GUTTING DOWN TREES

Southland Times, Issue 19657, 6 October 1922, Page 6

GUTTING DOWN TREES

ACTION AGAINST ORCHARD INSPECTOR. AN INTERESTING CASE. (Per United Press Association.) AUCKLAND, October 4. The first case of the kind heard in the Dominion under the “Orchard and Garden Diseases Act, 1908,” has commenced at the Supreme Court, before Mr Justice Herdman and a special jury of four, George Herbert Guy, linotypist and owner of an orchard at Henderson, sued John IX’. Collard, inspector of orchards at Auckland, on the grounds that between February 17 and March 1922, the defendant wrongfullycut down 175 fruit trees in plaintiff's orchard, and therefore diminished the value of the land by not less than £4OO. for which amount and £5O general damages judgment was sought.

The defence practically amounted to a reply that the Inspector between the dates mentioned, had caused to be destroyed certain diseased apple and ifSTU trees on the land, in exercise of the powers conferred upon him by the Orchard and Garden Diseases Act, and that 'he was protected in such action by virtue of section 13 of the Act. As the defendant relied on the Act for indemnification, the case for the defence was taken first, counsel for the defendant, addressed the Court at length on the provisions of the Act, and asserted that complainant had not only allowed his orchard to become a serious danger in the district, but was also given every opportunity to comply' with the provisions of the Act. He did not do so, but openly flouted the inspector and the Department. His Honour: Hie defence is that the defendant is a departmental officer, acting under authority. The defendant gave evidence as to the condition of the orchard since December 1919. He said that several notices were sent asking the plaintiff to clean up his orchard and comply with the Act, to which the plaintiff replied that it was difficult to get men to do the work, and witness offered to find a man in January. This year, following a complaint, witness visited the orchard and found it to be in. a disgraceful condition, there l>eing no one on the property, which, was three acres in extent. Subsequent someß steps were taken by the plaintiff, but defendant was not satisfied.

In reply to His Honour said the only effective way was to destroy the infected parts and the fruit. Absolutely only the infected parts and fruits were destroyed. The 175 trees, for the most part, were all cut above the first fork, which would enable grafting to be done, and would give a clean orchard, and a better class of apple. Mr Johnstone said the evidence would show that only one disease existed in the orchard, and tHat was the codlin moth. If there were other diseases, as was suggested, they must have been present in negligible quantities and not such as would justify the destruction of the trees. Guy had from the time he acquired the orchard in 1919 employed labour, and spent money on the place, and in two seasons had spent upwards of £lOO in draining, ploughing, spraying, and generally improving the orchard.

Plaintiff gave evidence on the lines of counsel’s address. When he received the first notice from the Department, work was going on on the place. Chi receiving another noiice in 1921 he undertook to spray, and in January last the work was done to a certain extent. This spraying continued until the day before the Department's officers called to jyit down certain trees. He had assured defendant that none of the fruit would be sold owing to the disease in the Two-thirds of the apple trees Were cut down. Inspector Collard subsequently said the destruction was for codlin moth. AUCKLAND, October 5. In the orchard case the jury, after half Jan hour’s retirement, returned a verdict in favour of defendant. It found that plaintiff had not. done all that was necessary to eradicate disease from the orchard or prevent the spread of disease, and that the measures taken by the defendant were necessary to eradicate the disease.