Stillwell v New Windsor Corporation: 1932

The Plaintiff owned a house bounded on the west and north by public highways. There were a number of post-adoption trees of which the Plaintiff claimed the property. Having refused to comply with the Defendant’s notice to remove the trees on the ground that they were dangerous and obstructive to traffic, and the Defendants as highway authority having, in consequence of the refusal, themselves removed three of the trees, the Plaintiff brought the action seeking an injunction to restrain the Defendants from removing the remaining trees.
Held: Since the trees which had been cut down were a nuisance to the highway the Defendants had not merely a right but a duty to remove them: as to the remaining trees they were authorised to remove them as being an obstruction to the rights of the public over the entire width of the roads, which was not limited to the use of the carriageways. And further that the trees, as being parts of the ‘streets’ or as produce of the soil thereof, vested under S.149 of the 1875 Act, in and under the control of the highway authority, with the result that the Plaintiff was not in a position to complain.
As to the argument that the trees vested in the Defendants as highway authority under S.149 the Judge said: ‘The argument is that these trees, in the circumstances which I have stated and as I find them to be, are part of the ‘street,’ they are things provided for the purposes of the street, the trees are planted and stand as trees in a street, an amenity of the street, possibly, as marking off the footway from the carriageway, a convenience and a protection to the public; and the argument is that under that section they vest in and are under the control of the urban authority. It is pointed out that, if the trees are injured, compensation for the injury is to be paid by the local authority: that would suggest that the property in the trees would be in the local authority. It is pointed out further that a penalty is put upon persons who without the consent of the local authority wilfully displace the trees; that would seem to imply that displacing the trees with the consent or by arrangement with the urban authority would not be an offence, which again fits in with the suggestion that the effect of this section is to place the control and, in some sense or other, the property in the trees in the local authority. In my view that is the effect of the section as regards such trees as those with which I am here dealing. In my view, for all the purposes of exercising the rights of the highway authority, these trees are to be treated as the highway authority’s trees, and if they think it convenient to remove them it is proper that they should remove them. I am not called upon in this action to decide to whom the timber would belong when the trees were removed.’
Clauson J
[1932] 2 Ch 155
England and Wales
Cited by:
CitedHurst and Another v Hampshire County Council CA 19-Jun-1997
A Local Authority is liable for any damage to adjacent property caused by the roots of a tree growing on the verge of a public highway.
Held: Pre-adoption trees vest in the highway authority for all purposes. . .

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Updated: 06 May 2021; Ref: scu.650699