Section hi. Whoever wilfully tears down, removes or defaces 
 any notice posted on land by the owner, lessee or custodian thereof, 
 warning persons not to trespass thereon, shall be punished by a 
 fine of not more than twenty-five dollars," 
 
66 THE LAW OF THE ROADSIDE 
 
 Powers of j^ j s no t dear that a watchman would have the right to 
 
 watchmen. , , . . 
 
 arrest without a "warrant under this latter statute. The 
 inferior courts of Massachusetts are not agreed on the | 
 question whether an officer may arrest without a warrant 
 for any misdemeanor committed in his presence or whether 
 he may so arrest only in case the misdemeanor amounts 
 to a breach of the peace. The question is an open one, 
 it is said, among the police authorities of Boston. 
 
 In this condition of the law it would not be advisable 
 for an officer to arrest under these Sections no and in, 
 supra, unless the circumstances were such that he would 
 be willing to run the risk (in most cases slight) of a suit 
 for false imprisonment. 
 
 "Watchman," as used in the above statute, does not, 
 of course, mean an employee of a private citizen or cor- 
 poration delegated to guard premises, but an officer ap- 
 pointed by the mayor and aldermen or the selectmen 
 under authority of Revised Laws, Chapter 31, or Re- 
 vised Laws, Chapter 25, Section 94. The latter section 
 is as follows: — 
 
 "Selectmen may appoint police officers who shall have all the 
 powers of constables except that of serving and executing civil 
 process, who shall hold office during the pleasure of the selectmen and 
 who, when on duty, may carry such weapons as the selectmen shall 
 authorize." 
 
 Under this statute selectmen may, and often do, ap- 
 point employees of corporations and of private citizens 
 watchmen or police officers (practically the same in 
 authority). Such appointees have the power to arrest. 
 
TRESPASS 67 
 
 in cases of trespass to improved or enclosed land, given 
 by Revised Laws, Chapter 208, Section 109, noted 
 above. 
 
 Watchmen have, besides, the general authority given 
 by Revised Laws, Chapter 31, Section 2, as follows: — 
 
 "The watch shall suppress and prevent all disturbances and dis- 
 orders. During the night time, they may examine all persons abroad 
 whom they have reason to suspect of an unlawful design, and may 
 demand of them their business abroad and whither they are going; 
 may disperse any assembly of three or more such persons; and may 
 enter any building to suppress a riot or breach of the peace therein 
 Persons so suspected who do not give a satisfactory account of them- 
 selves, persons so assembled and who do not disperse when ordered, 
 and persons making, aiding or abetting in a riot or disturbance, may 
 be arrested by the watch, and shall thereupon be safely kept, by 
 imprisonment or otherwise, until the next morning and then taken 
 before a police, district or municipal court or trial justice to be ex- 
 amined and prosecuted." 
 
 Revised Laws, Chapter 208, Sections 91 (affected by Miscellaneous 
 Acts 191 1, Chap. 173), 99 (amended Acts 1904, Chap. 
 444, Sec. 1), 100 (amended Acts 1902, Chap. 544, Sec. 
 30), 105, 106 (amended Acts 1902, Chap. 544, Sec. 33), 
 107, 115, 116, and 121, bear upon other trespasses to 
 land. 
 
 These sections are as follows:— 
 
 "Section 91. Whoever wilfully and without right pulls down Wilfully 
 or removes any portion of a stone wall or fence which is erected or removin 8 stone 
 maintained for the purpose of enclosing land shall be punished by a 
 fine of not more than ten dollars." 
 
 statutory 
 provisions. 
 
68 
 
 THE LAW OF THE ROADSIDE 
 
 (And as supplemented by Acts of 1911, Chapter 173): — 
 
 Wilfully cutting 
 down or 
 
 removing timber 
 or removing 
 other property. 
 
 Wilfully injuring 
 property of 
 another. 
 
 "The commissioners on fisheries and game and their duly au- 
 thorized deputies may arrest without a warrant any person found 
 in the act of wilfully pulling down a stone wall or fence, or otherwise 
 violating the provisions of section ninety-one of chapter two hundred 
 and eight of the Revised Laws." 
 
 "Section 99. Whoever wilfully cuts down or destroys timber 
 or wood standing or growing on the land of another, or carries away 
 any kind of timber or wood cut down or lying on such land, or digs 
 up or carries away stone, ore, gravel, clay, sand, turf or mould from 
 such land, or roots, nuts, berries, grapes or fruit of any kind or any 
 plant there being, or cuts down or carries away sedge, grass, hay or 
 any kind of corn, standing, growing or being on such land, or cuts 
 or takes therefrom any ferns, flowers or shrubs, or carries away 
 from a wharf or landing place any goods in which he has no interest 
 or property, without the license of the owner thereof, shall be pun- 
 ished by imprisonment for not more than six months or by a fine of 
 not more than five hundred dollars, and if the offence is committed 
 on the Lord's day or in disguise or secretly in the night time the im- 
 prisonment shall not be less than five days nor the fine less than five 
 dollars. 
 
 "Section 100. Whoever wilfully and maliciously or wantonly 
 cuts down, destroys or injures a tree which is not his own, standing 
 for any useful purpose, or whoever wilfully and maliciously or wan- 
 tonly breaks glass in a building which is not his own, or whoever wil- 
 fully and maliciously breaks down, injures, mars or defaces a fence 
 belonging to or enclosing land which is not his own, or wilfully and 
 maliciously throws down or opens a gate, bars or fence, and leaves 
 the same down or open, or maliciously and injuriously severs from 
 the freehold of another any produce thereof or anything attached 
 thereto, shall be punished by imprisonment for not more than six 
 months or by a fine of not more than five hundred dollars." 
 
 "Section 105. Whoever wilfully and maliciously enters an 
 orchard, nursery, garden or cranberry meadow, and takes away, 
 mutilates or destroys a tree, shrub or vine or steals, takes and carries. 
 
TRESPASS 
 
 69 
 
 away any fruit or flower, without the consent of the owner thereof, 
 shall be punished by a fine of not more than five hundred dollars 
 or by imprisonment for not more than six months. 
 
 "Section 106. Whoever wilfully, intentionally and without 
 right enters upon the orchard, garden or other improved land of an- 
 other, with intent to cut, take, carry away, destroy or injure the 
 trees, grain, grass, hay, fruit, or vegetables there growing or being, 
 shall be punished by, imprisonment for not more than six months 
 or by a fine of not more than five hundred dollars; and if the offence 
 is committed on the Lord's day, or in disguise, or secretly in the night 
 time, the imprisonment shall not be less than five days nor the fine 
 less than five dollars. 
 
