FENCING LIABILITY.

Hauraki Plains Gazette, Volume XXXVI, Issue 4912, 7 December 1925, Page 4

FENCING LIABILITY.

OWNER OR OCCUPIER ? SUPREME COURT DECISION. An important judgment in a case on appeal under the Fencing Act was given by Mr Justice Ostler in the Supreme Court at New Plymouth yesterday. The case was one in which the magistrate, Mr F. K. Hunt, S.M., ga\e judgment against the owner of some land,’ Mrs Rose May, who was sued by John Hale for the half-cost of. a boundary fence. The land was leased under a three years’ agreement, with a purchasing clause, to one Slyfield. During the occupancy by the lessee a boundary fence w,as erected, and on Slyfield refusing to pay, on the ground that he was only a tenant, action was taken against the owner and judgment obtained. The appeal was against this, on the ground that the owner was not the occupier, and that the Act provided that it was the occupier who was liable.

The judge said the case was an interesting one. Respondent and appellant owned adjoining lands. The appellant had leased her land for a term of three years, and that lease Was in force at the time the action was taken. It was clear from the Act that only the occupier of land wajs liable to contribute .to the cost of a common fence. The respondent submitted that the definition of "occupiers” was wide enough to .include the owner of land. After referring to the definition of “occupier” in the Act, the judge said that in his opinion the definition could not be sb read. If it could it would include the owner of every piece of land, even though it might be subject to a lease of 1000 years, and it would equally include everyone who had ever been an owner. This would defeat the very intention o e the Actin the opinion of the judge the defini-

tion meant to include as “occupier” every person who purchased or acquired any land to which the Act applied and who occupied or was entitled to occupy such land. In this case the appellant had the right to occupy her land, because she had parted with that right by the lease. She therefore w ( asi not the ocupier within the meaning of the Act, and consequently was, not liable to contribute to the cost of the fence. If respondent had served his notice on Slyfield he could have recovered from him, or if Slyfield had been unable to pay, then if appellant recovered possession of the land respondent could have enforced his, claim against her under section 18. He failed to do that, and so lost his remedy against Slyfield by non-compliance with the statutory, conduct precedent. Therefore, upon the facts proved, he had no - claim against appellant. The appeal was, allowed, with £9 9s costs on the appeal, and the case was remitted to the Magistrate’s Court to h,ave fixed .the appellant’s costs, in that Court.