he is injured by the change, or is likely to be. The judgment of ouster against the city is claimed as a naked legal right. Had it been exercised with promptness, after the power was assumed by the city, we do not see why he should not have had his judg. ment. A thought is suggested that the delay was to permit the authorities to act. With the rapid changes made after the passage of the act (the new government being in operation in April, 1890), the tendency, as to results, was manifest; and it was apparent that to avoid great and important changes, involving many and large interests, action should be taken at once. Much less time than was taken was sufficient to apprise the relator that others did not intend to act. The way of inquiry was open to him to know the facts, if he desired to know them, and, in view of the situation, promptness was demanded. We are not unmindful of the fact that the act in question attempts to extend the limits of the city by its own operation, instead of permitting it to be done, but we do not see that such fact should change the conclusion. The conditions out of which arise the necessity for the rule we apply are not the results of the enactment alone, but of the things done by the people relying upon it. By the act it is said that the limits of such cities "are hereby extended," and that, as to corporations in the outlying territory, it provides in terms that they shall cease and determine." The people, in making the change, acted upon what purported to be fixed conditions; and these facts strengthen the equitable claim of the city that it should not be disturbed, at the instance of the state simply asserting the invalidity of its authority. Finally, it may be said that, aside from the necessity of maintaining the integrity of the Constitution against infractions from legislative action, there is not a reason suggested for, or a benefit anticipated from, the judgment sought in this proceeding. Such a judgment would disrupt the present peaceful and satisfactory arrangement of all the people of the city, as to its corporate existence, without a benefit, so far as we know, to any person. The law does not demand such a sacrifice for merely technical reasons. In fact, the constitutional vindication is complete with the declaration that the act is ab Appellant makes a comparison of the cases as to the time intervening between the adoption of the law and judgment where laches were claimed as an estoppel. One case that we have cited is the same as this one, while in the others the time is longer. The time that will justify an estoppel, as we have said, varies with the cases; depending on what are the facts, and what is to be apprehended. Greater prejudice may result from a delay of one year in some cases than from ten or twenty years in others. In our examination we have not found a case in which, with many more years of delay, the consequences to be appre-solutely void. hended from a judgment of ouster were as great as in this case. The judgment of the District Court is af firmed. v. Susan J. ALLEN et al. & The unreasonable cutting or trimming of trees on a sidewalk by employees who have authority to cut or trim trees so far as is necessary in removing telephone wires which they have been lawfully ordered to remove will not sustain an action of trespass by the abutting lot owners against the employer. (February 14, 1896.) Messrs. Hewitt, Walker, & Porter for appellant. Messrs. Talioferro & Houghton for appellee Francis. Messrs. Altmen & McQueen for appellee Allen. Thorington, J., delivered the opinion of the court: These two cases arise from substantially the same state of facts, and were submitted together in this court. Appellees, being the owners of property abutting on a public street in the city of Birmingham, brought suit in trespass against appellant to recover damages for injury to their property result. ing from the act of appellant's agents or servants in cutting and trimming certain trees growing on the sidewalk in front of appellees' lots, which in one case had been planted APPEALS by defendant from judgments of by appellee some years ago, and in the other the City Court of Birmingham in favor of plaintiffs in an action brought to recover dam ages for trespass in cutting trees in the street in front of plaintiffs' property. Reversed. The facts are stated in the opinion. NOTE.