 "Section 107. Whoever, having the charge or custody of sheep, 
 goats, cattle, horses, swine or fowl, wilfully suffers or permits them 
 to enter on, pass over or remain on any orchard, garden, mowing 
 land or other improved or enclosed land of another, after being for- 
 bidden in writing or by notice posted thereon by the owner or occu- 
 pant thereof, or by the authorized agent of such owner or occupant, 
 shall be punished by a fine of not more than ten dollars." 
 
 "Section 115. Whoever paints, or puts upon, or in any manner 
 affixes to, any fence, structure, pole, rock or other object which is the 
 property of another, whether within or without the limits of the 
 highway, any words, device, trademark, advertisement or notice 
 which is not required by law to be posted thereon, without first 
 obtaining the written consent of the owner or tenant of such property, 
 shall, upon complaint of such owner, or of his tenant, or of any muni- 
 cipal or public officer, be punished by a fine of not more than ten dol- 
 lars. Any word, device, trade mark, advertisement or notice which 
 has been painted, put up or affixed within- the limits of a highway 
 in violation of the provisions of this section shall be considered a 
 public nuisance, and may be forthwith removed or obliterated and 
 abated by any person. 
 
 "Section 116. Whoever wilfully and maliciously destroys or 
 injures the personal property of another in any manner or by any 
 means not particularly described or mentioned in this chapter shall 
 be punished by imprisonment in the state prison for not more than 
 
 Cutting trees or 
 injury to crops. 
 
 Stray cattle. 
 
 Painting or 
 
 attaching 
 
 advertisements 
 
 without 
 
 permission. 
 
 Destruction of 
 property. 
 
Lord's day. 
 
 70 THE LAW OF THE ROADSIDE 
 
 five years or by a fine of not more than one thousand dollars and 
 imprisonment in jail for not more than one year; but if the value 
 of the property so destroyed or injured is not alleged to exceed 
 fifteen dollars, the punishment shall be by a fine of not more than 
 fifteen dollars or by imprisonment for not more than thirty days." 
 Malicious "Section 121. Whoever is discovered in the act of wilfully in- 
 
 mischief on juring a fruit or forest tree or of committing any kind of malicious 
 mischief on the Lord's day may be arrested without a warrant by 
 a sheriff, deputy sheriff, constable, watchman, police officer or other 
 person, and detained in jail or otherwise until a complaint can be 
 made against him for the offence, and he be taken upon a warrant 
 issued upon such complaint; but such detention without warrant 
 shall not continue more than twenty-four hours." 
 
 Copies of the more important parts of the above sec- 
 tions suitable to be affixed to trees or otherwise posted 
 in the open air may be obtained without charge from the 
 secretary of the State Board of Agriculture. Acts of 
 1904, Chap. 444, Sees. 2 and 3. 
 
 Section 115 is notoriously disregarded, to the great 
 disfigurement of our landscape. 
 
 See also various sections cited in Chapter II. of this 
 pamphlet, more especially applicable to the roadside. 
 
 Acts of 1904, Chapter 305, is as follows: — 
 
 "Whoever wantonly destroys or injures the personal property of 
 another in any manner or by any means not particularly described 
 or mentioned in chapter two hundred and eight of the Revised Laws 
 shall be punished by a fine of not more than five hundred dollars or 
 by imprisonment for not more than one year; but if the value of 
 the property so destroyed or injured is not alleged to exceed fifteen 
 dollars the punishment shall be a fine of not more than fifteen dollars 
 or imprisonment for not more than thirty days." 
 
TRESPASS 71 
 
 Closely connected with this subject are certain pro- Fires, 
 visions of law relating to fires. 
 
 Revised Laws, Chapter 208, Sections 1 to 4, impose 
 severe penalties for wilfully and maliciously setting fires 
 to buildings of various kinds, and Section 5 imposes lesser 
 penalties for "wilfully and maliciously" burning or de- 
 stroying timber, lumber, and other products, fences and 
 standing trees, grain and grass. 
 
 Section 7 covers the case of "wantonly or recklessly" 
 setting fire to trees, and Section 8 that of "wilfully or 
 negligently" setting a fire on the land of another, or per- 
 mitting a fire on one's own land to extend to the land 
 of another whereby his property is injured. 
 
 Section 9 is as follows: — 
 
 "Whoever in a town which accepts the provisions of this section or Setting fires on 
 has accepted the corresponding provisions of earlier laws sets a fire on another ' s land - 
 land which is not owned or controlled by him and before leaving the 
 same neglects to entirely extinguish such fire, or whoever wilfully or 
 negligently sets a fire on land which is not owned or controlled by 
 him whereby property is endangered or injured, or whoever wilfully 
 or negligently suffers a fire upon his own land to escape beyond the 
 limits thereof to the injury of another, shall be punished by a fine 
 of not more than one hundred dollars, or by imprisonment in jail 
 for not more than one month, or by both such fine and imprison- 
 ment; and shall also be liable for all damages caused thereby. Such 
 fine shall be equally divided between the complainant and the town." 
 
 The following statute goes further, and applies not 
 only to trespassers, but also to land owners setting fires 
 on their own premises, in cities and in such towns as 
 have voted to adopt its provisions. 
 
72 
 
 THE LAW OF THE ROADSIDE 
 
 Acts of 1908, Chapter 209: 
 
 Setting fires 
 between 
 March i and 
 December i. 
 
 "Section i. It shall be unlawful within any city, or within any 
 town which accepts the provisions of this act, for any person to set 
 a fire in the open air between the first day of March and the first 
 day of December except by the written permission of the forest 
 warden, or the chief of the fire department or, in cities that have such 
 an official, the fire commissioner; provided, that debris from fields, 
 gardens and orchards, or leaves and rubbish from yards may be 
 burned on ploughed fields by the owners thereof, their agents or 
 lessees; and provided, further, that persons above eighteen years 
 of age may maintain a fire for a reasonable purpose upon sandy or 
 barren land, if the fire is enclosed within rocks, metal or other non- 
 inflammable material. In every case such fire shall be at least two 
 hundred feet distant from any forest or sprout lands, and at least 
 fifty feet distant from any building, and shall be properly attended 
 until it is extinguished. The forest warden shall cause public 
 notice to be given of the provisions of this section, and shall enforce 
 the same. Whoever violates the provisions of this section shall be 
 punished by a fine of not more than one hundred dollars, or by 
 imprisonment for not more than one month, or by both such fine 
 and imprisonment. As amended Acts of 1911, Chap. 244, Sec. 1. 
 
 "Section 2. The provisions of the preceding section shall not 
 apply to fires which may be set in accordance with regulations and 
 methods approved by the superintendent for suppressing the gypsy 
 and brown tail moths." 
 
