Clapp, Jayne and Francis. The opinion of the court was delivered by Jayne, J.A.D.
The trial of this case was terminated by a judgment of the court directing the involuntary dismissal of the plaintiffs' alleged causes of action against both defendants. The plaintiffs respectfully protest.
In undertaking our appellate consideration of the factual and legal justification for the judgment, it is methodical to examine all of the evidence which contributes support to the allegations of the plaintiffs and also to heed all of the fortifying inferences and deductions that can logically and legitimately be derived from such evidence. McKinney v. Public Service Interstate Transp. Co. , 4 N.J. 229, 243 (1950); Vadurro v. Yellow Cab Co. of Camden , 6 N.J. 102, 106 (1950); O'Donnell v. Asplundh Tree Expert Co. , 13 N.J. 319, 328 (1953); Gentile v. Public Service Coordinated Transport , 12 N.J. Super. 45, 49 (App. Div. 1951); Silverstein v. Dohoney , 32 N.J. Super. 357, 362 (App. Div. 1954).
From the evidence and its derivative inferences the following narrative of the relevant sequence of events and circumstances is composed.
Many years ago, perhaps in 1908, the City of Jersey City established a department of its municipal government known as the shade tree bureau under the supervision of one designated as the city forester. It has been the function of the bureau to plant and replace as conditions favored or as occasions required shade trees at suitable locations along the streets of the city. The service rendered by the bureau has been known by the inhabitants of the city, who commonly address to the bureau their requests for the planting of shade trees in front of their respective properties and also for the removal of dead trees and their replacement with live ones. The bureau maintains records disclosing the dates and the names of the persons making such requests, the locations of the properties, and the nature and specific time of its operations and by whom performed.
We are informed that the city has not created by ordinance a shade tree commission pursuant to N.J.S.A. 40:64-1. However, it may be inferred from the testimony of the city forester that the Bureau has upon request and indeed upon its own volition assumed for many years as a public service the planting, removal, and replanting of shade and ornamental trees along the streets of the city.
Moreover, an ordinance seems to have been adopted by the governing body of the city which originated the bureau, declared its functions, and conferred upon the city forester the authority he exercises, but unfortunately the ordinance was not admitted in evidence, and we are accordingly unaware of the precise scope of its terms relating to the city's control over such trees.
However, we notice the following admission embodied in the pretrial order:
"Deft. Jersey City, a municipal corporation of N.J. admits it is a municipal corporation and that the Jersey City Shade Tree Bureau was duly organized as an agency of or department of Jersey City, non-profit, with certain defined duties created by ordinance * * *."
The Legislature has for a period of many years vested in the municipalities the power and authority to control for the public benefit the planting and preservation of shade trees along their streets and avenues.
In the pursuit of its service the bureau some time in the year 1947 planted two trees in front of the premises identified as No. 318 Randolph Avenue, which property is at present owned by the defendant John Joseph Recka. In 1951 Recka's predecessor in title constructed a concrete sidewalk extending from the front property line to the curb, leaving, however, in it two circular openings around each of the two trees, obviously for the purpose of affording air and moisture to the roots of the ...