-For master's liability on account of servant's torts or negligence to persons with whom he has no contractual relation, see note to Ritchie v. Waller (Conn.) 27 L. R. A. 161. case it does not appear by whom they were planted. Appellant, a corporation invested with the right of eminent domain under the laws of this state, and authorized by law to erect poles and stretch wires thereon through the streets of Birmingham, was required by an ordinance of that city to remove certain of its poles and wires from the street on which appellees' property is situated, and And, in to place them on the sidewalk in front of 15 Am. & Eug. Enc. Law, p. 405. such property. Appellant claims that, in the absence of proof to the contrary, the preorder to comply with this ordinance, it be- sumption of law is that the fee to the center came necessary to cut and remove many of of the street is in the owner of the abutting the limbs of the trees which had entwined property. Rice v. Worcester County, 11 Gray, themselves about the wires, and also to cut 283; Terre Haute & S. E. R. Co. v. Rodel, other limbs, in order that the trees should 87 Ind. 128, 46 Am. Rep. 164; Weller v. not interfere with the wires after the poles McCormick, 47 N. J. L. 397, 54 Am. Rep. were removed to the sidewalk and the wires 175; Boston v. Richardson, 13 Allen, 146. suspended over the tops of the trees; that, When such ownership is of the ultimate fee on ascertaining this to be necessary, it so in- in land constituting a public country road, formed the mayor of the city, who promised it has generally been recognized as retaining to obtain the consent of the property owners; with it, subject to the easement of passage that afterwards, and without having obtained and its incidents, and for purposes of repairs, such consent, as appellees were informed at the right to the earth, timber, and grass the time, the mayor sent an officer of the city growing between the center line of the road fire department to superintend the trimming and the boundary of the owners' lands along of the trees, and under his direction the work the road, as well as all minerals. quarries, was done by appellant's employees. Besides and springs below the surface; and such the appellant's wires on the poles, there was owner may maintain actions against those also a fire-alarm telegraph wire, which was who interfere with these rights. But, in rethe property of the city, and used in connec- spect of streets in populous places, it has tion with the fire department. It was also been said, and we think with obvious rearemoved with the poles and appellant's wires. son, that the public convenience requires Its position on the poles was underneath ap- more than the mere right to pass over and pellant's wires, and the testimony tends to upon them, and that the uses to which they show it was this wire mainly that necessitated may legitimately be put are greater and the cutting of the trees. The cases were more numerous than those which may be aptried before a judge of the city court, with- plied to ordinary roads or highways in the out a jury, and judgments were rendered in country. Mr. Dillon, in his work on Municboth cases for appellees, who were plaintiffs ipal Corporations, in speaking of municipal in the court below. The measure of damages control over public streets, uses the followadopted by the city court was the difference ing language: "Whether the municipal between the market value of the lots abutting corporation holds the fee of the street or not, on the street before the trees were mutilated the true doctrine is that the municipal auby the alleged reckless cutting and their thorities may, under the usual powers given value after such cutting. The appeal is taken them, do all acts appropriate or incidental pursuant to the statute creating said court, to the beneficial use of the street by the puband brings the whole case before us for re-lic, of which, when not done in an improper view. and negligent manner, the adjoining freeholder cannot complain." In this state, however, that doctrine must be accepted as limited and controlled by the constitutional provision requiring municipal and other corporations invested with the right of eminent domain to make just compensation for property taken, injured, or destroyed by the construction or enlargement of its works, highways, or improvements. Ala. Const. art. 14, §7; Montgomery v. Townsend, 80 Ala. 489, 60 Am. Rep. 112; Id. 84 Ala. 478; Montgomery v. Maddox, 89 Ala. 181. Although it should be conceded that the posts and wires comprising a telegraph and telephone service are an additional burden on the street, for which compensation must be made to the owner of the abutting property, the city, if it have legislative authority for that purpose, may grant the right to such a company to use the public streets for its busiThe owner of property abutting on a pub-ness in common with, and without obstructlic street in a city, in the absence of statutory provisions to the contrary at the time of the dedication, or of a different intention appearing from the instrument or act of dedication, owns the fee in the land to the center of such street subject to the public easement. Western R. Co. v. Alabama G. R. Co. (at present term) 19 So. --; Evans v. Savannah & W. R. Co. 90 Ala. 54; Moore v. Johnston, 87 Ala. 220; Columbus & W. R. Co. v. With erow, 82 Ala. 190; Perry v. New Orleans, M. & C. R. Co. 55 Ala. 413, 28 Am. Rep. 740; The two controlling questions are: First. Whether an action of trespass lies in favor of appellees, as owners of