Los Angeles herald., 1892-03-02
Judge Mckinley Knocks Out
The Tahiti Trees.
The Court Declares That They
Are a Nuisance.
A Menace to the California Orange
Industry.
An Exhaustive Opinion From tho Supe.
rior Court Relating to the Imported
Trees Now at San Pedro-Some
Important Points Raised.

Important IOlnts Raised.
Yesterday Judge Mckinley of the
superior court, rendered his decision in
the case OF the people against E. A..
Meserve ct al. This is the suit growing
out .of the importation OF 1926, 900
orange trees from Tahiti, which were
seized at San Pedro. The suit was
brought to declare the trees, said to be
infected with, scale, a nuisance. The
judge 80 decides in the following
opinion:
This is an action brought by the dis
trict attorney of the county OF Los An
geles, in the name of the people, for the
condemnation and abatement of a nui-
sance, OF certain trees. The complaint
alleges that in June. 1891, the defendants
brought from Tahiti to San Pedro, in the
county of Los Angeles, certain orange
trees, numbering about 325, 900, and
that the same were, and still are, in
tested with scale insects and other pests
injurious to fruit trees. That the horti-
cultural commissioners of the county of
Los Angeles notified defendants that the
trees were so infested, and required
them to eradicate and destroy the insect
pests thereon. That defendants caused
the process of disinfection to be per-
formed upon said trees, but said process
was unsuccessful, and, although fre-
quently repeated, has not eradicated or
destroyed said insects. That among
said insects is scale insect hitherto un-
known in the state of California, which
cannot be destroyed by any process of
disinfection; and that the said scale in
sects with which the trees are infested.
If not destroyed, will be introduced into
the orange orchards of California, and
the orange industry greatly injured if
not totally destroyed. That the said
scale insects cannot be destroyed with
out the destruction of said trees. That
the defendants are contemplating the
removal of said trees into the interior OF
the state of California, and that the said
scale insects would thereby be dis
tributed among other trees, and propa-
gated and spread all over the state of
California. The complaint prays judg-
ment OF the court that the trees be de-
clared nuisance and ordered to be de-
stroyed.
Plaintiff relies, for its right to main
tain the action, upon the provisions OF
the act of the legislature, approved
March 10, 1891, declaring any orchards,
trees, plants or shrubs infested with in
sect pests injurious to plants, trees, ETC.,
to be nuisance; and also upon the
theory that the trees in question are
under the general provisions of the
code, public nuisance, and may be
abated by an action brought in this
manner.
1t therefore becomes necessary for the
court to consider the power of the legis-
lature to adopt this statute, and the
question whether, in the absence of stat
utory provisions, the action could be
maintained.
My attention has not been directed to
any constitutional Limitation which af-
fects the right of the legislature to adopt
q statute such as the one in question.
The statute does not determine that any
specific orchard or trees are q nuisance,
but leaves it to the courts to determine
whether there exists a condition of af-
fairs which will make any particular
trees nuisance, and is in my opinion
constitutional.
The law of nuisance, under our codes,
is practically but re.enactment of the
common law: and while this case is
peculiar in its character and circum-
stances, (being the first OF the kind tried
in the state), and in many respects
utterly unlike any case to be found in
the reports, yet, the duty to be per-
formed by the court is the application
of decisions disposing of cases widely
differing from this as to the facts but
laying down principles which by anal
ogy can be applied to the facts of this
case.
1t is peculiarly the characteristic of
cases under the law OF nuisance, that
they are largely dependent upon sur
roundings. The common law is not
cast-iron system to which every case
must be fitted without regard to its par
ticular circumstances, but is a system
which derives it's beauty and utility
from the fact that it is the condensation
of the wisdom and learning OF centuries
modified from time to time by the cir
cumstances of period and place. In the
consideration of any case which is de-
pendent, to a greater or less degree, up
on the circumstances and surroundings
of the community and state, it is the
duty OF the court to take into considera-
tion the condition and development of
the industries which may be affected by
its judgment, for the purpose of prop
soIlv applying VuO Auic6 VI law 10 tuo
circumstances of the case.
The court, therefore, in applying the
principles of the common law and the
decisions hereunder, takes into consid-
Grafton all the facts to which those de-
cisions and principles are to be applied.
That new conditions and new facts
may produce the novel application of
rule which has not been before applied,
in like manner, does not make it any
less the common law; for the latter is a
system of grand principles, founded
upon the culture and perfected reason of
centuries. 1t would have but little
claim to the admiration to which it is
entitled if 1t failed to adapt itself to any
condition, however new, which may
arise; and it would be singularly lame
if it is impotent to determine the right
Of any dispute whatsoever. Having, as
far as we have gone, met all difficulties
by adhering to its doctrines, We have no
ground to presume that we will have to
go beyond it's precincts for solution of
any which may arise.
SE,vprv i111ro se, hO,,ud fo knnU the