The point relied on by the defendant is that he was the owner of the fee, and therefore had the right to cut down the tree. Does the conclusion follow from the premise? The law of 1863 was in force at the time the defendant and those from whom he holds petitioned for the highway and released their damages. Presumptively they knew that, as the law then stood, an adjoining owner had the right to have sidewalks and plant shade trees on the side of the street. The dedication and release are presumed to have been made in view of this right, and coextensive with the use to which such highway might by law be devoted. Griffin v. Martin, 7 Barb. 297; Hardenburgh v. Lockwood, 25 Barb. 9. The setting out of trees along the side of a highway had from time immemorial been recognized as a proper use of a highway. 2 Rev. Laws 1813, p. 279, c. 33, § 29; 2 Rev. St. (8th Ed.) p. 1398, § 127. The right given by the law of 1863 is not, I think, limited to those adjoining owners who own the fee. The language of that act is general, and its plain object would not be attained by limiting its effect to one class of owners. The right to plant shade trees goes with the right to have sidewalks. I am of the opinion that the defendant, although the owner of the fee, had no right to cut down the tree. I, therefore, vote for affirmance.