USA > Massachusetts > Middlesex County > Lincoln > Town Report on Lincoln 1891-1898 > Part 26
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There is a saying, that forewarned is forearmed ; and we wish to suggest to all our taxpayers and citizens, that a conservative and economic expenditure of money is the only sure way to secure what we have enjoyed in the past, and what we hope to have in the future, viz., a low tax-rate.
Respectfully submitted,
CHARLES S. SMITH, - Assessors of GEO. M. BAKER, $ Lincoln.
1
62
Report of Highway Surveyor.
The money appropriated by the Town for the repairs of Highways and Bridges the past year has been expended as follows : Highway Surveyor, $340; snow work, $95; scraping roads and picking up stones, and cleaning out gut- ters, $325; repairs on South Great road, $75; road from Wayland to Concord, $50; road from Haynes Corner to Wayland, $270; road from Jones Corner to Weston, $60; Tower road, $50; road past Mr. Cousins', $83 ; Sandy Pond road, $25 ; from depot to Center, $484 ; from corner Sandy Pond road to Mr. Barnes', $495; from Center to Weston, $315; from Center to Lincoln St., Waltham, $195; from East Schoolhouse to Whitney's Corner, $95; from Plain road to Spencer's Corner, $40; Bedford road, $120; Vir- ginia road, $195 ; road from North Great road to Virginia road, $45 ; culverts, railings, and cutting brush beside road, $50; for gravel, $85; stone drag, tools, and repairs on tools, $37 ; one road machine, $235, less $50 for two old ma- chines, $185; broken stone, $30, and for other general repairs, etc., $92.32, making a total of $3,836.32.
The guide boards are in very good condition and in their proper places.
Following will be found a statement of receipts and pay- ments.
DANIEL H. SHERMAN,
Highway Surveyor.
63
RECEIPTS.
Town appropriation,
. $4,000 00
PAYMENTS.
1896.
Feb. 10. G. W. & E. C. Browning,
as per bill, $3 00
Mar. 6.
Hanlon, Roach & Spencer, as per bill,
7 00
16. Frank Dempsey,
6 42
66
17. Wm. Dempsey,
5 84
21. Thomas Coan,
1 15
66
24. Wm. Ryan,
. 6
2 92
.. 27. J. R. Hartwell,
66
25 43
27.
W. J. Conway,
3 71
Apr. 1.
D. H. Sherman,
60
16 92
..
18.
Patrick Craven,
66
17 50
6 6
18.
Edward Ryan,
14 00
. 6
18. J. J. Driscoll,
41 03
May
2.
D. H. Sherman,
66
31 50
. 6
2.
Patrick Craven,
17 50
2. Charles Lunt,
15 75
66
2. John Ryan,
17 50
2.
L. E. Brooks,
11 70
4. Edward Ryan,
6€
15 75
66
6. John Ryan, 2d,
17 50
66
9.
Martin Mannion,
11 56
66
12.
Geo. N. Bean,
28 50
66
19. Buttrick Lumber Co.,
66
10 28
A. S. Brooks,
66
12 00
6 6
23.
Patrick Craven,
7 77
Charles Lunt,
. 6
26 83
66
30.
John J. Malone,
25 08
66
30.
John Ryan,
.6
20 83
30.
Edward Ryan,
25 08
30. Patrick Craven,
18 08
30. J. F. Farrar,
72 37
66
30. D. H. Sherman,
66
190 00
Amount carried forward,
$997 43
20 81
18.
John Ryan,
250 12
2. John J. Malone,
22.
30.
61
Amount brought forward,
$
997 43
June 13. L. E. Brooks, as per bill,
47 49
13. John Ryan,
15 75
20. Patrick Craven,
66
22 75
24. John White,
5 25
25. Roger Sherman,
66
14 40
..
28.
J. T. Calkins,
1 94
Michael Blake,
66
14 00
..
27.
John J. Malone,
15 75
July
1.
D. H. Sherman,
66
231 25
1.
Edward Ryan,
35 00
1.
American Road
Machine Co.,
185 00
66
1.
John Flemming,
66
17 50
،،
2.
