Vanderhurst v. Tholcke

Van Fleet, J. This action was brought to enjoin the authorities of Salinas city from cutting down or removing as an obstruction and nuisance certain shade trees standing and growing on the sidewalk in front of plaintiff’s premises, within the corporate limits of said municipality.

The material facts found by the court are that plaintiff’s premises (which are on a corner) front on Pajaro and Alisal streets, two regularly established public streets of said city, under the control and management of the authorities thereof, having curbed and graveled sidewalks some twelve feet wide. The trees in question were set out by plaintiff many years since, and have now grown so that their trunks are from two to five feet in diameter, and with a height of about fifty feet, and they stand in a row almost in the center of the sidewalk —fifteen of them on Alisal and ten on Pajaro street. That the city council has ordered the removal of the trees, as presenting an obstruction to public travel and a nuisance, and that defendants and appellants, one of whom is the superintendent of streets of said city, and the other chairman of the street committee of the common council thereof, are threatening to carry said order into execution.

It was further found, upon evidence admitted against the objection of defendants, that the same was immaterial and incompetent, that said trees are of great use and benefit to plaintiff, and beautify and protect his premises; and that they are of public utility and benefit in furnishing shade from the heat of summer, and shelter from wind and storm of winter, etc; and it is found that there is sufficient room and passageway for travel along said walks on each side of said trees. And apparently, as a conclusion and deduction from these last special [150]and probative facts, the court found that the drees are not an obstruction to the use of the said streets or sidewalks, and do not constitute a nuisance.

judgment was entered restraining the removal of the trees, from which and an order refusing a new trial the defendants appeal.

It is contended that the finding that the trees do not constitute an obstruction or nuisance is without competent support, and this is the material question arising, since without the aid of that finding the judgment cannot stand. We are of opinion that this contention must be sustained. Under the charter of Salinas city the common council is given the general care, custody, and control of the streets, with power to lay out, open, alter, vacate, improve, cleanse, and repair the same; to make regulations for protection of the health, safety, order, and cleanliness of the city, and to define, prevent, and remove nuisances. (Charter of Salinas City, Stats. 1875-76, p. 98.)