 "Section 4. The state forester and forest warden, or any duly 
 authorized assistant in the employ of the state forester, or any duly 
 appointed deputy forest warden, may arrest without a warrant any 
 persons found in the act of setting or maintaining a fire in violation 
 of the provisions of this act. " As amended Acts of 191 1, Chap. 244, 
 Sec. 2. 
 
 In towns where it has been accepted, this statute takes 
 the place of Revised Laws, Chapter 32, Section 24, which 
 
TRESPASS 73 
 
 forbade open-air fires between April i and October i with- 
 out similar permission, in towns which had accepted its 
 provisions. The 1908 statute has been accepted in more 
 than two-thirds of the towns in the State. It may be 
 submitted to the voters of any of the remaining towns 
 by the selectmen at any town meeting. Whether it is 
 in force in a particular town may be ascertained by 
 applying to the town clerk. 
 
 Acts of 1907, Chapter 299, authorizes the fish and game 
 commissioners and their deputies to arrest without a 
 warrant any person found in the act of unlawfully setting 
 a fire. 
 
 There is also a special statute applicable only to the Special law 
 counties of Barnstable and Plymouth (Acts of 1910, ^ litabler ° 
 
 ■' v y ' Plymouth and 
 
 Chap. 478), enacted with a view to lessening the danger Barnstable 
 of fire, which makes it unlawful for any unnaturalized, counties - 
 foreign-born person to pick wild berries or flowers, or to 
 camp or picnic upon any land of which he is not the 
 owner, between April 1 and December 1, without written 
 permission of the owner. Failure to produce such written 
 permit on demand of an officer or forest warden is prima 
 facie evidence of a violation of the act, and authorizes 
 the arrest of the trespasser without a warrant. A penalty 
 of fine or imprisonment is provided for. 
 
 Section 2. CIVIL TRESPASS. 
 
 "The gist of an action for trespass to land consists in the wrongful 
 entry upon it, and so in interfering with the owner's (or tenant's) 
 right of entire possession. Any entry upon land in the rightful pos- 
 session of another, without license or permission, is a breach of duty 
 
74 THE LAW OF THE ROADSIDE 
 
 
 What constitutes to the possessor; and this too though the land be unenclosed. It 
 a civil trespass. f n ows that an action is maintainable for such an entry, though it 
 be attended with no damage to the possessor. For example: The 
 defendant without permission enters upon unenclosed land in the 
 lawful possession of the plaintiff, with a surveyor and chain carriers, 
 and actually surveys part of it, but without doing any damage. 
 The act is a breach of duty to the plaintiff, and the defendant is 
 liable at least to nominal damages." 
 
 "A close is deemed to have been broken and entered even though 
 the act was not in fact committed within it, but only against its 
 bounds. To bring anything against such bounds without permission 
 is a trespass. For example: The defendant, without permission, 
 drives nails into the outer walls of the plaintiff's building, which 
 stands upon the line of the plaintiff's premises. This is a breach of 
 duty for which the defendant is liable in damages. Again: The 
 defendant heaps up dirt close to the plaintiff's boundary wall, and 
 the dirt, of itself, falls against the wall. This is a trespass." See 
 Bigelow on Torts, 8th Edition, pages 378, 379. 
 
 See, further, Revised Laws, Chapter 185, Sections 7, 8: 
 
 Statutes creating "Section 7. A person who without license wilfully cuts down, 
 civil liability. carries away, girdles or otherwise destroys any trees, timber, wood 
 or underwood on the land of another shall be liable to the owner in 
 an action of tort for three times the amount of the damages assessed 
 therefor; but if it is found that the defendant had good reason to 
 believe that the land on which the trespass was committed was his 
 own or that he was otherwise lawfully authorized to do the acts 
 complained of, he shall be liable for single damages only. 
 
 "Section 8. A trespasser, if the trespass was casual and involun- 
 tary, may, before an action is commenced, tender the damages and, 
 upon action brought, disclaim title and allege the tender and that 
 the trespass was casual and involuntary; and if it is found that the 
 allegations are true and if he has deposited with the court the amount 
 of his tender at the time of filing his answer and the damages assessed 
 
TRESPASS 75 
 
 are not more than the amount tendered, he shall recover his costs. 
 Such tender may, subject to the same provisions, be made after the 
 action has been commenced with like effect, if it covers the costs to 
 the time of tender." 
 
 Section 7 above quoted is an excellent remedy to apply 
 in the case of injury done by the employees of electric 
 companies to trees standing along the highways. Single 
 damages estimated in dollars would hardly pay for a suit 
 in most cases. But the triple damages which are recover- 
 able under this statute might well pay for the vexation 
 and trouble of the litigation, and, what is vastly more 
 important, would have the effect of preventing further 
 trouble. It was formerly not unusual for the companies 
 to do much damage to trees along their lines, but fortu- 
 nately in most localities at least they are now careful to 
 comply with the laws. 
 
 As in the previous section relating to criminal trespass, Railroads, fires, 
 so in this section on civil trespass, there are certain statu- 
 tory provisions about fires which seem to come within the 
 general scope of our discussion. 
 
 Acts of 1906, Chapter 463, Part II., Section 247, is as 
 follows : — 
 
 "Section 247. Every railroad corporation shall be liable in 
 damages to a person or corporation whose buildings or other prop- 
 erty may be injured by fire communicated by its locomotive engines, 
 and shall have an insurable interest in the property upon its route 
 for which it may be so held liable, and may procure insurance thereon 
 in its own behalf. If it is held liable in damages, it shall be entitled 
 to the benefit of any insurance effected upon such property by the 
 owner thereof, less the cost of premium and the expense of recovery. 
 
76 
 
 THE LAW OF THE ROADSIDE 
 
 Railroads to 
 maintain spark 
 arresters and 
 keep locations 
 clear. 
 
 Railroads may 
 clear adjoining 
 private property. 
 
 The money received as insurance shall be deducted from the dam- 
 ages, if recovered before they are assessed; and if not so recovered, 
 the policy of insurance shall be assigned to the corporation which 
 is held liable in damages, and may maintain an action thereon." 
 
 This statute has the effect of making the railroad 
 company liable irrespective of negligence on its part, 
 provided the land owner can prove that fire was communi- 
 cated to his property by the locomotive engines of the 
 company. 
 