W. H. Sherman,
66
213 75
،،
6.
J. F. Farrar,
45 75
66
8.
Patrick Craven,
66
16 00
..
11.
John Ryan,
66
19 25
20.
Charles Lunt,
66
26 45
20.
John O. Alger,
66
16 50
.6
23.
Charles Wright,
66
6 02
Sept. 5. Patrick Craven,
17 50
22.
John Ryan,
..
35 00
66
26.
Geo. B. Cunningham,
19 00
Oct.
3.
Charles Lunt,
..
45 50
3.
Edward Ryan,
66
45 50
66
3.
John Ryan,
66
28 00
6.
3.
Patrick Craven,
66
344 38
..
13.
Patrick Craven,
6 6
11 38
31.
Charles Lunt,
66
34 12
66
31.
John Ryan,
66
34 12
6 .
31.
Edward Ryan,
32 12
66
31.
James Hutton,
66
34 12
31.
Patrick Craven,
66
20 12
31.
D. H. Sherman,
66
327 00
Nov.
7. Frank Dempsey,
14 25
9. Wm. Hosey,
4 47
9. N. F. Cousins,
2 50
2,044 48
Amount carried forward,
.
$3,041 91 ·
3.
James Hutton,
22 75
6.
3. D. H. Sherman,
12 25
10.
James Knox,
10 50
25.
65
Amount brought forward,
$3,041 91 ·
Nov. 14. Patrick Craven, as per bill,
14 87
19. Charles Connors,
8 75
66 19. Matthew Ellsworth, 5 20
66 21. Charles Lunt,
24 50
25. Patrick Craven,
3 50
25. John Ryan,
66
24 50
26. Richard Delhanty,
66
9 62
28. James Hutton,
1 75
30. John Maguire,
66
31 69
66
30.
Edward Ryan,
24 50
66
30.
D. H. Sherman,
191 62
Dec. 4.
Michael Ward,
12 50
12.
W. H. Sherman,
216 13
22.
A. J. Dougherty,
22 00
1897.
Jan.
1.
'T. F. Ham,
.6
3 52
1.
Mass. Broken Stone Co.,
66
30 66
66
1.
J. A. Burgess,
66
13 85
1. Mrs. Mayer,
66
8 65
16.
Kidder Bros.,
66
29 75
16.
John P. Boyce,
14 87
66
16. F. A. Hayden, A. G. Jones,
8 75
23.
Geo. R. Wheeler,
6 29
Feb.
1.
W. H. Sherman,
19 80
1. D. H. Sherman,
47 12
794 41
$3,836 32
Unexpended balance,
$163 68
Having examined the accounts of the Road Commissioner, I find them correct.
W. L. G. PEIRCE, Auditor.
.
.
16. John Boyce,
2 62
1
17 50
66
Report of the State Highway Committee.
RECEIPTS AND EXPENDITURES ON STATE ROAD.
RECEIPTS.
Amount brought forward from 1895,
$5,927 80
1896.
Received from State Treasurer,
6,207 29
American Road Machine Co. 52 49
Town of Arlington,
124 73
Edwin Wheeler, screenings,
9 75
R. F. Wright,
5 00
G. A. Davis,
٤٠
5 50
$12,332 56
EXPENDITURES.
Paid for labor :
L. E. Brooks,
$1,115 69
J. F. Farrar,
391 15
S. H. Pierce,
187 33
Z. G. Smith,
117 00
J. Connors,
8 81
James Giblin,
68 07
John Curry.
9 92
Frank J. Curry,
9 92
I. B. Cook,
42 34
M. McDonald,
1 50
Wm. Connors,
116 58
J. T. Calkins,
54 91
J. L. Calkins,
92 07
Orrin Hodgdon,
86 57
P. Connors,
51 00
Wm. Bowman,
16 50
Wm. Wright,
12 50
Edward Welch,
20 75
Amount carried forward,
. .
$2,402 61
67
Amount brought forward, ·
.
