POWER OF THE DOG

Evening Post, Volume CXXIV, Issue 62, 10 September 1937, Page 10

POWER OF THE DOG

MAN'S BEST FRIEND?

LOWER HUTT DISPUTE

Dogs, fleas, barks, and smells were discussed in the Supreme Court today when an action was brought for an injunction to restrain a resident of a "superior residential locality built with good homes" at Lower Hutt from carrying on business as a dog-fancier, breeder, and kennel proprietor near the residential properties of four plaintiffs, and an injunction to restrain her from keeping more than two dogs on her property.

The plaintiffs were Clifford Ulric Plimmer, financial and investment agent, Gordon Douglas Inkster, builder, Herbert • Hardy Beazley, builder, and Percy Maynard Terry, builder, all of Lower Hutt; and the defendant Miss Viola Kettle. The plaintiffs are residents of Massey Avenue, and the defendant lives at the corner of Massey and Manuka Avenues.

The case was heard by the Chief Justice (Sir Michael Myers). Mr. R. Hardie Boys appeared for the plaintiffs and Mr. O. C. Mazengarb for the defendant.

In the statement of claim the plaintiffs alleged that Miss Kettle maintained a large number of dogs at her property, where she conducted the business of a dog-fancier and breeder. The dogs were confined in 'kennels built near the Massey Avenue frontage, and the plaintiffs contended that the continued keeping of a large number of dogs had created a nuisance ana interfered with the beneficial use by the plaintiffs of their own properties. Substantial discomfort and inconvenience had been suffered, and the value of the plaintiffs' properties in the vicinity had diminished.

All the main evidence was by affidavit, some of the deponents being cross-examined.

Mr. Terr}', in his affidavit, said that he and his wife were constantly wakened by the dogs' barking and were frequently subjected to plagues of fleas. An offensive smell came from the defendant's property, being particularly noticeable near the front gate, and the defendant made a practice of burning refuse from the kennels, including foul wet straw. His wife's nerves had been affected by the barking; and if the front door were open it was impossible to converse on the telephone when the dogs were barking. Every passing dog and group of children caused a prolonged outbreak of barking.

STATEMENT OF DEFENCE,

Miss Kettle, in her statement of defence, admitted keeping a small number of thoroughbred fox terrier dogs and that she was a fancier and breeder by hobby. The dogs were housed in properly-constructed- kennels. They were in various parts' of her property and in conditions as perfect as the most careful research and study on the defendant's part could make them, she said in her 'affidavit. la the last three years she had sold not more than six dogs, and she had not advertised herself as a seller of dogs.

The dogs were always quiet at night, continued Miss Kettle, unless they were disturbed; and the animals were kept under strict control either by the defendant or by the chauffeur. The statement about smells was absolutely untrue and the dogs were certainly not responsible for the plagues of fleas.

Because of the faulty construction by Mr. Terry of the building used as a dog hospital, it was flooded by rain and one of the most valuable animals gradually went blind and deaf and had to be destroyed, alleged Miss Kettle. From that time she ceased having any business with Mr. Terry, and he had since carried on an agitation in the district to have the dogs declared a nuisance. :

"LAST RESOURCE."

Mr. Boys said the action had been brought by the plaintiffs as a last resource. The papers showed that they had made every effort to remedy ihe matter without going to court, but the nuisance had been aggravated by the attitude of the defendant. The Court was now asked to decide whether the keeping of nine cr more dogs in what was admitted to be a "superior residential locality" was reasonable use of a dwelling-house. There was no- complaint about the treatment of the dogs; they were to be envied the care that was lavished upon them. It was the noise, smells, and by-products of which complaint was made. ■' His Honour: I see there is something said about fleas. ■ Mr. Boys: That is one of the byproducts—one of the most objectionable by-products- that constitute a nuisance. If they were a few miles awayat Taita or Silverstream they might not be a nuisance, but in Massey Avenue, on the face of it, they are necessarily a nuisance. His Honour: Wasn't there a bird case or a cat case in England? Mr. Mazengarb: That was a cockerel that crowed from 2 to 7.

His Honour: A what?

Mr. Boys: A male bird. Mr. Boys continued that only one of those filing affidavits for the defendant was a property owner, and he was the only one still living in the neighbourhood.

' His Honour: I see there is one serious result that may arise. There, are a gentleman and a lady of the same name. Are they husband and wife?

Mr. Boys: Yes. His Honour: They apparently take different views. One says it is a nuisance and the other says it isn't. Now which am I to accept, and what is to be the result of my acceptance of one as against the other—between themselves, I mean? It's a very serious matter." He has not been troubled by fleas, and if he were, how is he going to identify them? He says he has not had anything from Miss Kettle's dogs.

CASE FOR DEFENCE

I Mr. Mazengarb, opening his case, said the evidence of Mr. Terry was grossly exaggerated. His Honour said nine dogs, plus an occasional litter, were kept on a third of an acre, the greater part of which was occupied by the house. When annoyed by some dog vocalist outside they started the chorus. Was it reasonable, in a residential locality like that to have a person keeping that number of dogs? It was not unreasonable for an owner who liked the noise, but it might be unreasonable for neighbours. Was it showing a reasonable respect for the amenities other people were entitled to enjoy as attendant on their own properties? No one objected to the hobby of Miss Kettle, but there was a place for all things, continued his Honour, and he could not see the reasonableness of keeping that number of dogs in such a district. I (Proceeding.)