LOSSES OF STOCK

New Zealand Herald, Volume LXXVI, Issue 23488, 27 October 1939, Page 5

LOSSES OF STOCK

SUIT AGAINST/CEOWN FARMER'S ACT ICM FAILS ARSENIC IN REPOROA SOIL [from our own corrkspo^ijent] HAMILTON, Thursday . Stating that fraud on the part of the Crown had not been shown, the Chief Justice, Sfr Michael Myers, dismissed the petition brought by Martin Charles Drabble, farmer, for the' recovery of £521 as damages for the loss of stock on Crown land in the .Reporoa district containing arsenic in the soil and water. Mr. J!. A. Potter represented suppliant, and Mr. H. T. Gillies appeared' for the Crown. In his statement of claim, suppliant alleged that the property, he leased from the Crown had been misrepresented to him, in that it was described as first-class dairying country. Soon after ho took over the place, his stock became sick, and he lost 17 cows and one horse. After investigations had been made by of!icero of ,the Department of Agriculture, the presence of arsenic in soil and water on the,property had been discovered. The Crown's Case At the_conclusion of suppliant's^case, Mr. Gillies applied for a nonsuit' oil the grounds that the action was one . which was prohibited by the Crown Suits Amendment Act, 1910. Suppliant's case was founded on fraud, and a case of fraud could 'not Ho against the Crown. A second ground was that-there was no evidence of fraud or misrepresentation. His Honor said the nonsuit points would be provisionally over-ruled with leave for renewal later. Mr. Gillies.said the Reporoa district was held as private land until 1921, when the Crown settled returned soldiers on 20,000 acres. The area con- . sisted of swamp land, and. was good for farming. Mr. Gillies pointed out that there was a form of vegetable poisoning in the district due to a weed. As long as certain precautions were taken, the property was perfectly safo for dairying. Arsenic poisoning was not suspected until October, 1937, after Drabble had been* in possession for some time. The Commissioner of Crown Lands and his officers coukl not ha\*o been expected to know of the preseuco of arsenic before then. / Judge's Finding In giving judgment for the Crown, His Honor dealt with the nonsuit point raised by Mr. Gillies, that a suit based on fraud was not one which lay against the Crown. His Honor said"i'ie was prepared to assume, _ although not to decide, that the suit did lie against the Crown, as he was satisfied'in any case that the claim could not succeed. "I should be quite prepared to find as a fact that the suppliant has incurred the loss of at least some of his stock as the result of arsenic poisoning," said His Honor, "but I do not for a minute suggest that all the losses could be attributed reasonably to the arsenic. The presence of arsenic was not known or suspected until October, 1937, while the property was advertised and selected in November, 1935. In order to succeed, the suppliant must show that the Commissioner of Crown - Lands and his officers in November, 1935. when announcing the land for selection, made a statement, which was either false or reckless. Fraud Not Shown - "The commissioner admits quits candidly that, with his present knowledge of the presence of arsenic, he would not describe the property as it was then described," continued the Chief Justice. "He would have to some reference to .the presence of arsenic. I think it would not be fair, proper or correct, .without some such qualification, to describe it as dairying property. "But I cannot say that the description applied to the property was an erroneous one, having regard to the knowledge the c department had in November, 1935. The position.is unfortunate from Drabble's point of view, but his suit is based on fraud, and I am clear that fraud has not been shown." • • •