SHELTER TREES TOPPED

Otago Daily Times, Issue 23351, 17 November 1937, Page 9

SHELTER TREES TOPPED

A CLAIM FOR DAMAGES DALMATIAN'S SUCCESSFUL SUIT (Per United Press Associationi AUCKLAND, Nov. 16. Losses in an orchard as the result of the topping off 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 that the trees jonstituted a danger to public safety in their contact with a high-tension power line bordering the property. The plaintiff, a Dalmatian. Joseph Borich, of Blockhouse Bay, claimed £230 for damages and £SO 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 his property for 28 years, and a belt of pine trees surrounding tin 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 the v/esterly winds, and plaintiff stood to lose to some extent The plaintiff said the trees were reduced in height by about 25ft and it would take about 10 years for the trees to recover. Some were already showing signs of dying, which meant that they would have to be replaced. The growth of the fruit tree? and the crops was being affected, and the plaintiff expected that 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 the shelter trees, might be about £3OO, and there was always the danger of trees being uprooted. Similar evidence was given by William John Rodger and Phillip Sunde, orchardists, who assessed the plaintiff's notential loss at about 25 per cent. "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, opening the defence. " Compensation must be paid if loss is 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 the power wires—and they did constitute a public danger." Thomas Aldridge superintendent of parks for the Auckland City Council said he inspected plaintiff's orchard in July finding the shelter trees in a very unhealthy state. They 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 verv detrimental effect on the shelter Charles Robert Reedei. commercial gardener and Herbert John Ross Cutler and Ernesl Hosking, nurserymen, said the bell created a draught, which made conditions worse than if the fruit trees were not sheltered at all. " The case would ncvei 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 high, and I find it difficult to imagine that the plaintiff will lose to the extent which his witnesses indicate." Judgment was entered tor plaintiff for damages totalling £l2O, including £25 for trespass, with costs £lO and witness expenses £4 15s 6d.