$2,402 61
James Smith,
19 25
John Murphy,
32 24
Daniel Holman,
87 24
Wm. Woods,
45 67
Wm. Collins,
22 50
John Odette,
42 55
James Odette,
87 75
Henry G. Lock,
91 50
Daniel Flynn,
29 74
John J. Malone,
57 49
Richard Joyce,
25 41
Michael Cuff,
78 76
Edward Giblin,
8 08
William Brewster,
10 50
Allan McKinnon,
70 91
William Ryan,
20 25
Norman Davidson,
3 00
Albert Lawrence,
67 24
Richard Delehanty,
29 25
Frank M. Dempsey,
9 00
James Biggins,
17 50
Daniel Cook,
29 42
John Wright,
9 00
David Murrry,
33 25
927 50
3,330 11
Paid for stone :
A. S. Brooks,
$139 01
J. A. Butcher,
244 75
George C. Lynch,
140 83
Charles W. Prescott,
90 34
Martin Nevilles,
36 89
Michael Murphy,
63 80
George N. Bean,
55 65
Martin Bradley,
11 05
John Dee,
221 86
Frank Curry,
115 01
Martin Bulger,
(gravel)
1 60
R. F. Wright,
66
16 05
1,136 74
Amount carried forward, .
·
. $4,466 85
68
Amount brought forward, . $4,466 85
MISCELLANEOUS.
Am. Road Machine Co., crushing stone, $1,444 00
Charles S. Wheeler, tools and repairs, 21 40
Bigelow & Dowse Co., tools, 4 25
Chandler & Farquhar, "
7 32
Buttrick Lumber Co , lumber,
119 24
G. F. Frost, drain pipe,
14 40
James B. Wood, coal,
1 30
Ames Plow Company, tools,
15 23
Fitchburg R. R. Co., freight,
19 95
T. L. Giles, weighing,
50 00
J. L. & H. K. Potter, water-cart (use of),
.37 00
Town of Arlington, roller (use of),
391 50
J. A. Russell, repairs on tools.
11 70
J. A. Burgess,
11 00
Pierce & Winn, coal,
1 13
J. A. Higgins, hardware,
7 45
Acton Granite Co., granite,
58 00
Leary, McAuliff & Co., granite,
44 80
Kidder Brothers, pump and labor,
15 00
2,275 18
Expenditures in 1895,
5,912 73
$12,654 76
Total Expenditures, Expended above Receipts. $322 20
State Highway
SAMUEL H. PIERCE, JOHN F. FARRAR, L. E. BROOKS, Committee.
69
Report of the Committee on Public Improvements.
The Committee on Public Improvements appointed, at the last annual town meeting present the following report.
In their last report, (Town Book 1895-6, page 45) your committee called particular attention to the ravages of the caterpillar and canker-worm, to which, as is well known, Lincoln is subject. The town was informed that the com- mittee has procured a quantity of material used in the pre- vention of this insect pest, and placed it for distribution at actual cost at certain central points ; and, moreover, that they had offered to contribute assistance and instruction to those not skilled in the use of this material. A considerable amount of the material thus referred to was called for, and, more or less effectively used, but your committee regret to say that little progress has yet been made towards the ex- termination of the evil. This is due to the imperfect and partial use of the remedies, and the lack of steady co-oper- ation among those who either actually suffer from the can- ker-worm or are threatened by it. The only way to deal effectively with an insect, as with any other form of pest, is to go at it systematically and persistently ; and to do this, in the case of the canker-worm, it is necessary to employ, during the season of the year when the insect lays its eggs, some experienced person, at the expense of the town, who shall visit the infected neighborhoods, and either directly himself apply the necessary remedies, or give instructions as to how they should be applied, and supervise the work. It may be questioned whether the town is now ready to assume the expense involved in so doing, though it is plain to every observer that the money loss now caused by the ravages of the canker-worm far exceeds the cost of its extermination, if properly managed.
70
At the last annual meeting of the town, the sum of $150 was appropriated and put at the disposal of this committee. A portion of this sum has been used in purchasing shade trees and setting them out along that part of the road be- tween Lincoln and the Fitchburg railroad station, recently constructed. Selected trees have been set out on each side of the road in question, at intervals of 50 feet from each other. The trees, fifty-three in number, are of the follow- ing kinds :- rock-maple, Norway maple and silver-leaf maple, in equal numbers and alternating, fifty trees and three weep- ing willows in the low grounds at the southerly end of the new road. The cost of these trees was sixty cents each, at the Bedford nursery.
