SALEYARDS CASE

Manawatu Standard, Volume LXI, Issue 198, 23 July 1941, Page 8

SALEYARDS CASE

SUPREME COURT EVIDENCE. Further evidence was heard in the a Supreme Court at Palmerston North, - yesterday, in the case in which Arthur - John Head, farmer, of Awahuri Road, e. Fcilding, sought £874 as damages -! from the Manawatu and West Coast 1 i Auctioneers’ Association, the allogai tion being made that the Makino 1 Stream was polluted by sewage from - the Fcilding Kaleyards. Plaintiff also ? ! sought an injunction restraining the 3 defendant companies comprising the i Auctioneers’ Association from continuing to deposit waste matter from the . salcyards in the stream. The Chief ij Justice (Rt. Hon. Sir Michael Myers) : j presided. Dr. O. C. Mazengarb (Wellijington) and Mr J. C. Hill (Fcilding) appeared for plaintiff, and Messrs HR. Cooper and D. C. Cullinane (Feild--1 in") for the defendant companies. 1 Cross-examined after the luncheon • adjournment L. W. Summers, son-in-law of plaintiff, who looked alter the dairy herd, said that one side of the Makino Stream was fenced for the whole length as it affected plaintiff’s farm. On the other side, out of 10 or 12 chains, five or six chains were fenced. In reply to His Honour, witness said the fencing was placed there to keep calves from coming back to the cows. The cows drank at troughs served i by the artesian well because it was more convenient there and because they were afraid of pollution. S. R. Reed, health inspector, said that three or four years ago lie was ' consulted by Messrs Reaa and Oarlick Jas to the condition of the Makino j Stream. It was undoubtedly polluted. | witness added, the source of this pollution lieing the saleyards. Witness suggested that the yards lye swept before being washed down, and he understood that this suggestion was adopted. In September, 1940. the stream was very much polluted on a Saturday and a Sunday, but later in the week the water had no apparent pollut on. Later in the year witness j investigated the method of cleansing tlie yards and he thought the sumps employed were certainly too small. Defendants considered it very difficult to clean the yards by using less water. A large cesspit was mentioned as a possible solution. Witness thought a precipitate would have to lie used, too. It was suggested that, as the sale yards wore within the borough, drainage should he provided by the borough. Samples taken showed that most of the waste matter remained in suspension in the water for several days. In the Makino Stream, above the drain, there was no apparent pollution, but a sample taken from a point below the drain was polluted. To Mr Cooper, witness said the sam pies were taken early in last December. An extra sump which was put in helped the position very little indeed.

