concurring in conclusion.
I concur in the affirmance, but do not agree to much that is said in the opinion. The petition alleges a wilful and malicious cutting, breaking, and injury of plaintiff’s trees and damage to her property. The answer pleads defendant’s franchise, and that it was necessary to trim the trees in order to carry on its business. The evidence for the plaintiff clearly showed a reckless and wanton mutilation of the trees. This evidence was not contradicted, nor was any proof offered to show that the wholesale cutting was reasonably necessary. The fact of the existence or nonexistence of malice as charged is immaterial. With the issues and proof in this condition, the verdict was justified. The court instructed the jury properly as to the measure of damages, and the general instructions as to the right of plaintiff to recover damages could not, under the proofs in this case, prejudice the defendant. The wires when erected were above and clear of the trees, and the growth of the trees extended the limbs among the wires. Under these circumstances I think the defendant had the right to trim the trees so often and to the extent that was reasonably necessary to exercise its franchise, but that this right should have been exercised in such a manner as to inflict as little injury as possible to the property; that if it neglected for years to trim and thus allowed the growth of large limbs the removal of which would mutilate and damage the trees, it would be liable for such damages to the property rights of the tree owner .as might be thereby occasioned.
*810I am further of opinion, to quote -the language of the opinion in Southern Bell Telephone & Telegraph Co. v. Francis, 109 Ala. 224, 31 L. R. A. 193, that, “if the city or other corporation invested with the right of eminent domain, acting under municipal authority, proceeds to cut or trim trees planted on a sidewalk by the owner of abutting property under lawful authority, when no necessity for such cutting exists, or when the cutting clearly exceeds the necessity, and consequential injury results therefrom to such abutting property, the owner will have Ms appropriate remedy at law to redress the injury.”