The plaintiff, a boy of thirteen years, climbed a tree standing within the highway limits of a Concord street in a race with another boy to reach a hornets' nest in the tree. After climbing some distance he stopped to observe the progress of his competitor and while looking downward raised his hand above his head and grasped the defendants' wire, passing through the tree twenty feet above the ground, and received the injury for which suit is brought.
There is no evidence or suggestion that the defendants were not rightfully occupying the place where their wires passed for the transportation *Page 46 transference of electricity by wire. It must therefore be assumed that the location of their poles, the number of their wires and their height above the ground had been fixed by governmental authority. P. S., c. 81, ss. 1, 2. In accepting this location the defendants assumed the burden imposed by section 4 of the same chapter that "no poles, structures, or wires shall be so placed as to interfere with the safe, free and convenient use of any highway for public travel." As this duty is imposed upon the defendants by statute, it is unnecessary to refer to authorities declaring the obligation of those lawfully maintaining in public ways wires for the transmission of electricity to exercise care for the safety of the traveling public. 9 R.C.L. 1205. There was evidence that it was mechanically possible though commercially impracticable to insulate wires carrying the voltage these did through a tree so that one would not be injured by contact with them while climbing the tree. The expense of doing what may be necessary to prevent injury to others is not an absolute answer for failure to do so. Philbin v. Company, 218 Mass. 394, 397. The plaintiff therefore had the right to invoke the judgment of the jury if his injury resulted from the breach of the defendants' duty to him as one of the traveling public. There is no contention that the defendants' wires as maintained on the day of the injury interfered in any way with the ordinary use of the highway for public travel. There was evidence that they were not so maintained as to render vertical travel through the tree in the competitive pursuit of hornets' nests, as the plaintiff was engaged when injured, safe, free or convenient. The plaintiff's injury demonstrates that use of the wires in aid of such pursuit was extremely dangerous. The fundamental question therefore is whether the plaintiff when injured was in the exercise of the public right of travel so as to claim the protection of the duty toward travelers imposed by the statute and the common law. "Travelers . . . have the right to do all acts reasonably incident to `a viatic use of the way.'" What acts are reasonably incident to a proper use of the highway is a question of fact. Lydston v. Company, 75 N.H. 23, 24. If the public right embraces some right in the tree, the question might be for the jury, if it were not held that reasonable men must find that traveling twenty feet in a vertical direction with no purpose of onward progress was not making a viatic use of the way. But the plaintiff as a member of the public had no greater right in the tree than was taken for public use. "As the power of eminent domain is the public power of buying what is necessary for public use, and as a piece of land, including the fee, *Page 47 is not taken by that power when an easement is all the public needs, a highway taken by that power is not a public pasture, but a public way. The grass is a part of the land, and, with the soil and rocks, remains the property of the land-owner, subject to the public right of way." Varney v. Manchester, 58 N.H. 430, 432.
Trees by the roadside unless springing up fortuitously are planted for shade or ornament. Generally they are the property of the adjoining landowner. In the absence of evidence transferring the title out of him, it is to be assumed such trees are his property. In him is vested the right of property and of beneficial enjoyment. The public has no right to the trees or to use them, even if necessarily removed to construct or maintain the way. For any interference with his possession or right of possession in such trees the adjoining owner has his action. Bigelow v. Whitcomb,72 N.H. 473; Baker v. Shepard, 24 N.H. 208. Assuming that climbing trees in sport, utilizing them as a gymnasium provided by nature, is a reasonable use of a tree such use is a part of the beneficial enjoyment of property ownership in the tree which was not taken from the owner by the public. As the public did not take from the owner the potentiality of the tree for use for gymnastic evolutions, the plaintiff as one of the public had not the right to the personal enjoyment of such use. As the evidence discloses no breach of duty to the traveling public, there was no negligence toward the plaintiff as one of the public. The plaintiff shows no other relation to the tree. He did not own the tree or the land on which it stood or the lot adjoining the highway. There was no evidence he was climbing the tree in exercise of the proprietary right of the adjoining owner by his request or express or tacit permission. He had no right in the tree unless his infancy as matter of law gave him the right to go wherever his childish fancies