will enable such township, village or city to keep its public highways, streets, bridges, sidewalks, cross-walks, and culverts in good repair at all times. Highway commissioners, street commissioners, and all other officers having special charge of highways, streets, bridges, sidewalks, cross-walks, and culverts, and the care or repairing thereof are hereby made and declared to be the officers of the township, village, city, or corporation wherein they are elected or appointed, and shall be subject to the general direction of such township, village, city or corporate authorities in the discharge of their several duties."

The title of this act is:

"An act to provide for the recovery of damages for injuries caused or sustained by reason of defective public highways, streets, bridges, sidewalks, cross-walks, or culverts.'

Section 50, subd. 1, 1 Comp. Laws, contains the provision:

"All words and phrases shall be construed and understood according to the common and approved usage of the language; but technical words and phrases, and such as may have acquired a peculiar and appropriate meaning in the law, shall be construed and understood according to such peculiar and appropriate meaning."

Certainly it would not be the common understanding from this title that the presence of a dead limb of a tree within the limits of, or overhanging from private premises, a public highway, is such a defect in the highway as to be within the intention of the legislature in its requirement to maintain and repair streets, bridges, sidewalks, cross-walks, and culverts, and to respond in damages. If we look at the sections themselves, we shall find that they do not give a right of recovery for all injuries, but only such as are sustained by reason of neglect to keep the ways in repair and in condition reasonably safe and fit for travel -not to maintain a highway where the traveler shall be safe. The duty imposed is to keep ways in reasonable repair, so that they (the ways) may be reasonably safe and convenient for public travel, a stating of the purpose

or reason for the requirements made, not an enlargement of them. Evidently this statute was to require the local maintenance of the State's highways in a reasonably good and safe condition, and the payment of damages due to accidents caused by a failure to do these things required by statute, and not for accidents due to extraneous or other causes, or neglect. There is no legitimate inference that the traveler was to be protected from the inconveniences and dangers from snow and sleet and ice, nor that the legislature supposed it was imposing upon the local constituencies the burden of protecting travelers, at an expense of millions of dollars annually, against accidents, so rare that we have no judicial record of a similar accident in this State. Who can doubt that, had our highway officers attempted to expend public money in the inspection and trimming of trees, in conformity to plaintiff's contention regarding the meaning of this statute, the townships and villages would have protested against so unjust an extension of the law relating to torts. The requirement, if made, would have been burdensome in proportion to its benefits. There is a strong presumption in favor of a construction which will not work injustice. Osborn v. Charlevoix Circuit Judge, 114 Mich. 655, 660; 26 Am. & Eng. Enc. Law (2d Ed.), p. 646.

We may take judicial notice that many trees annually shed large numbers of dead limbs. Usually they are small in proportion to the limb in this case, but many are large enough to seriously injure a person upon whom they should fall. They are all within this rule contended for; and never in the history of the country has there been an attempt to compel municipalities or private persons to assume the dangerous and expensive burden of anticipating and performing the function, so well and so far so safely performed by nature, of maintaining a living tree in a safe condition. There is nothing in this statute that imposes a duty as to trees, nor is there any reason for saying that the ordinances cited impose a liability. These ordinances undertake to punish the injury or cutting of

trees standing in the street by any person other than adjoining proprietors. Nor does defendant's charter, which gives the city power to direct and regulate the planting, and to provide for the preservation of ornamental trees, impose any such duty or liability as those contended for. We have held that this statute imposes a duty to remove some kinds of dangerous obstructions from a highway, after notice, but this is upon the theory that they constitute defects in the surface of the roadway itself, and upon no other theory, and this has been held not to include a duty to protect against such temporary obstructions as are due to natural causes. McKellar v. City of Detroit, 57 Mich. 158; McArthur v. City of Saginaw, 58 Mich. 357; Kannenberg v. City of Alpena, 96 Mich. 53; Gavett v. City of Jackson, 109 Mich. 408 (32 L. R. A. 861); McEvoy v. City of Sault Ste. Marie, 136 Mich. 172; Thompson v. West Bay City, 137 Mich. 94.