 Attention may be called in this connection to Acts of 
 1907, Chapter 431, which requires railroad companies to 
 maintain spark arresters on its engines, and between 
 April 1 and December 1 to keep its locations clear of 
 dead leaves and other inflammable material. Due 
 enforcement of these requirements may obviate the 
 necessity of a suit for damages at a later time. Probably 
 the most effective way to secure their enforcement is 
 by applying to the Railroad Commissioners. This act 
 further authorizes railroad companies to enter upon 
 unimproved land adjoining their locations for the pur- 
 pose of clearing such land of dead leaves, grass, and wood 
 to a distance of one hundred feet from the tracks, at their 
 own expense and subject to the direction of the forest 
 warden, without becoming liable for trespass. The com- 
 pany must, however, before so doing, give notice to the 
 owner and occupant of the land and to the forest warden 
 in accordance with the provisions of Section 2 of this 
 statute. 
 
 The statute also requires employees of railroad com- 
 
TRESPASS 77 
 
 panies on discovering fires to make certain efforts to 
 extinguish them. 
 
 Acts of 1909, Chapter 394, permits cities and towns to 
 recover from railroad companies the reasonable expense 
 of extinguishing fires due to their negligence. 
 
 Note. — In addition to the laws relating to fires which have seemed 
 to be within the scope of this pamphlet, there are various other en- 
 actments with regard to the powers and duties of cities and towns, 
 of the State Forester and of the town forest wardens, for the preven- 
 tion and extinguishment of fires, which may be found, together with 
 other statutes relating to forestry, in a pamphlet issued by the 
 State Forester. 
 
 Section 3. WHAT ARE THE BOUNDARIES OF THE 
 PUBLIC WAY? 
 
 In determining whether or not a trespass has been 
 committed for the redress of which any of the above 
 remedies may be invoked, as well as in determining what 
 the rights of different parties may be in connection with 
 some of the other subjects treated in this pamphlet, it 
 may often become important to ascertain what are the 
 exact boundaries of the public way. 
 
 The authorities who are charged with the duty of laying Bounds of way 
 out ways have long been required to cause a description to e recor e 
 of the location and bounds of every way, when laid out 
 or altered, to be recorded by the town clerk in a book 
 kept for that purpose. Revised Laws, Chap. 48, Sees. 8, 
 81. They are required by a more recent statute, enacted 
 in 1898, when land is taken or purchased for highway 
 purposes to cause a description and plan thereof to be 
 
78 
 
 THE LAW OF THE ROADSIDE 
 
 recorded in the Registry of Deeds. Revised Laws, Chap. 
 48, Sec. 97. They are also required by a statute of long 
 standing to erect permanent bounds at the termini and 
 angles of all ways laid out by them. Revised Laws, Chap. 
 48, Sec. 104. This latter provision applies only to the 
 laying out and not to the relocation or widening of ways 
 (Harvey v. Inhabitants of Easton, 189 Mass. 505). 
 
 These records, then, in the offices of the town clerks 
 or in the Registries of Deeds, and the monuments, gener- 
 ally in the form of substantial stone bounds, constitute 
 the usual data for determining the exact boundaries of 
 the public way, and should prove sufficient in the case 
 Ancient ways, of ways recently laid out. In the case of ancient ways, 
 however, both records and monuments may be lacking 
 or insufficient. Such cases are provided for by the fol- 
 lowing statute, Revised Laws, Chapter 53, Section 1: — 
 
 "Section i. If buildings or fences have been erected and con- 
 tinued for more than twenty years, fronting upon or against a high- 
 way, town way, private way, training-field, burying-place, landing- 
 place, street, lane or alley, or other land appropriated for the gen- 
 eral use or convenience of the inhabitants of the commonwealth, or 
 of a county, city, town or parish, and from the length of time or 
 otherwise the boundaries thereof are not known and cannot be made 
 certain by the records or by monuments, such buildings or fences 
 shall be taken to be the true boundaries thereof. If boundaries of 
 such ways or places can be made certain any building or fence 
 thereon may upon the presentment of a grand jury be removed as 
 a nuisance unless it has continued at least forty years." 
 
 The effect of the first part of this provision is that build- 
 ings or fences which have fronted on or against the way 
 
TRESPASS 79 
 
 shall be taken to be the true boundaries only if it is shown 
 that the true boundaries are unknown and cannot be 
 made certain. It is not enough that no evidence of the 
 true boundaries is offered. Home v. Haverhill, no Mass. 
 527, 528. 
 
 Whether a fence more or less near a way is to be con- 
 sidered as within this provision is a question for the jury 
 to decide. Sprague v. Wait, 17 Pick. 309, 318. 
 
 By the last clause, on the other hand, the maintenance 
 of a fence or building within the limits of the way for 
 forty years under a claim of right, gives to the abutting 
 owner as against the public an absolute right to main- 
 tain it there. Gifford v. Westport, 190 Mass. 323. 
 
 With regard to State highways there is a special stat- state highways, 
 utory provision as follows, Revised Laws, Chapter 47, 
 Section 20: — 
 
 "Section 20. No length of possession, or occupancy of land 
 within the limits of a state highway, by an owner or occupant of 
 adjoining land shall give him any title thereto, and any fences, 
 buildings or other obstructions encroaching upon a slate highway 
 shall, upon written notice by said commission, be forthwith removed 
 by the owner or occupant of adjoining land, and if not so removed, 
 said commission may cause the same to be removed upon said 
 adjoining land." 
 
 In view of this section, of course no absolute right 
 can be now obtained by maintaining a fence or building 
 for forty years within the limits of what is now a State 
 highway, but, if such fence or building could be shown 
 to have been maintained for the full period of forty 
 
80 THE LAW OF THE ROADSIDE 
 
 years before the passage of this statute in 1893, or before 
 the way in question became a State highway, even though 
 that should be much more recently than 1893, it would 
 seem that an absolute right would have been obtained 
 which the statute would not affect. Nor does this pro- 
 vision appear to have any application to the first part 
 of Section 1 of Chapter 47 above quoted, so that even 
 in the case of a State highway, if the true boundaries 
 cannot be otherwise determined, fences or buildings 
 maintained as above stated for twenty years will be 
 presumed to mark the boundaries. 
 
 
INDEX 
 
 Mass 
 
 Acts of the Legislature. (See Statutes.) 
 Advertising Signs: 
 
 penalty for placing on trees in public places 
 
 display of, near parks, regulation of . 
 
 when statutes regarding unconstitutional . 
 
 penalty for placing on property of another 
 
 within limits of highway, a nuisance . 
 Aldermen. (See Selectmen and Mayor and Aldermen.) 
 Brown Tail Moths. (See Insect Pests.) 
 Cases Cited: 
 
 Aldworth v. Lynn, 153 Mass. 53 . 
 
 Boston v. Richardson, 13 Allen, 146, 154 
 
 Boston El. Light Co. v. Boston Terminal Co., 1 
 566 
 
 Chase v. Lowell, 149 Mass. 85 
 
 Chase v. Lowell, 151 Mass. 422 . 
 