COMPARISON OF PRODUCTION. Plaintiff gave evidence that before be bought the farm in 11)24 lie particularly noticed the beautiful stream, with fish in it. At first the stream was very clear; children bathed in it and the water could be used for drinking purposes. Prior to the pollution plaintiff worked the farm’s butterfat production up to 90001 b. This was just a little under 3001 b per cow. About six or seven years ago he started to have trouble with his cattle. Some of the cows died from unknown causes. The stream was polluted and became worse, and he began to think the water was the trouble. Finally, the cows would not drink the water. He had seen two cows (previously quite well) die after drinking the water. The butterfat returns of the herd went down little by little even though the cows had plenty ot good feed. The quantity of the milk and of the butterfat was loss at the week-end as against the middle of the week. In 1939 40 plaintiff became so alarmed that he put in an artesian water supply and fenced off part of the Makino Stream, 28 chains'of fencing being required. With the new water supply the butterfat production was definitely better and did not vary over the week-ends. After an open drain ill the Jockev Chib’s property was cleaned out plaintiff received the full force of the sewage, for the “settling pond” there was no longer working, beiim clean. Last Saturday plaintiff and his solicitor took samples of water from the saleyards to the farm. Six sealed bottles were produced in Court, these being filled with water of progressive variations in colour. Plaintiff said the samples .were taken between 10 a.m. and 11 a.m. These were from various points—at the stream above the drain, in the stream below the drain, in the drain, in a drain in the Jockey Club’s property, in Warwick Street near the Bowling Club’s property, and the last in a sump at the cattle yards. The water in tlie last bottle was very dark. Friday's sale was ail ordinary winter one. Summer sales were often double the size of winter sales and the creeks carried much loss water in summer. Samples of stones from the streambed were also produced, two, said plaintiff, coming lrom above the drain carrying the sewage and others in plaintiff’s property, where the sewage . flowed. On the homestead side of the stream the whole of the stream had j been fenced off. This was not occasioned altogether by Hie bad water. On ] the other side, plaintiff had commenced ; to fence the property in order to keep j the stock from the creek, and six ■ chains had been completed. There was < a further 10 or 12 chains to do. j Cross-examined by Mr Cooper, plain-- ; tiff said lie would be sorry to see the i stock sales shifted from Fcilding. lie ( bad not bad eithci of the cows which ; rlied suddenly inspected to ascertain ~ the cause of death. i This closed the case for plaintiff and j the Court adjourned until to-day. 1 ALTERNATIVE CONSIDERED. I c When the proceedings were con- t tinned to-day, it was indicated that ;■ i scheme was now under consideration n or the dispersal of the whole of the £ icwagc in another direction. _ Ilis Honour tho Chief Justice comnented that it would be of no use j stopping a nuisance in one place to t ■rente another elsewhere. It was then | ; stated by leading counsel for the Auc- s sioneers’’ Association (Mr Cooper) j hat, if tho scheme was not practicable t she shifting of the yards to another 0 oeality would have to be considered. Opening for the defence. Mr Cooper f sniphasised that the saleyards were j, ■cry important to the town and the arming community. In 1937, 395,635 if ilieep were sold there and 43,340 cat- t le. This year was nothing out of the f irdinarv. If an injunction were r ’ranted and this had the effect of shut- a nig down the saleyards. it would lie ,'j i, very serious matter for the whole | lommunity. _ s His Honour: This does not menu the •losing down of the saleyards. In any . •use, if there is a nuisance, it.musti 11 top. if Mr Cooper said lie did not want to 1 “ nirke the issue. .He realised that ? ilaintiff had a right to have tho i itream water flowing in its natural ~ tate. . . i r. The Auctioneers’ Association -had “ ieen collaborating with the Feilding ® lorough Council and had received ad- ct •ice from an Auckland firm of engiicers (these plans having now been n übmitted elsewhere) for a scheme ii vhich would take all the affluent from n he yards in another direction, pro-jo

cceclotl Air Cooper. What defendants ivould ask for was time to enable the scheme to bo put into effect. His Honour said that if plaintiff were entitled to an injunction, the Court would not do anything arbitrarily; the last thing it wanted to do was to prevent the carrying on of an important business ' At the same time, if there was a nuisance, then it must bo abated. Proceeding, Mr Cooper said that effluent, it was admitted, had gone into the Makino Stream for 40 years or so. His Honour: Not the same way.

Mr Cooper agreed that this was so. Mr Cooper said it would take some months for the work mentioned to be carried out. There might be difficulties as to labour and machinery. His Honour said that it would be no use if one nuisance were taken away and another created. Air Cooper said this was recognised, and if the nuisance could not bo averted then the shifting of the saleyards to another locality might liave to be considered. The main question was that of damages. His Honour: Docs that mean, then, that you are but faintly protesting against an injunction ? Air Cooper replied that such was the position. He did not wish to take up the time of the Court with argument he did not feel was sound. It was not a defence, so far as an injunction was concerned, that other people polluted the water. His Honour: Then you realh admit that an injunction must go? — That is so.

Proceeding, Mr Cooper said that he could not advance arguments tluu plaintiff could not have the water in the stream in its natural state. His Honour then noted the point as to tlie injunction. ASPECT OF DA AIAGES.