the lots abutting on the street where the trees are standing, against appellant, for the acts of its employees in cutting the trees. Second. If such liability was incurred, what is the measure of damages? Appellant's counsel have filed an interesting and elaborate argument in support of the proposition that a telephone service does not constitute an additional burden on the public streets of a city, and they cite numerous cases which are ably reasoned; but, in our opinion, the decision of the cases presented by these appeals for our consideration does not turn on that question, and we therefore leave it undecided. Other principles to which we will presently advert must govern our conclusions. ing, the use of such street by the public. Concurrent legislative and municipal authority granted to such a company to erect its poles and suspend its wires in and over the streets of a city will protect it from being treated as a trespasser, and its works from being declared a nuisance, if its works are so constructed as not to obstruct or interfere with the use of the streets by the public or the property owners' right of ingress and egress to and from his abutting property. Perry v. New Orleans, M. & C. R. Co. 55 Ala. 413, 28 Am. Rep. 740. If the company, | city ordinance, therefore, shown by the recunder such circumstances, is not a trespasser ord, requiring the removal of telegraph and in its occupancy of the street, it is competent telephone poles from that part of the street for the city to exercise whatever legislative used by vehicles, and to be placed on the authority it may possess in the matter of sidewalk within 6 or 12 inches of the curb, regulation and control over the streets, in was not an unreasonable or unlawful regula order to render effective the right conferred tion, but a prudent, if not necessary, requireon the company to plant its poles and sus- ment for a populous city, and in its enforcepend its wires in and over the public high- ment, if it became necessary to trim or remove way; and it therefore becomes necessary to the trees in front of appellees' property, neiconsider the nature of the property owners' ther the city, nor appellant acting under auclaim to the trees, and the extent of the city's thority of and in obedience to the ordinance, authority in respect thereto, in the exercise of can be regarded as trespassers. Horr & B. the powers and duties imposed on it to main- Mun. Ord. 229; 2 Dill. Mun. Corp. 688; tain safe and convenient highways through Bills v. Belknap, 36 Iowa, 583: Weller v. out the entire width thereof. Montgomery McCormick, 47 N. J. L. 397, 54 Am. Rep. v. Wright, 72 Ala. 411, 47 Am. Rep. 422. 175. Appellees' ownership of the trees, whether the latter were planted by them on the sidewalk, or acquired by devolution of title to the adjacent property, was and is a qualified and limited ownership, subordinate to the public right to safe and convenient passage, and to the rights, powers, and duties of the governing municipal body in the protection, promotion, and establishing of every public use in and upon the streets in a city. Baker v. Normal, 81 Ill. 108. In respect of all such matters, the private right of the owner of the abutting property to maintain the trees must yield to the paramount public right whenever the necessity may arisc, although, until such necessity does arise, the owner is clearly entitled to the enjoyment of all the benefits which may result to his property from such trees, and to protection from their destruction or mutilation by others. For instance, if the roots of the trees should cause irregularities or breaks in the pavement upon the sidewalk or street, or if the shade and moisture from the trees should rot or injure a wooden pavement, or if the trees otherwise interfered with vehicles or foot passengers, it would, in our opinion, be clearly within the power and duty of the city to remove such trees, and without liability to the owner. In principle, we can perceive no substantial difference between the exercise of that right by the city in the cases above suggested and where the removal of the trees may become necessary in locating upon a street a public work authorized by law to be placed upon the street, and especially where such public work is employed by the city in so important and vital à matter as the support of wires used by the city in connection with its fire department. The location of telegraph and fire alarm wires and poles upon the streets is, in the nature of the case, necessarily within the sound discretion of the municipal governing body who hold the streets in trust for the use of the public, and who are bound in law to so maintain them as to provide safe and convenient passage to vehicles and pedestrians. It may be said to be matter of common knowledge, as well as the result of experience in such governing bodies, that the appropriate location for such poles is near and inside the sidewalk curb, where they interfere