Chesapeake & Potomac Telephone Co. v. Goldsborohgh

Urner, J., delivered the opinion of the Court. It is provided by the Act of 1914, Chapter 824, that the “State Board of Forestry shall, in addition to the powers ⁶⁶⁹ heretofore granted it, have the power to plant trees along' the roadsides, to make all rules and regulations governing their planting, to care for and protect all roadside trees of this State, and to establish one or more State Forest Nurseries for the propagation of trees for such roadside planting.” The Act defines roadside trees to mean “all trees planted by the Forest Wardens, or existing trees three inches or more in diameter measured two feet from the ground that may be growing within the right of way of any public road or between the curb lines and property lines of any street in an incorporated town in this State.” After other provisions, not necessary to be noted, it is enacted that the “State Forester may, in his discretion, * * * plant, care for and protect roadside trees and pay for such work out of any unexpended balance” of the funds appropriated for the purposes of the Act, “provided, however, that no trees shall be planted under the provisions of the foregoing sections without the consent and approval of the owner of the land on which they are planted.” The statute further provides that: “Any person or persons who may desire to cut down or trim any roadside tree shall make application to the State Board of Forestry for a permit. Any person or persons who shall cut down,, trim, mutilate or in any manner injure any roadside tree, except in an emergency as hereinafter provided for, without the permission of the State Board of Forestry, or its duly authorized representative, shall be guilty of a misdemeanor, and upon conviction shall be .punishable by a fine of not less than $5.00 or more than $50.00 for each offense.” There is a provision that for the services of the State Forester “in examining conditions when permits are applied for under” the clause we have quoted, and for “issuing permits, and supervising the work authorized by such permits, he shall be paid by the person or corporation applying for the permit,” and that the rates to be so paid shall be determined by the State Board of Forestry. The bill of complaint in this case was filed by the Chesapeake and Potomac Telephone Company of Baltimore City. ⁶⁷⁰ It alleges that under the powers conferred upon it by law, the company has constructed and now maintains and operates telephone lines consisting of poles and wires, and their necessary fixtures, upon and along the margins of public highways in nearly all the counties, and elsewhere, in the State, but that, as the right thus granted by law could affect only the easement of the public in the highways, it was necessary for the company to acquire by purchase from the owners of the fee in the land occupied by such highways the right and easement to construct and maintain its poles, wires and fixtures in the margins thereof, and the further right to trim •or cut the branches of trees there growing, which were the property of the owners of the fee, in order to keep the branches from coming in contact with the wires, as it would otherwise be impossible for the company to operate its system efficiently, for the reason that such contact results in the current of electricity on the wires being deflected to the ground, whereby the utility of the lines is seriously impaired.

The averment is then made that among the numerous owners ■of the fee in lands lying within the margins of highways, and ■of the trees growing thereon, from whom the company had purchased the necessary rights and easements previously specified, were certain designated residents of Montgomery County, whose deeds granting such privileges were exhibited with the bill, together with plats showing the sections of highway and the location of the trees to which the deeds refer. The next allegation is, in substance, that the branches of these trees were found to be seriously interfering with the operation of the company’s lines, and it was preparing to trim the branches in the exercise of the right acquired under the grants mentioned, but it was advised thiit the State Board of Forestry claimed the right, by virtue of the Act of 1914, Chapter 824, to require the company to obtain a written permit from the board for the trimming of the trees, and to pay charges, to be by it determined, for the examination of conditions and the supervision of the work. It is averred by the bill that the only property or interest held by the State ⁶⁷¹ of Maryland or Montgomery County in the highways in question is an easement for public travel, and that neither the State nor the county has any right or title to the trees growing in the margin of the highways affected by the deeds exhibited, but that such trees were the property of the respective abutting owners at the time of the execution of the deeds, and the right to trim the trees was thereby vested in the plaintiff company, and that the Act of 1914, in so far as it prohibits the company from exercising its rights with respect to the trees, without first obtaining permission of the State Board of Forestry and paying the charges for examination and supervision by it determined, which would subject the plaintiff to an expense of at least $10,000.00 annually for such work throughout the State, is unconstitutional and void in that it deprives the plaintiff of its property without compensation and without due process of law, within the meaning of the State and Federal Constitutions. It is prayed, therefore, that the Act may be declared invalid on the ground stated, and that the State Board of Forestry, and their officers and agents, may be enjoined from interfering with the plaintiff company in reference to the trimming of the trees referred to, and from requiring any charges to be paid by the plaintiff for the examination of conditions and supervision of such work as contemplated by the statute.

An order was passed by the Court below, upon consideration of the bill, refusing the injunction prayed, and the plaintiff has appealed. It is the evident purpose of the legislation under inquiry to promote the interests of public travel, and to develop and conserve the value of public property, by establishing a system of roadside tree planting and protection for the highways of the State. In providing means and agencies for that purpose, however, the Act does not proceed upon the theory that the public interest in the highway embraces the entire title te the land upon which it is located and that the abutting owners have no rights in the soil thus occupied which are entitled to be considered. On the contrary it is assumed by the ⁶⁷² statute that such rights exist, aucl the intention is plainly indicated that they are not to he disregarded.

The Act goes so far- as to provide that no roadside trees shall be planted under the State’s own authority without the consent of the owner of the land. It may be doubted whether it was necessary for the Legislature to impose this restraint upon the power of the State to improve its thoroughfares for the public benefit in the manner proposed, but the provision gives evidence of a disposition to recognize to their full extent subsisting private interests in the soil of the highways. The requirement of a permit from the State Board of Forestry for the trimming or removal of roadside trees, so far as it affects proprietary rights, is clearly provided as a regulation merely, and not as a possible prohibition, of their exercise. It was undoubtedly designed to prevent any such interference with trees on the public highways by persons acting without interest, but as the context of the law makes it manifest that vested ownership is to be respected, we are not at liberty to construe its provisions as meaning that a permit could be denied to one having a valid right of property in trees growing on the roadside.

When application is made for a permit to cut down or trim such trees, it is contemplated that an examination of conditions may be necessary, and when the permit has been issued, the work is intended to be done under official supervision. If the applicant appears to have the requisite rights in the premises, and the conditions are found to be then suitable for tne performance of the work, consistently with the public interests in the highway, it is the obvious purpose of the statute that the permit shall be granted. The provision that the trimming or removal of the trees shall be done under the supervision of the State Forester is obviously and exclusively