Continuing, Mr Cooper said that tlio damages, as claimed, were not only excessive but the claim for them must fail. The points were the two cows which died, deterioration of the herd s production— His Honour: I am not going to take any notice of that or of the cows. Proceeding, Mr Cooper said that the shorter fencing had, according to one witness, been done to keep calves from plaintiff’s herd. There had been no mention before the case of any claim for damages. The fencing on the other side of the stream was put up lor the ordinary conduct of the farm. Air Cooper dealt at length with the production figures of plaintiff’s herd, and said there was not the slightest evidence —and such evidence was unprocurable—that water polluted by animal excreta was injurious to dairy stock. There were thousands of instances in New Zealand of milking sheds standing on the banks of streams, yet this was the first ease in which, to his knowledge, such an allegation had been made. An experiment had been conducted in England in which cattle had been actually watered on sewage and at the end of 21 months .not only had the cattle not been affected, but they had even improved. EVIDENCE FOR DEFENCE.

J. G. Eliott, stock auctioneer, employed by the New Zealand Farmers’ Distributing Co.. Ltd., said the dairy pens were concreted in 1933 or 1934. The area under .concrete in these pens was approximately 1450 square yards. The total area was 11,336 square yards. Ever since lie had been in Feilding drainage from the yards had gone out by Warwick Street (this being the route of the drainage affecting plaintiff;. Other drainage went away by Kawa Kawa Road. The yards were not controlled by the Alanawatu and West Coast Auctioneers’ Association, in so far ns there were other firms which were members of the association, which had no say in the control of the yards. The lour companies men tioned in the ease were those which used the yards.

T. K. Hay, Feilding borough engineer, said the greater ]>art of the stormwater from the township went into the Makino Stream. If there was an overflow from two of the manholes in the sewerage system of the borough this overflow would go into the Makino Stream. Under cross-examination witness said that overflow from the sewerage system was not polluting the stream. The overflow from the two manholes would be solely stormwater.

IT. Vickerman, consulting engineer, of Wellington, said he went to Feilding on July 9 to advise as to a scheme for getting sewage away from the saleyards. Ho inspected the drainage from the saleyards by way of the Jockey Club’s land. In several places in the drain (not in the Makino Stream) there was a. scum of oil. At tlie outlet to the stream there was a slight brownish discoloration, but in the stream itself there was a similar discoloration. There was not much difference between the two waters, that in the drain and that in tlie stream above the drain.

Dr. Mazengarb: I suppose it is fair to say the trouble can be rectified ? Yes.

His Honour: And at not a very heavy cost? —That is so.

Dr. Mazengarb: And in what time? —ln four to six months.

W. It. DlcPhail, contractor, of Fcilding, gave evidence that for the last three years he had been the contractor for the care and cleaning of the saleyards. To clean them, they were hosed in winter. In summer the sheep pens were brushed and scraped and the cattle pens hosed. Scraping of cattle pens had been unsuccessful. In a week about 14,000 gallons of water were used, this being paid for. Witness produced five samples on Saturday last and handed them to Mr Hill Motion, « veterinary surgeon. The samples were taken from points in the drain just below the sump after the water lmd passed through the Bowling Club’s property, in the drain just before it entered the stream, in the Makino, Stream above the outlet of the drain, at six chains below the outlet, and at plaintiff’s boundary. To Dr. Dlazengarb witness said these were taken at 5 p.m.

Dr. Mazengarb produced samples previously used in the conduct of plaintiff’s case, these having been taken between 10 a.in. and 11 a.m. on the same day. The samples taken earlier in the day were considerably darker than those taken later, it was pointed out.

G. IT. Couclimau, occupier of a small farm in South Street, said it was hounded for five chains by the Makino Stream. Witness’s cows liked water from the borough supply rather than that from the stream, because the .former was cleaner. The stream was really a drain and in summer time anything went down it. and there was an oily substance on the water at times. Septic tanks drained into the stream.

W. DlcAvoy, with a property fronting Root Street, north of the borough, near the Cheltenham'Dairy Company’s factory and pig farm, said' the Makino Stream (lowed through the pig farm. In summer witness’s cows could not

drink from the stream. The water was then black and the smell was bad On occasions the water was whitishcoloured. as if with washings from the dairy factory."

L. I). Legg, dairy farmer residing north of the borough, said the water in the Makino Stream in his property was not suitable for his cows because of a natural oil seepage. In March of

this year a cow died oil drinking this oily water.

The luncheon adjournment was taken at this point, there being thou three further witnesses to be heard ior defendant companies.