 Commonwealth v. Byard, 200 Mass. 175 
 
 Commonwealth v. Boston, 97 Mass. 555 
 
 Commonwealth v. Boston Advertising Co., 188 Mass 
 
 Eustis v. Milton St. Ry. Co., 183 Mass. 586 
 
 Gilford v. Westport, 190 Mass. 323 
 
 Harvey v. Inhabs. of Easton, 189 Mass. 505 
 
 Home v. Haverhill, no Mass. 527, 528 
 
 N. E. Tel. & Tel. Co. v. Boston Terminal Co., 182 Mass 
 
 397 
 
 Opinion of Atty.-Gen. (Mass.), Annual Rep. 1906, 54 
 Pensacola Tel. Co. v. Western Union Tel. Co., 96 U 
 Perley v. Chandler, 6 Mass. 454 .... 
 Pierce v. Drew, 136 Mass. 75 
 
 348 
 
 S. 
 
 20, 26, 
 
 53 
 54 
 55 
 69 
 69 
 
 37 
 4i 
 
 18 
 5i 
 
 52 
 44 
 20 
 
 55 
 19 
 79 
 78 
 79 
 
 18 
 13 
 19 
 42 
 34. 35 
 
82 INDEX 
 
 PAGE 
 
 Cases Cited: (Continued.) 
 
 Richmond v. So. Bell. Tel. Co., 174 U. S. 761 19 
 
 39 
 79 
 
 Riley v. N. E. Tel. & Tel. Co., 184 Mass. 150 . 
 
 Sprague v. Wait, 17 Pick. 309, 318 
 
 Sub. Light & Pow. Co. v. Boston, 153 Mass. 200 
 
 Tucker v. Eldred, 6 R. I. 404 42 
 
 White v. Godfrey, 97 Mass. 472 51 
 
 Young v. Yarmouth, 9 Gray, 386 .... 20, 26, 38, 39 
 
 Cities. (See Towns and Cities.) 
 
 Constables. (See Watchmen.) 
 
 Damages: 
 
 owner of land abutting on highway on which electric line 
 
 is run, entitled to 34 
 
 appeal may be had to jury to assess 36 
 
 triple damages from electric companies, when ... 38 
 
 for injury from poles in highway 38 
 
 may be had for retention of tree in State highway . 49 
 
 may be had for trespass to land 74 
 
 triple damages for wilful injury to trees .... 74 
 may be had for fires set by railroads 75 
 
 Easement: 
 
 location not obtainable by prescription . , . . 15 
 
 to maintain fences, etc., on highways 78 
 
 not to maintain fences, etc., on State highways . . 79 
 
 Electric Companies: 
 
 term, how used 10 
 
 locations 10 
 
 (See also Location.) 
 
 Electric Light Companies: 
 
 what laws applicable to 9 
 
 (See also Electric Companies, Telegraph Companies, Mu- 
 nicipal Lighting Plants.) 
 
 Electric Railroad Companies: 
 
 to what extent treated herein 9, 10 
 
 certain laws applicable to 9 
 
 (See also Telegraph Companies.) 
 
INDEX 83 
 
 PAGE 
 
 Fires: 
 
 penalty for setting of, on property of another . . . 71 
 regulations regarding setting of open-air fires . . 72 
 
 damages for fires set by railroads 75 
 
 railroads may insure against 75 
 
 railroads must take precautions against .... 76 
 
 railroads may clear adjoining private property to guard 
 
 against 76 
 
 railroads must extinguish 76 
 
 Forester: 
 
 office of town forester abolished 47 
 
 (See also State Forester, Tree Warden.) 
 
 Gas and Electric Light Commissioners: 
 
 must approve locations in certain cases . . . .11,12 
 appeal to, regarding locations for electric light companies, 1 1 
 may grant locations in certain cases 11,26 
 
 Gypsy Moths. (See Insect Pests.) 
 
 Hearings: 
 
 regarding grant of locations 10,12,14.22 
 
 before alteration of location, company entitled to . . 26 
 
 before removal of trees on highway . -43, 45, 48, 50 
 
 Highways: 
 
 electric lines in 9 
 
 abutting owner usually owner of fee in . . . 13, 41 
 
 reserved spaces in 19 
 
 use of, by electric lines, no additional easement . . 34 
 damage occasioned by use of, by electric lines, to be 
 
 assessed 34, 36 
 
 also damage from alteration of location in, may be 
 
 recovered 35 
 
 must be kept reasonably safe 38 
 
 shade-trees in highways 42-47 
 
 bounds of, to be recorded by town clerk . . . 77, 78 
 plan of, to be recorded in Registry of Deeds . . . 78 
 where monuments must be set up 78 
 
84 INDEX 
 
 PAGE 
 
 Highways: (Continued.) 
 
 when buildings and fences to be taken as the true 
 
 bounds 78 
 
 prescriptive right to maintain fences on . . .78, 79 
 
 (See also Slate Highways.) 
 
 Highway Commission: 
 
 must approve locations on State highways . . . 13 
 
 trees cannot be planted in State highway without 
 
 authority of 48 
 
 power to enforce criminal statute relating to trees . . 54 
 in charge of suppression of insect pests on State 
 
 highways 59 
 
 Highway Surveyors: 
 
 authority over trees in highways 43, 52 
 
 Insect Pests: 
 
 towns may appropriate money for suppression of . 57 
 
 certain municipal officers may enter private lands to 
 
 investigate 57 
 
 penalty for transporting 58 
 
 power of State Forester regarding 58, 60 
 
 power of local superintendent for suppression of 58 
 towns may be compelled to increase expenditures for sup- 
 pression of 59 
 
 private land-owners must suppress 60 
 
 duties of State Nursery Inspector regarding ... 62 
 
 when private land-owners must suppress San Jose scale . 63 
 
 Land-owners, Private: 
 
 to be heard on grant of location io, ia 
 
 of fee in highway, may cut poles, when . . . 13, 15, 20 
 no presumption of grant of easement by, after twenty 
 
 years l S 
 
 may revoke license to erect line 20 
 
 may cut wires over their lands 24 
 
 may prosecute companies unlawfully erecting, and failing 
 
 to mark poles, etc 24 
 
INDEX 85 
 
 PAGE 
 
 Land-owners, Private: (Continued.) 
 