neither with pedestrians passing along the sidewalk, nor with vehicles traveling along the roadway, and where falling or trailing wires can do the least injury. The It is not to be inferred, however, from anything that has been said, that either the city, acting under its police power, or any corporation invested with the right of eminent domain, acting under the city's authority, is absolved from all liability to the owner in such cases; for, 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 there from to such abutting property, the owner will have his appropriate remedy at law to redress the injury. Bills v. Belknap, supra; Montgomery v. Townsend, 84 Ala. 478. But the remedy for such injury, as we have shown, is not in trespass, but for the consequential damages resulting to the adjacent property; and the liability exists by reason of the constitutional provision hereinabove quoted, which invests the owner not only with the right to damages for property taken, but also where his property is injured or destroyed under such circumstances. The injury to the abutting property of appellees in both cases is shown by the proof not to be the direct and immediate result of the cutting of the trees on the sidewalk, but indirect and consequen tial, and, furthermore, that appellees, in cutting the trees, were proceeding under lawful authority. If there is any liability, it is in case, and not trespass. Both suits are in trespass, and it results that the city court erred in its judgment in each case. Both judgments are reversed, and, inasmuch as it ap pears that neither action can be maintained in the form in which it is brought, judg ment for appellant will be here rendered in each case. It is unnecessary to consider on these appeals the question as to the measure of damages, and we will not anticipate it. Reversed and rendered. Head, J., concurring: The defendant lawfully put its servants to removing telephone wires in a street in the city. The service, necessarily and lawfully, required the cutting of some of the branches of certain shade trees in the street, in front of plaintiffs' lots, growing upon those parts of the street of which plaintiffs were, re spectively, seised in fee. The servants, to state the case most strongly for the plaintiffs, while performing the defendant's service, went beyond their duty and authority, and wilfully cut the trees beyond any necessity to the proper removal of the wires, doing unnecessary damage to the plaintiffs' property. The only question to be considered is whether the defendant is liable in actions of trespass. We believe it to be an undeniable proposition that a person cannot be a trespasser vi et armis who neither commits, authorizes, aids, or abets, nor subsequently ratifies, the wrong ful act. It is observable, under this rule, that if one expressly commands another to do the wrongful act, and the same is done in pursuance of the command, he is, under familiar principles, guilty as a principal, and liable as such. Nor is it essential to liability in trespass that there be an express command to do the wrongful act. Thus, if an agent or servant, in and about the busi ness of the principal or master, commits a trespass upon the person or property of another, in the immediate presence of the principal or master, it will be presumed that it was done by the direction of the latter, who will be liable for the trespass, unless it is affirmatively shown that he did not coerce or direct the act, but did what he lawfully should to prevent it. Foster v. Essex Bank, 17 Mass. 479, 9 Am. Dec. 168. So, also, if a principal or master direct his agent or serv ant to do an act which is in itself unlawful, and, in its commission, an injury is done to another, or if the act commanded, if done | without injury to another, is, in itself, not unlawful, yet is of such a nature that the natural and probable effect or result of its performance is injury to another, and, in its performance, such injury is done, he who gave the command, in either case, is a trespasser. Thus, in Gregory v. Piper, 9 Barn. & C. 591, a master ordered his servant to lay down a quantity of rubbish near his neigh bor's wall, but so that it might not touch the same. The servant laid the rubbish, and exercised due care in doing so; yet such was the character of the act that some of the rubbish natually ran against the wall. Held, that the master was liable in trespass. When the wrong done has benefited another, or was done for that purpose and in his interest, such other, with full knowledge of the facts, may make himself a trespasser by ratification. Lord Coke stated this rule thus: "He that agreeth to a trespass after it is done is no trespasser unless the trespass was done to his use or for his benefit, and then his agreement subsequent amounteth to a commandment. 