SUPREME COURT

Dominion, Volume 13, Issue 25, 24 October 1919, Page 3

SUPREME COURT

OFFENSIVE SMELL AN INJUNCTION AND DAMAGES SOUGHT In tho Supreme Court yesterday, before His Honour the. Chief Justice (Sir Robert, Stout), the action brought by Maurice i-ldwaul Denniston, surgeon dentist, of Taila, against Alf rod Wallers and Philip AValtcrs. of Taita, market gardeners, was heard. Mr. 'i Keave appeared for the plaintiff, Mr! 11. F. O'Leary for Alfred AValtevs, and Mr. A. 11. Siovwright for Philip Avalters. The plaintiff: in his statement of claim allege 1 that he had suffered damage from offensive and pestilential smells and vapours caused bv defendants to go Uilo the. plaintiff's dwelling house at Park Avenue, Taita, rendering the dwelling unhealthv and unfit for x habitation. 1 o said smi-.lls and vapours were alleged to have been caused by the defendants spreading certain noxious matter commonly known as "pie," the refuse from tlio works of the Gear Meat Company, on tho land which adjoins pbuntilt s premises. Tlio defence of Alfred AValtcrs was a general denial that any injury or damaee had been caused the plaintiif or '.hat 'the dwelling was rendered unlit, lor habitation by tmsoji of the delendanls spreading "pio" on their land, and._ iurther, that if it were proved that planum had suffered-damage from the spreading of "pie" as alleged, then it had not been spread bv Alfred Walters but by the tenant Philip AVillters, who was m occupation of the lnml by agreement in writing dated March 1, 1919. Philip Walters denied all the allegations of Hie plaintiff. ~ ~ , ~ In opening Mr. said that Ihe defendants wero market gardeners at Taita, and tht-y were in the habit ot spreading on their land offal winch was known as "'pie.'" This "pie ' was the refuse fioni the Gear Meat Works and was spread on tho land in tlie early hours of tlie morning. During .the spreading of the "pie," which was tarried <.ut at anv time from 2 o clock in the morning until 7 o'clock, the stench was so powerful that tho living in the vicinity were awakened lrntn their sleep owing to a sullocatMig and ciioltiiur sensation. The 'plaintiff bad made every endeavour to get the dCiendants to abate the nuisance. As far back as October, 1916, about fourteen of tlio residents sent a letter to the defendants requesting them to stop the nuisance. Complaints were made to the Hurt County Council and an order was obtained from the Magistrate, but the ordir was not ell'eclivo in bringing about an abatement ~ , Maurice Edward Denniston, the plain, tiff in t'ne course of his evidence said the smell was nauseating and made a person gasp for breath. lie' was obliged to live in the country owing to his wile s ill-health. He first experienced the smell in 'Deco'iibor, 1916, nnd he understood it was in evidence during the period he was away with the Expeditionary Force. The witness gave details ot the days and date when ho was aroused from his sleep through the overpowering stench. Tho smell reminded hint of a typhoid ward, and was peculiar and distinct. To Mr. O'Leary: Ho was used to smel's and was not super-sensitive. Die "pi-y when being carted along the road left a smell behind which could be smelt lorn? alter the cart had passed. He hid done his best to have t-ie nuisance abated before taking action, and ho was sorry that it had been necessary to bring tho present action. Alice Bell, wife of Peter Bell, of Taita, who redded in the neighbourhood, «ud tho s.-euch from the "pie" when it «s being spread was the worst she had ever experienced. It affected her throat and "ave iicr severe headaches. "When engaged in milking in the morning and tho defendants were spreading tho pie she w.is obliged ro tio a perfume-satur-ated handkerchief over her mouth «;d nose, otherwise she couid not remain in the cowshed. Km' husband and son had to pro'ieet themselves in the same way. The smell penetrated the house and could not be kept out. Her children suffered from sore throats, nnd one of them often went to school without breakfast |v-causo of tho nauseating effect ot tho smell. If the smell were not stopped she and her family would Inva to leavo tho district. To Air. Sievwright: She had lived in the .'.islrict for about 10 years, and the miisniico had existed for the past four years.. . Evidence was also given by John Thomas Collins, road foreman, Lower HuH- AValtcr Thomas Cotton, caterer, Lower Hutt; Prederiok Dertelsen, market cardener, Taita; James Liddle, market gardener, Taita, and Charles Barrlett, carpenter, Lower Hutt. '1 ho latter said he know of one case where 'pie was used in a small garden at Kaiwarra; it was buried about 18 inches, and when the ground was dug up six months later tho "pie" was "puddley" and tho smell was still there. , Walter Kiln-isler said he had lived in the district fov about six years and had been affected by the smell for about two or three years. The smell made him sick, and it was considerably worso than the 'smell from a dead beast. David K. Pritchord, market gardener, said the smell could not bo defined except with a. very strong adjective. Peter Bell, carpenter, said he was ono of the suflereiv. from this smell, and it was a serious matter with him. It affected his children, who went off their J.' Pescini, who lived about half-a-niilo from wheie the defendants lived. Paid he passed the cart taking the "pie to the land and described the smell as being extremely offensive. Tho hearing of tho case ,will be continued to-day. MOTION FOII NEAV TRIAL. A motion for a new trial in tho ease of AVilbam Leonard Butler against Greacen Joseph Black was heard in tlie Supreme Court yesterday, before His Honour the Chief Justice (Sir Robert Stout) and Lis Honour Mr. Justice Chapman. Air. 11. V. O'Lenrv appeared for Black and Mi. L. T. Burmird, of Gisborne, for Butler. The case nroso out of an action for slander heard in Gisborne by Mr. Justico Chapman and a jury. Butler and Black were-directors of the Gisborne Farmers' Co-operative Company. Ltd., and it was alleged that Butler had suffered damage from the defendant falsely and n.aliciously speaking and publishing tho following words to one Prank Griffith, of Manutuke: "Butler is not fit to be on the lwaid of directors. Ho has robbed the company of about .£120." Butler claimed JiIOOO, and tho jury awarded him i'7so. The application to a new trial was made on the ground that, the damages awarded the plaintiff were excessive. After hearing argument the Court reserved decision.