#### V. B. MOORE v. CAROLINA POWER AND LIGHT COMPANY.

(Filed 15 October, 1913.)

1. Municipal Corpdrations — Streets and Sidewalks — Raleigh—Title in State — Municipal Control.^

While the title to certain streets in the city of Raleigh was reserved by the State of North Carolina, the control of the city over these streets is the same as in any other cities or towns in the State, and it has the same 'discretionary right to cut down *301or trim up trees bordering the streets for the purpose of govem•ment or management, which can only be restrained in cases of willfulness or oppression.

2. Municipal Corporations — Quasi-public Corporations — Charter

Powers.

A municipal corporation cannot transfer to a (¡"¡¿.«si-public corporation the rights that it exercises by virtue of its municipal character.

3. Same — Injury to Shade Trees — Damages—Injunction.

Where a (¡¿««si-public corporation, authorized by its municipal charier to place its poles and string its wires along the streets of a city, threatens the property rights in the shade trees along the sidewalks of adjoining owners, by cutting or trimming the trees, without affording them compensation, an injunction-will issue irrespective of whether or not the cutting was about to be done unnecessarily, wantonly, or oppressively.

4. Corporations — Shade Trees — Wanton Injury — Punitive Damages.

Punitive damages may be awarded against a corporation. authorized by its charter to place its poles and string its wires along a city street, for wantonness or oppression in cutting shade trees on the sidewalks along its route to the damage of abutting owners.

5. Corporations — Injury to Shade Trees — Measure of Damages — Deterioration of Property.

An abutting owner may recover damages from a (¡««si-public corporation for cutting or trimming shade trees, on the sidewalk in front of his property, done by it for the purpose of stringing its wires, etc., as authorized by its charter, to the extent that his property is thereby depreciated in value.

6. Actions, Form of — Injury to Shade Trees — Condemnation—Measure of Damages.

Forms of action are not now regarded of supreme importance, and the measure of damages for injury to shade trees done by a (¡««si-public corporation in pursuance of its charter powers' is the same, whether the action be brought by the person who has a property right in the trees or by the corporation in condemnation proceedings.

Appeal by plaintiff from Carter, J., at April Term, 1913, of Wake. .

Peele •& Maynard for plaintiff.

James II. Pou for defendant.

*302ClaRK, C. J.

This is an action to recover damages to tbe value of plaintiff’s lot in Raleigh, by cutting limbs from and disfiguring an ornamental shade tree which stood on the sidewalk in front of the plaintiff’s residence. The defendant claimed that it Had a right to cut the limbs out of the way of its wires because necessary for its purposes, without incurring any liability to the owner of the property abutting the sidewalk whereon the tree stood, and further, that the fee simple of the streets, including the sidewalk, was in the State of North Carolina, and hence that the plaintiff had no property rights in the tree.

It is historically true that the mile square upon which the city of Raleigh was originally located and within which limits this tree stood was purchased by the State, and the city, sp far as it is within those limits, was divided into lots and sold, reserving the title to the streets in the State. But so far as it affects this matter, and all matters, except possibly in exceptional cases, the control of the municipality over its‘streets is the same in Raleigh as in all the other cities and towns in the State. The city for the purpose of its government and management can, in its discretion, cut down or trim up the trees bordering the streets, and cannot be restrained unless in eases of willfulness or oppression. Jeffress v. Greenville, 154 N. C., 499; Rosenthal v. Goldsboro, 149 N. C., 128; Tate v. Greensboro, 114 N. C., 392. But, subject to such right of the city government, the abutting owner has an easement or property in the shade trees standing along the sidewalk which the law will protect. Brown v. Electric Co., 138 N. C., 345. The city cannot transfer to any individual or to a gwasi-public corporation for its convenience and profit this superior right, which it can exercise only for the public benefit.

It is also true that the defendant- company is empowered by its charter and by the permission of the city to place its poles’ and wires along the streets for the purpose of carrying the electric light. But it does not follow that therefore it can invade the property rights of the plaintiff in his shade tree without compensation, nor that the plaintiff would not be entitled to an injunction in case the cutting of the tree was *303about to be done unnecessarily or wantonly or oppressively. The defendant is a public-service corporation, or, as it is usually termed, a quasi-public corporation, and can take the property of the plaintiff, but only upon compensation. This is true, even if it had been necessary for the defendant to run its wires through the tree and to cut the limbs, for the defendant cannot invade the property rights of the plaintiff without compensation because convenient or necessary for its benefit to do só.

As a matter of fact, it could not be necessary," because the wires could have been strung above the top of the trees, or could have swerved either side, or could have been placed underground, as is required in many cities, and even in North Carolina in progressive towns like Charlotte, for instance, on ' some of its stréets. The latter, indeed, must ultimately be required everywhere, for the present system of stringing the wires above ground is unsafe for the public, as we have an instance in Haynes v. Gas Co., 114 N. C., 203, where a broken wire hanging- down became charged by contact with a trolley wire, causing the death of a hoy passing by. The overhead wires are very unsightly, are troublesome in cases of fires, and are 'subject to interruption by storms. They are allowed only as a matter of economy on the part of the light company, and not to entitle them to take the property of others as a matter of right.

The plaintiff is entitled to compensation for the injury done him, and if there was wantonness or oppression, or other bad motive, punitive damages might be added. The subject has been so fully discussed and elucidated in Brown v. Electric Co., 138 N. C., 533, that we need not do more than refer to the reasoning and the conclusions reached in that case.

The plaintiff avers that a great inducement to him in buying the premises was the ornamentation' of his ground by this tree and others, and that he spent considerable money in improving and beautifying them. His Honor erred in instructing the jury that the plaintiff was entitled to recover only if the cutting of the limbs had been done in a negligent or unskillful manner. That would add' to the amount of the dam*304ages which he would be entitled to recover. But it is not the measure of his rights, for he is entitled to compensation for the deterioration, if any, in the value of his property, from the trimming or cutting of the tree, however skillfully done, just as he would have been if the tree had been cut down, however skillfully and carefully and even necessarily the tree had been felled. The plaintiff’s property in the tree (subject to the superior right of the city to cut or.remove it for public purposes) and his right to enhance the value of his lot by its improvement) on'which he had spent care and money, entitle him to compensation for the loss which he may have sustained by the act which the defendant has done for its own convenience and ■ advantage.

It was suggested that the defendant might have obtained the right to trim the tree, or even to cut it’down if necessary, under the right of eminent domain, and therefore that the plaintiff could recover damages only in the same method. But forms of action no longer are matters of supreme importance. If the defendant so desires, this may be styled an action to recover damages under the right of eminent domain. The plaintiff’s property rights have been invaded by the defendant for its own benefit, and the plaintiff is entitled to recover compensation therefor, and is not restricted to such damages as may have been caused by the unskillfulness or negligence of the defendant.

Error.

BbowN, J., and Hoxe, J., dissent.