 entitled to damages for lines in highways .... 34-38 
 
 entitled to damages on alteration of location ... 36 
 
 may appeal to jury to assess damages .... 36 
 
 must pay costs of appeal, when 36 
 
 may have poles and wires removed if damages assessed 
 
 are not paid 37 
 
 owner of trees in highway 41 
 
 may have damages for illegal cutting 51 
 
 no redress if petition to remove trees on public highway 
 
 denied 51 
 
 must suppress insect pests 60 
 
 railroads may, after notice, clear land of, adjoining . . 76 
 
 Location for Electric Lines: 
 
 term " location " denned 10 
 
 how obtained 10 
 
 specification of, to be recorded 10, 12 
 
 locations by electric power companies . . . . 10 
 
 when locations may be granted by State Boards . . 12 
 
 map of location to be recorded 12 
 
 locations upon State highways 13 
 
 no right to location by prescription 15 
 
 how far location may be revoked or altered . . . 18, 26 
 
 telegraph companies entitled to, on post roads ... 19 
 
 must not incommode public travel 19 
 
 how obtained over private land 20 
 
 for private lines 20 
 
 may be refused, when 20 
 
 by municipal lighting plant 21 
 
 though properly granted, may be an obstruction of the 
 
 highway 39 
 
 Mayor and Aldermen. 
 
 (See Selectmen and Mayor and Aldermen.) 
 
 Metropolitan Park Commissioners: 
 
 may regulate display of advertisements near parks . 54 
 (See also Park Commissioners.) 
 
86 
 
 INDEX 
 
 Municipal Lighting Plants: 
 
 may be established by towns 
 
 under management of manager of municipal lighting 
 
 subject to laws applicable to private companies 
 
 locations for 
 
 towns liable for injuries caused by operation of 
 Ordinances : 
 
 (See Towns, Selectmen.) 
 Park Commissioners: 
 
 • authority over trees in parks 
 
 cannot cut trees without a hearing .... 
 
 (See also Metropolitan Park Commissioners.) 
 Penalties: 
 
 for affixing poles, etc., to property of another . 
 
 for failing to mark posts, etc., on another's land 
 
 for not insulating poles 
 
 for cutting public shade-trees .... 
 
 for wanton injury to trees 
 
 for wanton injury to public shade-trees 
 
 for affixing advertising signs to public shade-trees 
 
 for displaying advertising signs near parks 
 
 for injury to trees in State highways . 
 
 for not allowing tree warden to inspect premises for insect 
 pests 
 
 for knowingly transporting insect pests 
 
 for town's failure to comply with directions of 
 Forester 
 
 for trespassing on improved land .... 
 
 for trespassing with firearms 
 
 for pulling down stone wall 
 
 for cutting down or removing property of another 
 
 for maliciously injuring property of another 
 
 for cutting trees or injury to crops 
 
 for allowing stray cattle to trespass 
 
 for placing advertisements on property of another 
 
 for malicious destruction of property . 
 
 State 
 
 21 
 21 
 
 22 
 2 2 
 23 
 
 48 
 
 48 
 
 23 
 23 
 31 
 
 45, 56 
 52 
 52 
 53 
 54 
 55 
 
 57 
 
 59 
 64 
 
 65 
 67 
 68 
 68-70 
 69 
 69 
 69 
 69 
 
INDEX 87 
 
 PACE 
 
 Penalties: (Continued.) 
 
 for malicious mischief on Lord's Day 70 
 
 for maliciously setting fires on land of another . . . 71 
 
 for unlawful setting of fires 72 
 
 Poles and Wires: 
 
 if not planted according to location, may be removed . . 13,15 
 
 when lines may be consolidated 16, 27 
 
 over private land without permission, may be removed . 20 
 
 penalties for unlawful erection, etc 23 
 
 affixed to property of another, must be marked . 23 
 
 when wires may be put underground 27 
 
 wires to be insulated in certain cases 29 
 
 untagged wires may be removed 29 
 
 inspector of wires 30 
 
 poles must be insulated 31 
 
 penalty for cutting or injury to 32 
 
 removal of unused poles, etc. 33 
 
 may be removed, if company fails to pay damages . . 37 
 may be defects in highway, though location was properly 
 
 granted 39 
 
 Railroad Commissioners: 
 
 may grant locations in certain cases 11,26 
 
 restrictions on locations require approval of, when . . 12 
 
 Regulation of Electric Lines: 
 
 of electric power companies 10 
 
 by Highway Commission of locations on State highway . 13 
 
 consolidation of wires 16, 27 
 
 by Selectmen or Mayor and Aldermen . . . . 17, 25 
 
 must be reasonable i7> 2 6 
 
 term "regulation" defined 25 
 
 undergrounding wires 27 
 
 certain wires must be insulated 29 
 
 certain wires must be tagged 29 
 
 inspector of wires 3° 
 
 poles must be insulated 3 1 
 
 when company must act to move buildings . . . 32 
 
88 
 
 INDEX 
 
 use of 
 
 Roads 
 
 (See Highways.) 
 San Jose Scale 
 
 (See also Insect Pests.) 
 Selectmen and Mayor and Aldermen: 
 
 may grant locations 
 
 regulation of electric power companies 
 
 may compel new lines to use poles and wires of old 
 
 may make reasonable regulations regarding electric 1 
 
 how far authorized to alter or revoke locations . 
 
 may compel removal of poles to reserved spaces 
 
 may grant locations for private lines . 
 
 manager of municipal lighting under direction of 
 
 may grant locations for municipal lighting plant 
 
 may compel wires to be put underground . 
 
 may remove unused poles 
 
 to assess damages done to abutting land-owners for 
 highway by electric lines 
 
 fee for assessing damages 
 
 may remove lines if company fails to pay damages 
 
 may order removal of trees on highway 
 
 local superintendent for suppression of gypsy moths ap 
 pointed by 
 
 may compel land-owners to suppress insect pests 
 
 may appoint watchmen 
 
 State Forester: 
 
 suppression of insect pests in charge of 
 
 may order increased expenditures by towns 
 
 power in cases of emergency 
 
 may arrest persons unlawfully setting fires 
 State Highways: 
 
 locations upon 
 
 care of trees and bushes on 
 
 suppression of insect pests on .... 
 
 no prescriptive right to maintain fences on 
 
 PACE 
 
 34 
 63 
 
 16 
 
 17, 25 
 
 18, 26 
 iq 
 20 
 21 
 22 
 28 
 33 
 
 34 
 34,36 
 
 37 
 
 43 
 
 58 
 60 
 66 
 
 58 
 5Q 
 60 
 
 72 
 
 13 
 49 
 59 
 79 
 
INDEX 
 
 89 
 
 State Nursery Inspector: 
 
 may enter private land to investigate San Jos6 scale, etc. . 
 
 may order land-owner to suppress San Jose scale . 
 Statutes Cited, Expounded, etc.: 
 
