DAMAGES AWARDED

Nelson Evening Mail, Volume LXXI, 18 November 1937, Page 7

DAMAGES AWARDED

CLAIM AGAINST POWER BOARD SHELTER TREES ROUND ORCHARD TOPPED‘ (By Telegraph—Prens Association I AUCKLAND, 16th November. 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 orchardisl against the board in the Magistrate's Court. The board alleged the trees constituted a danger to public safety in i their contact with a high-tension power line bordering the property. The plaintiff, a Dalmation, Joseph Borich, Blockhouse Bay, claimed £230 damages and '£so for trespass. He was represented by Mr Jenkins, and Mr Terry defended, on behalf of the board. Mr W. 11. 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 rfow had 460 fruit trees. On Bth' March last, while he was absent, workmen notified his wife that they were going to cut the shelter trees but not that >thcy 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 m 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 meant 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. Mis loss over seven years, allowing time for the growth of shelter trees, might be about £3OO, 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 tlie basis of the prosecution;” said Mr Terry, in opening for the defence. “Compensation muJi be paid if loss is |

i : proved. The statute requires seven 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 stale. They were thin at the base where, to afford the bes; 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 Iloskiny, 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 arc 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 1 hnd it difficult to imagine that !he plaintiff will lose to the extent which his witnesses indicate." Judgment was entered for the plaintiff for’damages totalling £l2O, including £25 for trespass, with costs £lO. ai cl witnesses’ expenses £4 15s 6d.