CLAIM FOR DAMAGES

Manawatu Standard, Volume LXI, Issue 197, 22 July 1941, Page 2

CLAIM FOR DAMAGES

INJUNCTION SOUGHT

FEUDING SALEYARDS CASE

Fouling and pollution of the Makino Stream by refuse from the Feilding saleyards to such an extent that the hutterfat ])roduction of a farm lower down the stream had been lessened, that two cows had died through drinking polluted water and that a milking herd had deteriorated, were alleged in the Supreme Court in a case heard by the Chief Justice (lit. Hon. Sir Michael Myers) yesterday. A claim was made for £874 as damages, and an injunction was sought restraining.defendants from sending any matter into the Makino Stream from the saleyards which might pollute the water p.f the stream. Plaintiff was Arthur George Read, farmer, of Awahuri Road. Feilding, and defendants the New Zealand Far- ,! mers’ Co-operative Distributing Coy., I Ltd., Messrs Abraham and AVilliams, ' Ltd., the New Zealand Loan and Mercantile Agency Coy., Ltd., and l)al- • gety and Coy., Ltd., all trading together as the Manawatu and West Coast Live Stock Auctioneers’ Association. Dr. O. C. Ma/.engavb (Wellington), with him Mr J. C. Hill (Feilding) appeared for plantiff, and Messrs H. R. Cooper and D. C. Culli- ■ nane (Feilding) for defendants. The statement of claim set out 1 hat plaintiff was the owner of 51 acres of land at Feilding. The Makino Stream ran through this land and plaintiff was entitled to use the water of the stream. Defendants were the proprietors, occupiers and users of the Feilding saleyards. The sewage and ret use from these yards was carried through ja drain into the Makino Stream at a point about- 20 chains above where the | stream entered plaintiff’s land and its water was thereby fouled and polluted. Plaintiff, on many occasions in the past I six years, had protested against the 'actions of defendants in polluting the stream and requested them to refrain from doing so. Notwithstanding this, i defendants continued to pollute the waters of the stream. In consequence of the actions of defendants, plaintiff had suffered the following loss and I damage: (a) The hutterfat production of the farm was less than it would otherwise have been, and plaintiff had sustained a financial loss of £.554; (b) two cows (worth £2O) had died through drinking polluted water, and, (c) plaintiff‘had lost, through deterioration of his herd, the sum of £IOO. To guard against further pollution, plaintiff (in order to minimise his loss and avoid further damage) had been obliged to fence off the stream and to i’nstal a water supply for his stock at a cost of £2OO. Plaintiff claimed the damages named and the injunction restraining defendants. The defence was a denial of the allegations and that deiendants were proprietors, occupiers or controllers ot the saleyards, but admitted that each defendant at times used the yards lor the purposes of selling cattle and sheep by auction. Defendants denied that any sewage or refuse from the saleyards was carried to the stream or that its water was thus fouled or polluted. Deiendants also denied that plaintiff had on any occasion protested against the actions of defendants. It was further denied that plaintiff had suffered the loss and damage alleged. and that, as the result of any actions of deiendants, o,r by reason ot their failure, plaintiff had been obliged to do the fencing and laying on of water. The allegations as to financial loss were also denied. For a further defence, defendants said that, if it be proved that the water of the stream was polluted by sewage and refuse from the yards defendants and other occupiers had. for the past 20 years t and more prior to the commencement | of the action, as of right and without; interruption, caused the sewage and | refuse from the saleyards to drain into the stream for the more convenient use of the saleyards. COUNSEL’S SOBMISSIONS. r.i nnoniurr t.lm case for plaintiff. Dr.

In opening me case mi ~ Mazengarb said that about seven years ago plaintiff began to be troubled by sickness and death among his cattle and a reduction in the butterfat production. Ten or 12 years ago complaints were made alxiut the state or the yards. (Since then the yards were concreted and waste matter was hosed off the vards and went through about a mile of drains, of varying form. Six years ago serious trouble commenced in the Alakino Stream, this being when the Podding Jockey Club cleaned out drains carrying material across tno club's property from the saleyards. Plaintiff complained to the Health Department and defendants put in a sump. The next step was to complain to a member of the Manawatu County Council (plaintiff's land being in the county). Jn-1936 and 1937 plaintiff saw two cows die about an hour after drinking the water. The pollution ot the stream was particularly bad in summer when the sales wore larger and there was not so much water in the stream. Dr. Mazengarb read letters which had been exchanged between Mr Hill and the association, and also between the Inspector of Health and defendants; and the town clerk and t ie association. Dr. Mazengarb said the remedies at the yards would be to scrape up the matter before hosing down; to have a large cesspit or settling pond in or near the yards that would take the whole of the washings; to drain the water from the cesspit away by a pipeline to some sandy country or to the Orouu River; or, alternatively,, to treat the water from the cesspit with some chemical K 'il>stance and purify it. AN hen plaintiff bought the farm in 1924 its chief attraction was the beautiful clear stream,, with trout and other fish in it There were also pools in which children could bathe; the water was then good drinking water for the people on the farm. Referring to the statement of defence, Dr. Mazengarb said defendants were the only occupiers of the yards, in spite of their denial. The pollution did not take place until six years ago, when defendants concreted the yards. Plaintiff’s butterfat production went down from 82261 b in 1936 to 66001 b in 1940. When plaintiff put in ail auxiliary artesian supply there was an immediate increase in butteriat by over 20001 b from a herd of 34 cows. Prior to'the pollution the herd was averaging 3001 b of butterfat. The land was improved, but notwithstanding that the production fell. The cows refused to chink the water, and at week-ends, when pollution was worst, the production of the herd went down. During the past six years plaintiff had culled an average of eight cows each year; normally only four were culled. The abnormal culling was due to the fact that they were sick because of the bad water and, secondly, to the variation in their producing capacity during the week. The Court then adjourned till this morning.