 Statutes of the United States. 
 U. S. Rev. Sts., sec. 5263 — Telegraph Lines 
 23 U. S. Sts. at Large, c. 3 (1884) — Post Routes 
 
 Statutes of the Commonwealth. 
 1885, c. 123, sec. 2 — Forester 
 
 1902, Revised Laws of Massachusetts. 
 
 c. 25, sec. t6 — Extermination by Towns of Insect 
 Pests 
 
 sec. 52 — Private Telegraph Lines . 
 
 sec. 54 — Regulation of Lines by Towns . 
 
 sec. 94 — Police Officers .... 
 c. 26, sec. 2, 6 — Power of Cities Same as Towns 
 c. 28, sec. 4 — Park Commissioners 
 
 c. 31, sec. 2 — Watchmen 
 
 c. 32, sec. 24 — Open-air Fires .... 
 c. 34, sec. 1 — Power of Cities and Towns to manu 
 facture Gas and Electricity . 
 
 sec. 14 — Supply of Light, etc., to Adjoining 
 Places 
 
 sec. 19 — Municipal Light Board 
 
 sec. 20 — Manager of Municipal Lighting 
 
 sec. 28 — Liability for Damage . 
 
 sec. 30 — Application of General Laws . 
 
 sec. 31 — Revocation of Locations . 
 c. 47, sec. 1 — State Highway Commission 
 
 sec. 1 1 — Maintenance of Highways 
 
 sec. 20 — Rights of Adjoining Occupant . 
 
 sec. 21 — Location of Wires 
 c. 48, sec. 28 — Application for Jury to assess Dam- 
 ages caused by Laying out Way, 
 
 62 
 63 
 
 19 
 19 
 
 52 
 
 57 
 
 20 
 
 17, 25 
 
 66 
 
 25 
 
 48 
 67 
 72 
 
 22 
 21 
 21 
 
 23 
 21 
 18 
 
 So 
 48 
 79 
 13,48 
 
 13 
 
 5° 
 
9 o 
 
 INDEX 
 
 Statutes Cited, Expounded, etc.: (Continued.) 
 
 c. 48, sec. 80 — Appeal to Jury .... 
 sec. 85 — Reserved Spaces in Ways . 
 sec. 109 — Petition to Superior Court 
 c. 51, sec. 10 — Trees, etc., obstructing Ways . 
 c. 53, sec. 5 — Removal of Unused Poles . 
 sec. 7 — Shade-trees in Cities . 
 sec. 12— Tree Wardens . 43, 44, 46, 48 
 sec. 13 — Shade-trees in Towns v . 
 sec. 14 — Town Forester .... 
 sec. 15 — Park Commissioners . 
 c. 121, sec. 26 — Right to lay Wires 
 
 sec. 27 — Gas and Electric Light Commis- 
 sioners 
 
 c. 122, sec. 1, 2 — Location of Electric Lines, 
 
 9, 10, 18, 25, 
 sec. 3, 4, 5— Damages . . . .34, 
 sec. 15 — Liability of Company 
 sec. 16-19 — Protection, Marking and Super- 
 vision of Wires 
 sec. 20, 21 — Insulation of Poles 
 sec. 22, 23 — Penalty for not Conforming to 
 
 Law 
 
 sec. 26 — No Easement for Electric Lines 
 
 sec. 27 — Penalties 
 
 sec. 28-30 — When Wires may be cut 
 c. 185, sec. 7, 8 — Damages for Injury to Trees 
 c. 208, sec. 1-5— Malicious Burning of Buildings 
 
 Trees, etc 
 
 sec. 7, 8 — Negligent Burning of Trees, etc 
 
 sec. 91 — Pulling down Stone Wall . 
 
 sec. 99 — Cutting Timber, Grain, etc. 
 
 sec. 100-102 — Malicious Injury to Trees, etc 
 
 sec. 105, 106 — Trespass to Trees and Crops 
 
 sec. 107 — Trespass by Animals 
 
 sec. 108 — Transportation of Injurious Insects, 
 
 PAG« 
 
 36, So 
 19 
 SO 
 
 43,46 
 
 33 
 
 Si 
 
 50, 55 
 
 44, 56 
 
 46 
 
 26,38 
 
 36,37 
 
 39 
 
 28-30 
 31 
 
 23, 24 
 15 
 32 
 32 
 
 38,74 
 
 71 
 7i 
 67 
 67 
 52,67 
 67 
 67 
 58 
 
— INDEX 91 
 
 PAGE 
 
 Statutes Cited, Expounded, etc.: {Continued.) 
 
 c. 208, sec. 109 — Trespass on Enclosed Land . . 64, 67 
 sec. no — Trespass with Firearms . .65, 66 
 sec. in — Defacement of Notice against Tres- 
 passers 65, 66 
 
 sec. 115, 116 — Defacement of Fences, etc., by 
 
 Advertisements . . 54, 55, 67 
 sec. 121 — Malicious Mischief on Lord's Day, 67 
 
 Statutes of the Commonwealth. 
 
 1902, c. 57, sec. 1 — Extermination of Moths 57 
 c. 544, sees. 30, 32 — Penalty for Injury to Trees . 53, 67 
 
 sec. 33 — Penalty for Entering Orchard, etc. 67 
 
 1903, c. 158, sec. 1-3 — Advertisements in Parks . . 54 
 
 1904, c. 305 — Penalty for Injury to Personal Property . 70 
 c. 444, sec. 1 — Cutting Timber, Grain, etc. . . 67 
 
 sec. 2, 3 — Posting Extracts from Trespass 
 
 Laws 70 
 
 1905, c. 279, sec. 1 — Care of Shade-trees .... 49 
 sec. 2 — Affixing Notices to Trees . . . 53 
 sec. 3 — Injury to Shade-trees . . . 55 
 
 c. 381, sec. 1 — Gypsy Moths, etc., made Nuisances, 58 
 sec. 2, 3 — Superintendent .... 58 
 sec. 4-6 — Destruction by Cities and Towns, 
 
 58-60, 62 
 
 sec. 7 — Assessments 61, 62 
 
 sec. 8 — Expenditures 63 
 
 sec. 10 — Repeal of Early Laws . . . 57 
 
 1906, c. 117, sec. 1 — Locations for Electric Lines . 25 
 c. 268, sec. 1-4 — Destruction of Moths by Cities 
 
 and Towns 58-60 
 
 sec. 5 — Assessments 61 
 
 c. 463, Pt. II., sec. 247 — Fires caused by Locomo- 
 tives .... 75 
 
 1907, c. 299 — Duties of Commissioners on Fisheries and 
 Game respecting Forest Fires . 73 
 
92 INDEX 
 
 PACE 
 
 Statutes Cited, Expounded, etc.: (Continued.) 
 
