The daily morning journal and courier., 1906-09-10
DAMAGE BY DEER.
State Must Compensate Mir. zola of Glastonbury for Loss of Peach

[
 Glastonbury for Loss of Peach
 Trees.
 AttorneylGeneral William A. King has given awritten opinion on the | question of the liability of the state for damages to crops by wild deer. The communication containing the opinion is addressed to the Hon. George T. Mathewson of the commission on fish,
 cries and game.
 The attorney general summarizes the circumstances of the case on winch the question submitted to him was based as follows: "One Joseph Zola, a farmer living in the town of Glaston- bury, Is the owner of large peach or-
 chard, containing four or five hundred peach trees The land embraced in this orchard is cultivated in accordance
 with approved methods of peach cul- ture. The trees were set out by Zola and have been cared for and nurtured
 by him for some time, although none of the trees have attained the, fruit bearing age Some time during the present summer wild deer entered this peach orchard and destroyed nearly all the trees. A claim is pending before amounting to some hundreds of dollars, sustained as above, hould be paid In accordance with the provisions of the appraisers that the damage
 chapter 10S of the public acts of 1905." :"
 General King then quotes the act and says: ''The first inquiry is whether,
 under the language of this act, the owner of peach trees destroyed by wild deer, Is entitled to any compensation for the damage so sustained. The law 1 provides for compensation for damage
 to crops grown on cultivated land l. |. The state, under severe penalties, protects deer. As result of thls poli- cy, inaugurated some years ago, these animals have become numerous and the owners and occupants of cultivated land have suffered. and will continue to suffer damage. That fruit trees are frequently damaged and destroyed by deer, and that the so-called legal fence does not protect the orchards from incursions of these animals, are matters of common Knowledge. The object and intent of chapter 1OS was to compensate farmers for this dam age which flows from the policy which the state has adopted, provided the damage Is sustained to what grows on cultivated land think 1t was the purpose of the state to protect the farmer from loss arising from the de- predictions of deer on his cultivated land l think 1t was the purpose of the state to protect the farmer from loss arising from the depredations of deer on the cultivated lands and that the language of the act may be fairly constructed to effectuate that intent, whether the d amaze was done Is to the matured crops or 10 the plants, shrubs, vines, or trees, which produce crops l therefor advise yo uthat the claimant in this case is entitled, by vir- tue of the provisions of chapter 10S of the public acts of 1905, to compensa- tion for such damage as he has actu- ally sustained by reason of the des- ltrutcion of his peach trees.'
 Attoriey General Kings opinion also says: You further ask me to advise you in relation to the rule for deter minig such damage and whether or not you may considehr the probable crops, and the value therof that the trees in coming years might have pro- duced htd they not been destroyed. The claimant in this case Is entitled to receive as compensation for his damage l cUpb cum a +ha difference between the value of the peach trees as they were before the deer attacked them and their value af- ter the damage had been inflicted. In computing this sum you would not be warranted in speculating as to the value of the crops which might be pro- duced in coming years had the trees been unmolested, He is entitled to the actual loss which he has sustained as stated above.
 "The act provides that it shall be the duty of the fish and game commission CT to assist" the appraisers appointed | by the selectmen in determining the damage and you ask me to advise you as to the meaning of the word assist" dn this connection. When the amount of damage exceeds twenty dollars, the fish and game commissioner becomes one of the appraisers, with powers equal to that of an appraiser appoint ed by the selectman. Such fish and game commissioner would, however, be acting as an official of the state and his compensation for such service should be paid by the state, as though he were engaged in any other duty of his office.
 "A cursory reading of chapter 1OS, above quoted, reveals amblguities which becomes emphasized as the act is more closely studied. In view of this I think I ought to say to you that it is incumbent on the fish and game commissioner, as a state official, to be governed by the opinion of the attor- ney-general construing the act, and the same would be true of the comp troller of the state, but as the attor- ney-general has no power to advise town officials, the appraisers appointed | by the selectmen are not bound by each opinion, except so far as 1t may commend itself to them as a correct