I concur in the opinion of the majority of the court, affirming the judgment of the trial court and refusing the motion for rehearing, but I cannot agree with the views expressed in the majority opinion on the liability of the city of Houston for damages caused appellant's property by removing the trees from the sidewalk in front thereof. The right of the city to use the sidewalk, which is a part of the street, as a location for sewerage pipes or conduits, and, if necessary for this use, to remove the trees growing thereon, is not questioned by the majority; but they hold that the city should be held liable for any damage to appellant's property caused by the loss of the trees. I do not think that the owner of property abutting on a street has, as against the city, any property right in the trees growing in the street, which is protected by article 1, section 17, of our Constitution, cited in the opinion of the majority. In Dillon on Municipal Corporations (5th Ed.) § 1154, that eminent author says:
"But with respect to streets in populous places, the public convenience requires more than the mere right to pass over and upon them. They may need to be graded and brought to a level, and therefore the public or municipal authorities may not only change the surface, but cut down trees, dig up the earth, and may use it in improving the street or elsewhere, and may make culverts, drains, and sewers upon or under the surface. Whether the municipal corporation holds the fee of the street or not, the true doctrine is that the municipal authorities may, under the usual powers given them, do all acts appropriate, or incidental to the beneficial use of the street by the public of which, when not done in an improper and negligent manner, the adjoining fee holder cannot complain."
In section 721 of the same work it is said:
"The title or interest of the abutting owner in the shade trees must yield to the power of the city to grade the street, or to build side-walks, or otherwise improve it. For any injury resulting therefrom, the abutting owner has no redress."
In volume 4, § 2001, McQuillin on Municipal Corporations, it is said:
"The owner may recover damages for the unnecessary injury or destruction of shade trees along the sidewalk, caused by a change of street grade or the construction of a sewer. But where the trees are within the lines of the street or sidewalk on which grading is done, the municipality is not liable to abutting owner, should their destruction become necessary in the proper execution of the work. The question as to whether there is a necessity for the removal of shade trees to make room for the improvement is within the discretion of the municipal authorities, with which the courts will not ordinarily interfere. However, if the city acts capriciously in the matter, when it palpably appears that no public necessity for *Page 990 their removal exists, an injunction will be granted at the instance of the lot owner to prevent their removal."
The distinction between the damage caused abutting property by changing the grade of a street, and thereby making its ingress and egress inconvenient, and thus interfering with and hindering the owner in its use and enjoyment, and that caused by the removal of shade trees growing in the street, seems clear to me. This distinction is clearly pointed out in the case of Webber v. Salt Lake City, 40 Utah, 221, 120 P. 503, 37 L.R.A. (N.S.) 1115. The facts in that case are practically identical with the instant case In discussing the question the Supreme Court of Utah says:
"We confess our inability to understand how the abutting owner, who is a mere licensee of the municipality, in the absence of an express statute, can acquire a property right in trees which he may enforce, as against the municipality, in case it becomes necessary to remove them in making a public improvement in the street, when such improvement is made in a careful and lawful manner. * * * It is contended by counsel, however, that, inasmuch as respondent could and did recover damages which were caused to her property by reason of removing the soil, for the same reason, and upon the same principle, she should be permitted to recover for the removal of the trees. The fallacy of this contention lies in the assumption that respondent recovered for the removal of the soil. The true ground upon which her recovery is based is that in removing the soil her retaining wall was destroyed, and the convenient ingress and egress to and from her property was prevented. In this way there was a substantial interference with the use of her property which reduced the market or salable value thereof. If she is permitted to recover for the removal of the trees growing in the public street, however, then she could do so, although she had in no way been hindered in the use and occupation of her property. In removing the soil, so as to interfere with the use of her property, she suffered a direct and substantial injury. In removing the trees, however, the city only removed that in which respondent had no property right as against the city, and that which in no way interfered with the use of her property, or in having access thereto. No doubt, as against any one who unlawfully interfered with the trees, respondent, as an abutting owner, could recover for any injury she might have sustained. This is so, however, because, as against a wrongdoer, her right as a mere licensee of the city would be quite sufficient to sustain her action. Not so as against the city, because, as against it, she has no rights, so long as the city, in interfering with the trees, acted pursuant to law and in a careful manner. * * * After a careful consideration of the decisions of the courts of last resort and of the constitutional and statutory provisions upon which the decisions rest, we are forced to the conclusion that the respondent is not entitled to recover any damages for the removal of the trees, for the reason that such damages, under the circumstances, are damnum absque injuria."
The provision of the Constitution of Utah prohibiting the taking or damaging of private property for public use without just compensation to the owner is the same as that contained in the Constitution of this state. I know of no decision of our Supreme Court giving a different application of this constitutional provision to the removal by city authorities of trees from a street, when necessary in improving the street, from that made in the opinion above quoted. I think the opinion is sound, and the rule therein announced is the law of this case. *Page 991