OAG 40-56.

• Case Date: September 11, 1940
• Court: Oregon

Oregon Attorney General Opinions 1940. OAG 40-56. 67OPINION NO. 40-56 [20 Or. Op. Atty. Gen. 67]Neglected orchards infested with codling moth under such conditions that such infestation is liable to spread to adjoining orchards constitutes a public nuisance and is subject to abatement by destruction.September 11, 1940.Hon. John Baker, District Attorney,Hood River County. Dear Mr. Baker: I have received your letter of September 7, 1940, with which you enclose a letter written to you by your county fruit inspector. You have asked me to advise you relative to the matters of inquiry therein set forth. It appears that in Hood River county there are numerous orchards where spraying has not been done in this or last year and which have been otherwise generally neglected. It further appears that these orchards are infested with codling moth. Because of such neglect they have thus been responsible for serious damage to other and adjoining orchards. Two principal questions are presented:

(1) Can these orchards themselves be legally destroyed, in view of the fact that codling moth affects only the fruit?

(2) Can legal action be initiated at this time to bring about the condemnation and destruction of such orchards?

Under the conditions assumed above, the fruit trees and orchards referred to are public nuisances, by virture of section 6, chapter 89, Oregon Laws, 1937, as amended by chapter 104, Oregon Laws, 1939.68Such provision of law, so far as pertinent to the present question, is as follows:

"* * * Any and all * * * orchards, * * * trees, * * * fruit * * * found infested * * * with any insects, pests, * * * or with eggs or larvae liable to spread to other places or localities, or of such nature as to be a public danger, hereby are declared to be a public nuisance * * *".

In my opinion, the fact that the codling moth attacks only the fruit borne by the trees in such orchards in no way affects the right of the court, under the further provisions of the above-cited provision of law, to order the destruction of the orchard. I am informed that the codling moth lays its eggs on the fruit, and that from such eggs a worm is hatched which feeds on the fruit until it is full-grown; that when full-grown, the worm leaves the fruit, either before or after the fruit falls from the tree and then enters the bark of the tree where it hibernates...