A certain amount of wire fence must now be placed along the exterior lines of the roadway, taken by the town, in order to protect a portion of these trees from cattle. The committee would recommend an appropriation for this pur- pose.
Your committee have to call the attention of the town to measures needed for the protection of the shade and orna- mental trees on its public ways. During the past year, and shortly after the last annual town meeting, twenty-three (23) of these trees, mostly chestnuts, varying from ten (10) inches to thirty (30) inches in diameter, were cut down in the immediate vicinity of Sandy Pond, on the road from Lincoln to Concord. All of these stood on the margin of the travelled way, and between it and the walls and fences, which indicated the limit of the public easement. Many of these trees were of the finest and most ornamental character, and had stood prescriptively on the borders of the highway, rendering it, to travellers, one of the most attrac- tive within the limits of Lincoln, or, indeed, in the vicinity of Boston. They appear to have been cut down by the owner of the abutting land, in anticipation of some measure being taken by the town in its corporate capacity to protect and preserve them and other shade trees similarly placed. In the judgment of your committee, this act was done in
71
utter disregard of the rights, as well as the feelings, of the dwellers in Lincoln. For this generation the loss is irrepar- able. Your committee have examined into the law on the subject and have reached the conclusion that, in cutting down the trees in question, the owner of the abutting land exceeded his legal rights and made himself liable for the penalty provided in Section 7 of Chapter 54, of the Public Statutes. Your committee, being merely a general Com- mittee on Public Improvements, has not felt authorized to proceed in the matter ; nor, they regret to say, would pro- ceeding in it, or even collecting the fine, as the result of legal proceedings, restore the trees that have been felled. They are gone, and the consequent disfigurement is no less final than deplorable; but, in calling the attention of the town to the proceeding, the committee have to recommend that immediate steps be taken to prevent a repetition of it in any other possible quarter. As a community, we have surely arrived at that stage of development when it is gener- ally understood, as well as desired, that shade and orna- mental trees, standing by our road-sides, are to be strictly preserved, and holders of abutting land understand the lim- itation of their rights. They are no more justified in wantonly cutting such trees down than they would be in cutting down trees which grow upon the land of another.
Your committee herewith print, as part of the present re- port, an abstract, which has been furnished them by E. Irving Smith, of all existing statutes bearing upon this sub- ject. It is proper. that residents and land-owners should know exactly what those laws are, and the penalties provided in case of their infringement. Your committee would then recommend that, at the annual meeting, the town, by vote, accept the provisions of Chapter 78 of the Acts of 1893.
Your committee further recommend that a tree warden be elected by the town under the provisions of Chapter 190 of the Acts of 1896, who will have full care and control of all public shade trees, within the town. He, and not your committee, will have charge of the expenditure of whatever
72
funds may be appropriated for setting out trees, and upon him will devolve the responsibility of removing any trees which may have died, or which cause inconvenience to trav- ellers. He, too, under the limitations prescribed by the town and the consequent direction of the selectmen, will take charge of such work as may hereafter be undertaken looking to the systematic extermination of insect pests, within the limits of Lincoln, and to the removal from the highways of all trees and shrubs upon which 'such pests naturally breed.
Your committee would recommend the passage of the fol- lowing votes at the coming annual town meeting :
Voted, That the town accept the provisions of Chapter 78 of the Acts of 1893.
Voted, That the town elect a tree warden under the pro- visions of Chapter 190 of the Acts of 1896, to possess the authority and perform the duties therein prescribed.
Voted, That the sum of be and hereby is appropri- ated to be expended under direction of the selectmen in pay- ment for the service of the tree warden, and by said tree warden in the erection of additional fencing for the protec- tion of shade and ornamental trees, for the setting out of such trees, and for other purposes set forth in the report of the Committee on Public Improvements for the last year.
CHARLES FRANCIS ADAMS, - Committee. SAMUEL H. PIERCE,
73
The Law Relating to Trees Standing in Public Ways.