 1907, c. 431, sec. 2 — Precautions by Railroads ... 76 
 c. 475, sec. 10 — Forest Wardens .... 47 
 c. 521, sec. 1, 2 — Suppression of Moths by Towns, 
 
 etc 58, 59 
 
 sec. 3 — Assessments 61 
 
 1908, c. 209, sec. 1, 2, 4— Open-air Fires .... 72 
 c. 233 — Injury to Property by Electric Companies, 32 
 c. 297, sec. 1— Care of Shade-trees .... 49 
 
 sec. 2 — Injury to Shade-trees . . . 55 
 c. 591, sec. 1 — Superintendent for Suppression of 
 
 Gypsy Moths 58 
 
 sec. 2 — Notice to Land-owners to destroy 
 
 Moths 60 
 
 c. 617 — Electric Power Companies . . . .10,11 
 
 1909, c. 263 — State Forester 58 
 
 c. 444 — State Nursery Inspector . . . . 62 
 
 1910, c. 150, sec. 1 — Local Superintendent for Suppres- 
 
 sion of Gypsy Moths .... 58 
 
 c. 321 — Tree Wardens 43, 48 
 
 c. 363, sec. 1 — Trees within Limits of Highways, 45, 47, 51 
 c. 478 — Picking of Berries in Barnstable and 
 
 Plymouth 73 
 
 191 1, c. 173 — Pulling down Stone W r alls .... 67 
 
 c. 244, sec. 1, 2 — Open-air Fires 72 
 
 c. 474 — Suppression of Moths by Towns, etc. . 59 
 
 c. 481 — Locations 12 
 
 c. 509, sec. 1, 2 — Locations ... 9, 10, 18, 26 
 
 sec. 3 — Marking Poles, etc 29 
 
 sec. 5 — Penalty 23 
 
 sec. 6 — Cutting of Wires .... 32 
 sec. 7, 8 — Locations between Towns . . 12, 26 
 Street Railway Companies: 
 
 to what extent treated herein 9, 10 
 
 certain laws applicable to 9 
 
 (See also Telegraph Companies.) 
 
INDEX 
 
 93 
 
 '7 
 
 Streets. (See Highways.) 
 
 Surveyor of Highways. (See Highway Surveyors.) 
 
 Telegraph Companies: 
 
 how a location is obtained 
 
 may be compelled to use poles of old lines . 
 
 reasonable regulation of lines of . 
 
 may construct lines on post roads 
 
 may be compelled to use reserved spaces in ways 
 
 right to location if engaged in interstate commerce 
 
 must not interfere with ordinary travel 
 
 a location may be refused 
 
 lines over private lands 
 
 penalty for attaching wires to property of another 
 
 penalty for not marking certain poles, etc. 
 
 who may make regulations for lines of 
 
 after notice, location may be altered . 
 
 when lines of may be consolidated 
 
 when lines of may be put underground 
 
 must insulate and tag wires in certain cases 
 
 poles must be insulated .... 
 
 entitled to notice when building is to be moved 
 
 must pay owner of land abutting on highway damages in 
 certain cases 
 
 may appeal from damages assessed by selectmen, etc 
 
 must pay costs of appeal, when . 
 
 must pay damages assessed within thirty days 
 
 right to trim shade-trees .... 
 
 company liable to town, when 
 
 liable for injury done by poles, wires, etc. . 
 
 Telephone Companies: 
 
 laws relating to telegraph companies applicable to 
 
 (See also Telegraph Companies.) 
 Towns and Cities: 
 
 private electric lines become property of, when 
 
 may establish municipal lighting plants 
 
 10-12 
 16 
 
 19, 26 
 19 
 19 
 19 
 
 19,38 
 20 
 20 
 23 
 23 
 25 
 26 
 
 27 
 27 
 29 
 31 
 32 
 
 34 
 36 
 36 
 37 
 38 
 39 
 39 
 
94 
 
 INDEX 
 
 Towns and Cities: (Continued.) 
 
 may supply electricity to neighboring town, when 
 liable for injury from maintenance of lighting plant 
 may provide for an inspector of wires .... 
 liable for obstruction of highway by electric lines 
 
 must elect tree warden 
 
 may appropriate money for suppression of insect pests 
 
 reimbursement of 
 
 State Forester may compel expenditure by 
 must suppress insect pests on private land, when 
 
 Trees: 
 
 penalty for wanton injury to 
 
 on private property, overhanging way 
 
 In Public Ways, 
 right of telegraph company to trim 
 owned by adjoining land-owner . 
 power of highway surveyor respecting 
 power of tree warden respecting . 
 
 cutting, planting, etc 
 
 penalty for cutting, etc 
 
 penalty for wanton injury to 
 
 penalty for affixing advertising signs to 
 
 22 
 
 23 
 30 
 39 
 
 42 
 
 57 
 59 
 59 
 61 
 
 52, 74 
 44 
 
 In State Highways, 
 exclusive control vested in Highway Commissioners 
 penalty for injury to 
 
 38 
 41 
 43 
 43 
 43, 46, 50 
 • 45, 56 
 52 
 53 
 
 49 
 
 55 
 
 In Parks, 
 authority over, vested in Park Commissioners . 
 
 Tree Warden: 
 
 how appointed 
 
 authority over trees in highways .... 
 authority over trees in parks may be delegated to 
 power to enforce criminal statutes relating to trees 
 may investigate insect pests on private property 
 
 42 
 43, 44 
 48 
 53 
 57 
 
INDEX 95 
 
 PAGE 
 
 Trespass: 
 
 Civil Trespass. 
 
 when a telegraph pole in highway is 13 
 
 right to remove poles and wires trespassing ... 20 
 
 Criminal Trespass, 
 
 penalty for attaching wires, etc., to property of another . 23 
 
 penalty for criminal trespass 64 
 
 penalty for trespassing with firearms 65 
 
 penalty for pulling down stone wall 67 
 
 penalty for cutting down or removing property of another, 68 
 penalty for maliciously injuring property of another . . 68, 70 
 
 penalty for cutting trees or injury to crops ... 69 
 
 penalty for allowing stray cattle to trespass ... 69 
 
 penalty for setting fires on land of another . . . 71 
 
 special laws relating to Barnstable and Plymouth counties, 73 
 
 United States Statutes. (See Statutes.) 
 
 Watchmen: 
 
 may arrest trespassers without a warrant, when . 66 
 
 term " watchman " defined 66 
 
 appointment of 66 
 
 authority of 67 
 
 Wires. (See Poles and Wires.)