HEARING OF EVIDENCE

When the case was continued to-day, C. H. Tate, town clerk of Fcilding. produced a plan of tlie borough a file of correspondence between the Borough Council and defendants, and said the council accepted no responsibility lor the disposal of waste arising from the hosing down of the yards. Cross-examined, witness said defendants approached the council.on the subject. Surface drainage from the borough went into the Makino Stream. The Cheltenham Dairy Company factory (and its pig farm) were not far from the stream, and the Tedding Agricultural High School also was not far away. Witness did not think that a weed-killer used on borough streets would reach the stream.

| W. Whisker, carpenter, who has resided in Kawa Kawa Road, opposite plaintiff’s farm for nearly (50 years, j said the water in the Makino Stream I was very clear until a few years ago. 'lt was good for drinking and there were trout and a few perch in it. j Witness described the drainage from the dairy cattle section of the saleyards through a bowling club’s property and on to the Makino Stream. Three sumps were in the yards at this point. The yards were hosed out on Friday evenings and Saturday mornings. The place where sheep had been located was swept out first. When water from the saleyards flowed into the Makino Stream cattle would not drink from the stream, nor would wit- ' ness’s horse. The pollution was worst on Saturday mornings, and in December and January, when the stream was practically dry. Cross-examined, witness said he did not know the dairy pens (which he concreted) were not used from November to April—he thought they were. | D. W. Reid, farmer, of Sandon Road, said he had lived at Fcilding practically all his life and for the pusL 1(5 years had been a member of the Manawatu County Council. Plaintiff, as well as Mr Gray and three residents of Kawa Kawa Road, complained of the drainage into the stream. Witness inspected it. and found it very polluted with solid matter and not fit for any animal. Witness saw representatives of the defendant companies about the matter. The sumps were not large enough, he added. One might as well use a jam-tin to catch the solid matter. After the last spring cattle fair, a big one, waste matter so blocked a pipe under a road that witness scraped manure away with a stick to stop the matter from flowing across a lootpath Witness had suggested the construe tion of a settling pond, possibly on the Fcilding Jockcv Chill’s property. Refuse from the Cheltenham Dairy Company’s pig farm was distributed over that company’s land. Water Irom the Bacon Company’s factory reached the Makino Stream, but this water was quite clear. Under cross-examination, witness said that water from the washing clown of the sheep pens for many years had gone to the Makino Stream —that from'cattle pens only since about six years ago. Since the beginning of this latter period the nuisance had become progressively worse, until it was very severe. \\ itness did not know if there was a cowshed above plaintiff’s farm draining into the stream—he would say no. W. Hastie, farmer, of Awahuri Road, said ho had resided in the neigh- , bourhood since 1913 or 1914. He had j owned his present property for about 12 months. Ho first saw manure from . the saleyards coming down the Ma- j kino Stream on a Saturday morning, i Cattle walked up and down ilie stream without drinking, and it was about two days before they would drink. Last summer the trouble was “pretty had" because there was little water in the stream. Witness’s cowshed did not drain into the stream; W. A. Moyle, farmer, gave evidence that the stream formed a boundary ol his property on Kawa Kawa Road. When lie bought the property in 1924 tlie stream was nice and clear, and witness saw" a trout or two in it occasionally; but lie had not seen any in the last seven or eight years. Since the dairy pens in the saleyards were concreted witness’s cattle would lie drink the water in the stream. Witness put in an artesian water supply and now had the stream fenced off so that stock could not get at it. Five or six months ago the stream at plaintiff’s property was green in colour and carried animal manure. H. P Wilson, teamster employed by plaintiff, for the past five years, said the stream was polluted on Saturdays and Sundays and the larger the sale the worse the pollution. The horses would not drink the water at weekends. One horse drank on one occasion and then “went off his feed ” Cows drank the water when it was clear, but on the day after a sale they would not L. W. Summers, son-in-law of plaintiff. who. over tlie past ten years, had handled plaintiff's dairy herd, gave evidence along the same lines as other witnesses. In the last five years, lie said, some of the cows had apparently been poisoned by the water, this bringing on various ailments. Tn 1936 a cow drank the polluted water and died an hour later. Shortly afterwards another cow drank the polluted water and it rlied also. Other cows had died, and witness did not know why. Production from the herd dropped considerably at the week-ends and rose again during the week Since the artesian sip had boon installed there had been no variation in the returns. 'j'lie luncheon adjournment was taken at this stage.