OWNERSHIP.
The general rule is, that whoever owns the land owns the trees which stand upon it. In all cases, therefore, where a city or town owns the fee of the land in a public street, the trees standing thereon are the property of the municipality ;1 but generally the public has only an easement in the streets for purposes of travel, and the title to the land is held by the private owners of the · adjoining estates. In all such cases, and they constitute the great majority, the trees standing in public ways belong to private persons.
Of course, all general rules have qualifications and there are cases in which a city or town may have an interest in trees which stand in the streets upon land the fee of which is held by private persons ; and, on the other hand, a private person may acquire an ownership in trees which stand upon land the fee of which is held by the city or town, or by other private owners provided there is no interference with private rights.
A city or town may acquire a qualified property, in the nature of an easement, in private shade or ornamental trees under the prov sions of section 10 of chapter 54 of the Public Statutes, which prohibits under a penalty a private owner from cutting down an ornamental or a shade tree standing in a public way without first giving notice of his intention to do so to the selectmen, or road commissioners, or mayor. If the town or city authorities desire to retain the tree, they must give notice of such desire to the owner within ten days thereafter ; and in such case the owner is to be awarded damages occasioned by retaining the tree. These pro- visions of law appear to enable the city or town to acquire a right to have an ornamental or a shade tree belonging to a private per- son, but standing in the street, remain where it is as long as it lives ; but if the tree dies, or is blown down, or ceases in any other way to exist as an ornamental or a shade tree, its wood and timber undoubtedly belong to the private owner of the land.
1 McCarthy v. Boston, 135 Mass. 197. 200.
74
The cases where a private person may acquire an ownership in trees standing upon land which belongs to the city or town or upon land belonging to other private persons, arise under the provisions of section 6 of chapter 54 of the Public Statutes, which;make trees, planted by private persons, in pursuance of a license granted by the mayor and alderman, selectmen, road commissioners, or other municipal officers having the charge of the streets, the absolute property of the persons so planting them.1 The granting of a license may be inferred from any acts of the city or town which tend to show an actual license, or authority to plant the trees.2
COMMON LAW REMEDIES FOR INJURIES TO TREES.
For an injury to a tree, the owner, whether a municipality or a private individual, may maintain an action of trespass in the ordinary way. If a tree belongs to a private person, the fact that it stands in a public street does not entitle other persons to injure it unless it interferes with public travel, or its removal is required in the course of repairing the street, in which cases it may be trimmed, or wholly removed, by the proper officers.3 But aside from all such trimming and removal of trees made by the proper authority for the purposes just mentioned, the owner of any tree, whether shade, ornamental, or of some other kind, may recover damages for any injury done to it ; and when a city or town owns a tree it has the same right to recover for injuries done to it.
The special statutes which have been mentioned relate to the public acquiring an interest in private trees, or to private persons acquiring an ownership in trees which stand on public land, or the land of other persons ; but such statutes do not of themselves change any of the common law rights incident to the ownership after it has once been acquired and determined. The common law remedies, however, for injuries done to trees standing in the streets have not been regarded by the legislature as furnishing a sufficient protection against such injuries.
For this reason a mass of statutes has been passed which do not take away any of the common law rights incident to the ownership of trees, so far as injuries to them by unauthorized persons are
1 Gaylord v. King, 142 Mass. 495, 505.
2 Bliss v. Ball, 99 Mass. 597; Gaylord v. King, 142 Mass. 495.
3 McCarthy v. Boston, 135 Mass. 197 ; Makepeace v. Worden, 1 N. H. 16; Tucker v. Eldred, 6. R. I., 404.
75
concerned, but which are intended to impose more severe and more adequate penalties for injuries committed by such persons, and also to place some limitation upon the rights of owners of trees standing in the streets, whether such owners be private per- sons or a municipality. There is also considerable general legis- lation calculated to promote the setting out and the care of trees in public streets. We may, therefore, classify the statutes of this state as follows : (1) statutes relating to special actions and penalties for injuries committed by person not the owners of the trees ; (2) statutes imposing limitations upon the rights of private owners; (3) statutes imposing limitations upon public rights in public trees ; and (4) statutes for promoting the setting out and the care of trees in the streets.