might lead him. This latter proposition appears to be the law in some jurisdictions but is not the rule here. Devost v. Company, 79 N.H. 411. "An electric company, maintaining a dangerous wire through or near a tree is bound to anticipate that persons may lawfully climb the tree, and it is required to exercise due care to prevent injury to such persons from its wire." Curtis, Electricity, s. 512. Understanding by "such persons," persons who "may lawfully climb a tree" this sentence correctly states the law. The later sentence of the section quoted in the plaintiff's brief, "The courts recognize that children are apt to climb trees, and impose upon electric companies the burden of using due care to keep their high tension wires insulated in places where children when climbing a tree will come in contact with them," *Page 48 can be sustained as a statement of law only upon the theory that children have the legal right to climb all trees that they are able to climb. The cases cited by the plaintiff, where upon facts substantially similar to the present recovery has been permitted, all stand upon the conclusion upon one ground or another that the climber was rightfully in the tree. When such is the fact, failure to exercise care in the maintenance of electric wires is evidence of a breach of duty toward the climber, if such use of the tree is reasonably to be anticipated. The cases cited are rested either upon a permissive right from the owner of the tree (Mullen v. Company, 229 Pa. St. 54, 57; s.c. 77 Atl. Rep. 1108);a different view of the public right in the street (Temple v. Company, 89 Miss. 1; Benton v. Public Serv. Com.,165 N.C. 354) from what is here entertained or the rule which was rejected in this state in Frost v. Railroad, 64 N.H. 220. If the manner in which the defendants maintained their wires was a breach of duty owed by them to any who might rightfully climb the tree, such persons would have an action for their injury. See Philbin v. Company, supra; McCrea v. Company,216 Mass. 495. In these cases the parties injured were lawfully engaged in removing moth nests and climbed the trees for that purpose. But the failure of the defendants to use care which might render them liable for injury to those lawfully in proximity to their wires does not create liability as to those there without right. Garland v. Railroad, 76 N.H. 556.
It is argued that if the plaintiff was a trespasser as against the owner of the adjoining lot he was not a trespasser as against the defendants. This argument overlooks the legal location of the defendants' wires through the tree. So much of the public right of way as was reasonably necessary for the defendants' use had been assigned to them. Any unauthorized interference with that right was a wrong against them. If the plaintiff's attempt to use the wire as an aid in climbing had resulted in property loss or other damage to them instead of a personal injury to himself, they would have had an action against him for the damage. Buch v. Company,69 N.H. 257, 261. In Daltry v. Company, 208 Pa. St. 403; s.c. 57 Atl. Rep. 833, the defendants had no possession or right of possession of the premises where their wires caused injury to another trespasser. In Thompson v. Company, 77 N.H. 92, the defendants' pole was in the highway without right, while there was evidence the plaintiff was making a viatic use of the way. Varney v. Manchester, supra; Devost v. Company, supra. Neither case is an authority upon the facts now presented. The defendants as lawful occupants of the tree owed no *Page 49 duty to a trespasser or bare licensee greater than that owed by' the owner of the tree. Cumberland Telegraph c. Co. v. Martin's Adm'r, 116 Ky. 554; s.c. 63 L.R.A. 469; McCaughna v. Company, 129 Mich. 407; s.c. 95 Am. St. Rep. 441; Hector v. Company, 161 Mass. 558; Note, 3 L.R.A. (N. s.) 988. The defendants were not bound to anticipate "chance or casual trespass" on the tree. Garland v. Railroad, supra.
Though there was evidence children played about the tree and had climbed into it, there was no evidence this practice had been brought to the knowledge of the defendants. As to them the case stands upon the general propensity of boys to climb trees. The burden of making safe playgrounds of each of the many trees in the city through which their wires passed which it was possible for boys to climb cannot reasonably be placed upon the defendants merely because of the general propensity of boys to climb. Proof that with knowledge that children or other persons were in the habit of assembling near their wires and that the defendants continued to charge them with electricity without taking precautions for the protection of those whose safety was thereby endangered, might present a case of active intervention which is not disclosed by the evidence now before the court.
As the evidence stands, there was nothing for the jury.
Exception sustained: verdict and judgment for the defendants.
PEASLEE, J., was absent: YOUNG, J., dissented: the others concurred.
After the foregoing opinion was filed the plaintiff moved for a rehearing, and argument upon the motion was invited. WALKER, J., was not present at the argument upon the motion. PARSONS, C.J., and PLUMMER, J., were of opinion that the former result should be affirmed.