LOSS OF SHELTER

Evening Post, Volume CXXIV, Issue 120, 17 November 1937, Page 20

LOSS OF SHELTER

CLAIM AGAINST POWER

BOARD

DAMAGES AWARDED

(By Telegraph—Press Association.)

AUCKLAND, November 16.

Losses in an orchard as the result of the topping of a "belt of shelter trees by workmen of the Auckland Electric Power Board were involved in a claim) for damages by an orchardist against the board in the Magistrate's Court. The board alleged the trees constituted a danger to public safety in their contact with a high-tension power line bordering the property. The plaintiff, a Dalmatian, Joseph Borich, Blockhouse Bay, claimed £230 damages and £50 for trespass. He was represented by Mr. Jenkins, and Mr. Terry defended on behalf of the board. Mr. W. R. McKean, S.M., presided.

Mr. Jenkins said the plaintiff had occupied the property for 28 years and a belt of pine trees surrounding the place had been growing all that time. During the past 20 years he had developed the land as an orchard and now had 460 fruit trees. On March 8 last, while, he was absent, workmen notified his wife that they were going to cut the shelter trees but not that they were going to top them. It was held that failure to give such notice as required by the regulations constituted trespass. The fruit trees were now exposed to westerly., winds and . the plaintiff stood to lose, to some extent. The plaintiff said the ; trees were reduced in height by about 25 feet, and it would take about 10 years for the trees to recover^ Some were-already showing signs of dying/ which meint they would have to be replaced. The growth of fruit trees and crops was being affected and the plaintiff expected his annual _ loss would be a third of his output," representing, about 500 cases. ' ' '

An Auckland member of the Fruit Export Control Board, Frank Firth, said it was essential for Auckland orchards to have good shelters. Some of the plaintiff's best shelter trees were among those topped, and he was liable to;lose his whole crop in the exposed area, while, if there were no extraordinary conditions, he might still lose a quarter of his crop. His loss over seven years, allowing time for the growth of shelter trees, might be about £300, and there was always the danger of the trees being uprooted. Similar evidence was given by William John Rodger and Phillip Sunde, orchardists, who assessed the plaintiff's potential loss at about 25 per cent.

CASE FOR DEFENCE.

""If there is any damage, we suggest the, claim shows an inflated or exaggerated measure of ■ the loss which must be the basis of the prosecution," said Mr. Terry, in opening for the defence. "Compensation must be paid if-loss is proved. The statute requires Seym days' notice to be given in such a case as this but, in view of the plaintiff's wife consenting to the work being done, it is submitted that the claim for trespass is negligible. The trees were overhanging the highway—some branches were actually among power lines—and they did constitute a public danger." Thomas Aldridge, superintendent of parks for the Auckland City Council, said he inspected the plaintiff's orchard in July, finding the shelter trees in a very unhealthy state. Thejc were thin at the base where, to afford the best shelter, they should have been covered with foliage. The present value;of the shelter was such that the orchard might as well have none at all. Topping could not have had a very detrimental effect on the shelter. Charles Robert Reeder, commercial gardener, and Herbert John Ross Cutler and Ernest Hosking, nurserymen, said the belt created a draught which made conditions worse than if the fruit trees were not sheltered at all.

"The case would never have arisen if the power board had taken the steps it is required to take," said the Magistrate. ;;"Local authorities have powers which are necessary in the interests of public safety, but it is not expected that they should abuse their rights. In this case the /board did something it was not entitled to do, thereby committing - trespass., The claim for damages, however/ is far too much, as I find it difficult to imagine that the plaintiff will-lose,to the extent which his witnesses indicate." Judgment was entere*;for the plaintiff for damages totalling £120, including £25 for trespass, with costs £10, and-witnesses' expenses £4 15s 6d.