SPECIAL ACTIONS AND PENALTIES FOR INJURIES COMMITTED BY PERSONS NOT THE OWNERS OF THE TREES.
Whoever wantonly injures, defaces, tears or destroy's an orna- mental or shade tree, shrub, or other plant, or fixture of ornament or utility in a street, road, square, court, park, public garden or other enclosure, shall forfeit not less than five, nor more than one hundred dollars, one-half to go to the complainant and the other half to the person upon whose property, or within whose premises the trespass was committed.1
The foregoing statute does not apply to acts done by the owners of trees, whether municipalities or private persons.
If anyone negligently permits a horse or other beast to break down, destroy, or injure a tree, not his own, standing for use or ornament in the highway, or by any other means negligently or wilfully breaks down, defaces or injures any such trees, he shall be subject to an action for damages at the suit of the owner or tenant of the land in front of which the tree stands.2
The peculiarity of the last mentioned statute is that it allows any person in front of whose premises a tree stands, whether he owns the tree or not, to recover damages.
1 Public Statutes, chapter 54, section 7.
2 Public Statutes, chapter 54, section 8.
.
76
LIMITATIONS UPON THE RIGHTS OF PRIVATE
OWNERS.
A private owner of an ornamental or a shade tree which stands in the highway, has no right to cut it down or to remove it without first giving notice of his intention to do so to one of the selectmen, or to the road commissioners, or to the mayor and aldermen. 1 As has been mentioned before, if the authorities desire to retain the tree they must give notice of such desire within ten days there- after. After such notice is given the owner has no right to cut down the tree, but he is allowed damages for the injury which may result to him for not being allowed to do so.
If anyone cuts down or injures an ornamental or a shade tree without giving notice of his intention to do so, or cuts it down or injures it after the city or town has signified its intention to retain it, he is liable to a fine of not less than five nor more than one hundred dollars, which shall accrue to the city or town.2
A special word should be sad about "shade or ornamental trees." The statute which granted to private persons the owner- ship of trees planted by them in the public streets, under a license from the proper municipal officers, was passed in 1856. Trees which have been so planted and are now standing are deemed in law to be "shade trees" and are not to be deemed a nuisance ; again, the General Statutes of 1860 extended the same protection to all shade trees then standing in the public streets ; that is, they should not be regarded as a nuisance, but could only be removed after certain formalities had been complied with. The 'statute of 1860, however, does not give a private person any rights in shade trees which are not standing on his own property, but merely pro- tects such trees when they are standing in the street upon land of which he holds the fee ; therefore, shade trees which have been planted since 1856, under a license, and also shade trees which were standing in 1860, are known to the law, technically, as "shade trees," and were the only "shade trees" known to the law until some comparatively recent statutes.
In 1890 an act was passed, which has been amended somewhat since, that authorized the municipal authorities to bring into the
1 Public Statutes, chapter 54, section 10.
2 Public Statutes, chapter 54. section 11.
77
category of "shade trees" such trees as were properly marked by spikes. 1
This recent legislation authorizes the mayor and aldermen of cities and the selectmen of towns to designate and preserve trees within the limits of the highways, for the purposes of ornament and shade, by driving into them at a point not less than four nor more than six feet from the ground, and on the side toward the centre of the highway, a nail or spike with a head with the letter "M" plainly impressed upon it; and to designate not less than one such tree in every thirty-three feet where such trees are growing and are of a diameter of one inch or more. Whoever wantonly injures, defaces, or destroy's any tree thus designated, or any of the nails or spikes affixed to the trees, forfeits not less than five nor more than one hundred dollars, one-half of which goes to the complainant and the other half to the town.
The ownership of a tree is not changed by marking it with a spike. It simply becomes a "shade tree" with all that that im- plies. It follows, therefore, that the owner has no right to cut down a shade tree which has been thus designated, except under the provisions of section 10 of chapter 54 of the Public Statutes, which has been before cited.
It is not necessary to mark with a spike any ornamental or shade tree which is protected by the statutes of 1856, or by the General Statutes of 1860.2
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