Another reason forbidding the construction urged is that the language of the statute clearly indicates that it is to the physical highway that it refers in its method of construction, maintenance, defects, and repair. This is indicated, not only by the general words, which, as already stated, should be understood to mean no more, and the rule that "a statutory liability, created in derogation of the common law cannot be enlarged by construction (see City of Detroit v. Putnam, 45 Mich. 263; Keyes v. Village of Marcellus, 50 Mich. 439; Williams v. City of Grand Rapids, 59 Mich. 51; O'Leary v. Board of Fire & Water Com'rs of Marquette, 79 Mich. 281 [7 L. R. A. 170]), but also by the mention of various specific portions of the way, such as sidewalks, culverts and bridges, which tend to limit the word "street." The case of City of Detroit v. Putnam, supra, is in point. This statute as originally passed (Act No. 244, Pub. Acts 1879, 1 How. Stat. § 1442) was practically identical with its present provisions, except that the word "sidewalks" was not included. In the case cited it was held that there was no liability for accidents caused by a

defective sidewalk, and the substantial change made by the present statute was the insertion of that word. Doubtless the decision cited was the occasion for the amendment. The court said:

"We have but little doubt that, if the liability had been created for injuries sustained in consequence of a failure to keep in repair the highways and streets, these terms would have included all within the limits of the line thereof, and thus the sidewalks, as well as the bridges, cross-walks and culverts. The special terms used do not enlarge, but limit, the force of the general words used. In village and city charters express provisions relating to sidewalks will always be found, and the omission of such in this act is very significant.

"As already said, the city would not be liable in the absence of this statute, which creates the liability, and we cannot by construction enlarge the liability. Where a statute attempts, in derogation of the common law, to create a liability, we cannot go beyond the clearly-expressed provisions of the act. Such statutes are not to be extended or enlarged in their scope by construction."

Such a construction would not have been possible if the plaintiff's contention is correct, and the court would have been obliged to hold that the general language was broad enough to include sidewalks and all other portions of the highway.

This is a statute in derogation of the common law, as we have said. That it must be strictly construed for that reason is shown by many cases in our reports. The liability contended for must rest on implication, and in this connection the case of Bandfield v. Bandfield, 117 Mich. 82 (40 L. R. A. 757), has application. We there said:

"No such right is conferred by our statute, unless it be by implication. The legislature should speak in no uncertain manner when it seeks to abrogate the plain and long-established rules of the common law. Courts should not be left to construction to sustain such bold innovations. The rule is thus stated in 9 Bac. Abr. tit. "Statute," I (4), 245:

"In all doubtful matters, and where the expression is in general

terms, statutes are to receive such a construction as may be agree. able to the rules of the common law in cases of that nature; for statutes are not presumed to make any alteration in the common law farther or otherwise than the act expressly declares. Therefore in all general matters the law presumes the act did not intend to make any alteration; for, if the parliament had had that design, they would have expressed it in the act.""

But one case-McGarey v. City of New York, 89 App. Div. (N. Y.) 500, has been cited where a recovery was sought upon a similar injury, and that was not a decision of a court of last resort, and was made by a bare majority of the judges who sat. Moreover, it was in a State that recognized a common-law right of recovery of private damages whenever a duty was imposed upon a municipal corporation, a rule which does not obtain in this State.

Hill v. City of Boston, 122 Mass. 344, contains an elaborate discussion of the question, and a review of the American cases which is summed up in the following language:

"There is no case in which the neglect of a duty, imposed by general law upon all cities and towns alike, has been held to sustain an action by a person injured thereby against a city, when it would not against a town. The only decisions of the State courts, in which the mere grant by the legislature of a city charter, authorizing and requiring the city to perform certain duties, has been held sufficient to render the city liable to a private action for neglect in their performance, when a town would not be so liable, are in New York since 1850, and in Illinois. The cases in the Supreme Court of the United States in which private actions have been sustained against a city for neglect of a duty imposed upon it by law are of two classes: (1) Those which arose under the peculiar terms of special charters, in the District of Columbia, as in Weightman v. City of Washington, 1 Black, 39, and Barnes v. District of Columbia, 91 U. S. 540, or in a territory of the United States, as in Nebraska City v. Campbell, 2 Black, 590. (2) Those which, as in Mayor, etc., of New York v. Sheffield, 4 Wall. 189, and Chicago City v. Robbins, 2 Black, 418, arose in New York or in Illinois, and in which the general liability of the city was not denied or even discussed, and apparently