4 Inst. 317; Cooley, Torts, 127. To the general rule of nonliability in trespass above announced and explained, we are aware of but one exception, which is that, on principles of public policy, a public officer is liable, in that form of action, for the trespasses of his deputy, committed colore officii, wheth. er, under the rules above stated, he would be liable as a principal or not. 1 Chitty, Pl. *82. In an early Massachusetts case it was held that a sheriff who was not present at the service of a writ when his deputy committed a trespass was not jointly liable with the deputy. Campbell v. Phelps, 1 Pick. 62, 11 Am. Dec. 139. But the better rule seems to be that the officer is always constructively present, and jointly responsible for the torts of his deputy committed colore officii. See the cases collated in note to Kirkwood v. Miller, 73 Am. Dec. 134, 141: Cooley, Torts, pp. 132, 135; 1 Chitty, Pl. *82. Since the decision by Lord Kenyon, in the year 1800, in the leading case of McManus v. Crickett, 1 East, 106, until a comparatively recent period, the rule of nonliability of the master for the wilful act of the servant, there laid down, was carried to the extent of securing immunity to the master from all liability to compensate the injury, in any form of action. As late as the case of Cox v. Keahey, 36 Ala. 340, 76 Am. Dec. 325, decided in 1860, the late Chief Justice Stone, deliv ering the opinion of the court, vigorously maintained and applied the doctrine of MeManus v. Crickett. It was an action on the case, for negligence of the defendant's serv. ants in operating a steamboat. There was some evidence tending to show that the injury was wilfully committed by the servants while operating the boat. The trial court was requested to instruct the jury that the defendants were not liable if the collision was wilfully caused by the acts of their agents or servants. The instruction was refused, and the ruling was held error, for which the judgment was reversed. After noticing some other cases, the court remarked: "None of them materially unsettle the great distinction, ruled in McManus v. Crickett, supra, between those injuries which are the direct result of intentional or wilful fault on the part of the servant, and those which result from his mere carelessness or want of skill. It seems to be well settled, that if the serv ant be in the performance of a duty intrusted to him, and from a want of either skill or diligence injure another, it will not excuse the master or employer, even if the servant, in the matter complained of, was acting contrary to instructions. Trusting the servant in the given case is an assumption by the master of all responsibility which results from negligence or want of skill in the servant. But this rule does not apply when the servant actually wills and intends the injury, or steps aside from the purpose of the agency committed to him and inflicts an independent wrong." The learned judge concluded his opinion with this remark: "Whether some of the principles ruled in the case of McManus v. Crickett, supra, should not be changed so as to accommodate the relation of master and servant to the very useful, yet terrible, motive agent, steam, is a question, not for us, but for the legislature." But, as is well known, the doctrine of that case has been changed, and that without legislation. Now, it must be accepted that, in promulgating this change, the courts did not intend to usurp the functions of the lawmakers, and make new law, but to correct the errors of existing doctrines. The change was made upon a principle; and what is that principle? As we have seen, and as every lawyer knows, it has ever been the rule that the master is liable in damages resulting from the negli without his presence, authority, knowledge, or consent, or subsequent ratification. gence or want of skill of the servant in the performance of the master's service. This is so, not because the master has himself committed a wrong, but upon the well-recognized principle that, in employing a servant to perform a particular duty, he guarana master may be liable under the circumtees to the public at large, excepting fellow servants engaged in the common employ ment, that the servant so employed possesses ordinary skill and carefulness, rendering him fit for the work he is appointed to do, and that he (the servant) will characterize the performance of his duties by bringing to bear upon it the exercise of that degree of skill and carefulness. If the servant does not possess these qualifications, or, possess ing, fails to exercise them, in a given case, with resultant injury to another, the master is responsible, as a consequence of the servant's wrong, for failing to make good that which he has assumed, for the servant, to the general public. The change of doctrine to which we have referred (effected, as we have said, without legislation) necessarily rests upon the principle that there is no just distinction, so far as the rights of the public are concerned. between the characterization of the servant's performance of his duties, by careless or unskillful acts