Jackson, Chief Justice.
This action was brought by Castleberry against the city, to recover for damage done his property by grading the sidewalk.
The first ground of error is, that the court, in its charge to the jury, made the whole case, — not damage to the shade-trees only, but to the whole property of the plaintiff in error, turn on the point of negligence in the work. If this were so, it would be clear error, but, on a careful examination of the whole charge, it is manifest that the judge confined the issue of negligence to the shade-trees. There is one paragraph of the charge, which, by itself, would bear the interpretation of plaintiff in error, but, construed in connection with all the rest, it must have been a mere inadvertence or slip, and could hardly have misled the jury.
Another exception is taken to the charge in respect to the increase of value of the property of plaintiff in error, whether caused by the grading of the street or the location of a depot in the neighborhood, on the ground that there is no evidence to support it. There is abundant evidence of a large increase in value of plaintiff’s property, and the issue whether it was increased by the railroad depot or by the new grading was submitted to the jury. Something caused it; what, is not absolutely certain. The weight of evidence is with the railroad depot, as the increased rents commanded arose from a ten year lease to the company; and that the grade helped, is rather inference and argument than proof; but the right of a jury to argue and infer, and that its verdict is compounded of logic with law and fact, have been decided by this court. Therefore there are threads on which the charge may hang.
Where the court in a note explains its action in respect to the mode of argument of counsel, showing that he was checked as soon as possible, and no longer persisted in allusions outside of the testimony, there is no error which will be considered in this court. It was cured below, if there was hurt.
We think that shade-trees on the city’s sidewalks and streets belong to the city,- and in grading the streets and sidewalks, they may be removed, if necessary to the grading. There was no error in charging to that effect, and in charging that damage resulting from their being killed must have been caused by neglect and carelessness in the work.
While there is a degree of convenience and comfort about the shade-trees on sidewalks fronting a house, yet these must yield to the control of the city authorities over the public walks; and the court certainly went to the extreme of the law, when it authorized damage for negligently and carelessly killing them.
The real question in the case at last is this, does the evidence support the verdict? Our minds hesitated much on the point; but in view of the fact that the evidence of plaintiff mostly goes to the cost of repairing his property, rather than to deterioration of market value, and most of it is leased for ten years, free from taxes and repairs, and as it is a case where the plaintiff’s property seems clearly to have increased in value, a sort of damnum absque injuria case, and inasmuch as the court and jury below both concurred that plaintiff isnot hurt, and as his property really has grown in value, we conclude to let the verdict stand.
Judgment affirmed.