Los Angeles herald., 1892-03-02

duction and shipment of oranges is very
great; and that the spread OF any insect
pest injurious to citrus trees must nee.
essarilv result in serious injury to that
business, and in great loss and destruc
ton Of property.
That orchards and trees infested by
scale or insect pests injurious to vegeta-
tion, and which will easily spread to
other places, must be nuisance prma
facie, seems too clear to require discus
sion, and would not receive it at the
hands of this court but for the fact that
this is the first case of this kind.
The law of nuisance is then defined,
and copious and numerous extracts
from decisions relating thereto given.
1t has been argued by defendants
counsel that prospective nuisance will
not be abated, and the authorities cited
case if applicable to it's facts. But the
fallacy Of their argument is that in the
cases cited by them no considerable in
jury could be done until the actual ex-
istence of nuisance could be shown.
In the case at bar, before damage could
be actually shown, it would be necessary
for the scale insects in question to be
disseminated through considerable
portion of the orchards of the state and
their propagation have reached stage
at which it would be extremely difficult,
il not impossible, to check and eradl-
cate them.
1t appears to me that this case be-
longs to that class in which, if all the
allegations of the complaint are true, a
damage will be inferred, and it is not
necessary to wait until it is actually
done. 1t is similar, in that respect, to
the cases in which diseased animals are
taken to public places when there is
danger ofsinfectiOn to the cases of the
storing OF explosives, and to the cases of
condemnation OF dangerous buildings
and places likely to be injurious to the
health OF the community-in all Of
which the abatement of the nuisance
rests merely upon the reasonable appre-
hension of danger. The fact that the
trees are at San Pedro does not prevent
their being considered an existing nuis-
ance, as the evidence shows that the
Larvae of the scale may be carried by
birds, insects and the winds to distant
portions Of the county and state.
The evidence in the case shows that
at the time of the arrival Of the trees at
San Pedro they were infested with eight
different varieties of pests, and that
subsequently they were treated six
times with different processes for the
destruction of the scale; that the treat
ment was successful asyto all kinds ex.
cepJ species of scale hitherto unknown
in California called the mining scale or
Chinaspis biclavis; and that all efforts
to eradicate this scale have been unsuc-
cessful, and seem to have been aban-
doned by defendants.
The evidence with regard to this scale
is entirely that of expert witnesses, who
never having seen it before are unable
to testify positively as to it's effect. other
than from their opinion derived from
familiarity with the cultivation of the
orange, from experience with the other
scale insects similar in character with
which orange trees are infested, and
from their observation Of this insect
found upon the trees in question. The
evidence, and the inspection of the
court, however, show positively that
the mining scale derives it's nutrition
and support entirely from the trees, and
consequently must be injurious in a
greater or less degree. The expert wit
nesses all agree in the opinion that it is
injurious to the health of the tree, and
that if introduced into the state it would
occasion great injury to the orange
orchards.
Prof. D. w. Coquillett, practical
entomologist and agent of the depart
ment of agriculture, testified that he
had made an examination of the trees
at San Pedro, and found the mining
scale upon them in healthy condition
on the day cefore the trial of the cause
that he did not know OF it's existence
elsewhere in the state; and that there
could be no doubt about its being detri-
mental, living at the expense of the
tree. He was OF the opinion that the
scale might be destroyed without the
destruction of the tree by some process,
but was unable to give any method by
which it could be done.
Alexander Craw, quarantine officer of
the state board of horticulture, testified
that he had inspected the trees eight or
ten times, examined the scale in question
and found the live scale and larvae. In
his opinion the mining scale could not
be destroyed without destroying the
trees. 1t was, in his opinion, more
dangerous insect than the cottony cush-
ion scale, and would be very injurious
to the orange industry.
The other witnesses testified substan-
TALLY to the same opinions as those
given by Mr.. Craw.
The trees in question, now reduced in
number to about 10000, are contained
in crates at San Pedro, and the evidence
shows that in an examination of the
trees at this time live scale is found on
only portion of the trees, but that a
thorough examination would require
from five to ten minutes to each tree.
The evidence established all the alle-
cations OF the complaint, being only
open to the objection that it is to great
extent merely expert opinion. But, un-
der the circumstances, that is the best
evidence of which the case is suscept-
ible. This evidence is practically un-
contradicted by the defense, as no wit
ness has been produced who claims to
know any process by which the scale
can be destroyed or that it is not in
furious.
The defense claims that the trees
should be separated, and only those
upon which the scale are found be de-
stroyed. There is no doubt that the po-
sition OF the defendants is correct, that
in abating nuisance no more property
should be destroyed than is absolutely
necessary for that purpose. But in this
case the situation of these trees is such
that there is no certainty that all are
not infested, and if such separation can
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