or omissions, and the characterization thereof by wilful or intentional acts of wrong. If it be essential to the public safety that the master shall as sume, for his servant, the possession and exercise of skill and diligence, for what reason is it not essential thereto that he shall assume for him the possession of that fitness of character and disposition that will deter him from using the master's service and the master's means of executing the service, placed in his hands, for the commission of wilful and intentional wrong? The stupendous modern advance in industry and commerce, operated through the work and agencies of thousands of irresponsible underservants, fraught with frightful dangers to the public safety, through the vicious dispositions of so many of these servants, opened the eyes of the courts to the want, in reason and justice, of such a distinction; and the result is that the rule of respondeat superior is applied to the latter, as it has ever been to the former, case. But the master is thus liable not because he himself has, by force and arms, directly committed the wrongful act, but because he has failed to make good to the party injured his assumption, for the servant, that the lat ter would execute the master's service in a lawful manner. His liability is therefore consequential upon the servant's unauthor ized wrongful act. As expressed by Judge Metcalf in Parsons v. Winchell, 5 Cush. 592, 52 Am. Dec. 745: "The act of a servant is not the act of the master, even in legal in tendment or effect, unless the master previously directs or subsequently adopts it. In other cases, he is liable for the acts of his servant, when liable at all, not as if the acts were done by himself, but because the law makes him answerable therefor." It would be repugnant to the plainest principles of law and logic to declare that a person has directly, vi et armis, committed an injury when the wrongful act was done by another, We are not without other ample authority for our conclusion. Thus, in 1 Chitty on Pleading, *131, we find it stated that "though stances to compensate an immediate injury committed by his servant, in the course of his employ, with force, yet the action against the master, in general, must be case, though against the servant it might, for the same act, be trespass." And Mr. Redfield, in annotating his edition of Greenleaf on Evidence, uses this language: "An action on the case is an appropriate remedy for injuries caused by the wrongful acts of the servants of defendants, even though such acts were acts of force, and such that trespass would have been the only proper remedy against the servant, citing Havens v. Hartford & N. H. R. Co. 28 Conn. 69; 2 Greenl. Ev. p. 203, § 226, note. The above quotation is in the language of the syllabus of that case, and the opinion supports it. He gives also, in a note to section 225, an extract from an English case, wherein the court remarked: "The agent's direct act or trespass is not the direct act of the master. Each blow of the whip, whether skilful and careful or not, is not the blow of the master, it is the voluntary act of the servant. And, in annotating the fifth edition of his admirable work on Railways (vol. 1, top p. 534), he states the principle so clearly that we cannot as well express it as by quoting his language. He says: "It has always seemed to us that the whole class of cases which hold that the master is not liable for the wilful acts of his servant has grown up under a misconception of the case of McManus v. Crickett, 1 East, 106, for they all profess to base themselves upon that case. That case, we apprehend, was never intended to decide more than that the master is not liable, in trespass, for the wilful act of the servant. Lord Kenyon, Ch. J., in delivering his opinion in that case, with which the court concur, expressly says, speaking of actions on the case brought against the master, where the servant negligently did a wrong in the course of his employment for the master: The form of these actions shows that where the servant is, in point of law a trespasser, the master is not liable as such, though liable to make compensation for the damage consequential from his employing of an unskilful or negligent servant. The act of the master is the employment of the servant.' This reasoning." continues Judge Redfield, "certainly applies with the same force to that class of cases where the act of the servant is both direct and wilful, as where it is only negligent. The master is not liable in either case perhaps, so much for having impliedly authorized the act, as for having employed an unfaithful servant, who did the injury in the course of his employment. And whether done negligently or wilfully, seems to be of no possible moment, as to the liability of the master, the only inquiry being whether it was done in the course of the servants' employment. And the argument, that when the servant acts wilfully he ipso facto leaves the em |