FENCING ACT.

New Zealand Spectator and Cook's Strait Guardian, Volume IX, Issue 907, 12 April 1854, Page 4

FENCING ACT.

"An A ct to make further provisions relative to Fencing within Districts of the Province." [Assented to February Ist, 1854.] Preamble. Whereas it is necessary to make further and other provisions relative to Fpncing within tbe Province : — 1. — Superintendent to declare the limits of any town or district, and proclaim the operation of this Act within the same. Be it therefore enacted, by his Honor tbe Superintendent of the Province of Wellington, with the advice and consent of tbe Provincial Council thereof as follows, namely, — The Superintendent, whenever it shall appear to him expedient so to do, may, by Proclamation, declare that this Act shall come into operation wiihin any Town or District of the Province, and by the same Proclamation declare the limits of such Town or District. 2. — Upon publication of such proclamation An any town or district, this Act to repeal Fencing Ordinance, Session 8, No. 8. Upon publication of any such Proclamation, this Act shall come into operation within the Town or District to be therein named, and the Ordinance of the eighth Session of the Legislative Council of the Colony, numbered (8), called the " Fencing Ordinance," shall, within the same Town or District, cease to be operative. 3. — l n respect of dividing fences erected before the passing of this Act, how a person to be considered as availing himself of a dividing fence. If any person shall, before the passing of this Ac», have erected a sufficient Fence dividing his land from the land adjoining thereto, and the owner or occupier of the adjoining land shall avail himself of such fence, or any part of it, he shall be liable to pay the owner of the land by whom the dividing fence was erected, or the then owner of tbe said land, tbe half of tbe value of such dividing 'fence, or sucb part of it as shall be available as a fence between their respective land. If any person shall use his land, or permit it, or any part of it, to be used for the purpose of depasturing cattle or other animalsthereon, and shall not have erected a fence sufficient to protect tbe adjoining land from trespass by such cattle or other animals, such person shall be considered as availing himself of the dividing fence, and be liable to contribute to the erection and repair thereof accordingly. 4, —^ person erecting a sufficient dividing fence, owner of adjoining land to be liable for half the value of such part as shall serve as a dividing fence between their respective lands. If any person, after the passing of this Act, and before the Proclamation declaring it to be in operation in any Town or District, shall, within such Town or District, hate erected a sufficient fence, dividing his land from the adjoining land, tbe owner of the land adjoining shall be liable to pay the owner of the land who shall have erected such fence, half the value thereoF, or of such part of it as shall serve as a dtviding fence between (heir resp« tive land. 5, — Owner of any land not having a sufficient dividing fence between it and adjoining land, may require owner of such land to assist in making the same. In case of refusal or neglect of owner so called upon, power to owner requiring fence to complete the same. Liability of owner so refusing or neglecting. The owner of land not having a sufficient dividing fence between it, or any part of it, and the adjoining land, may, by writing, require tbe | owner of such adjoining land (except such laod as shall be held of the Crown by temporary occupation only), or his agent, to assist in making any dividing fence between their respective lands in equal proportion*. If the owner of such adjoining land, or his agent, shall refuse or neglect, tor fourteen days, to assist in making, or, having commenced, shall not use due dilligence in completing such dividing fence, after a requisition as aforesaid shall have been given to him, or left for him at his usual or last known place of abode, or shall not give to the owner who shall have made sucb requisition a sufficient excuse for not having complied therewith, it shall be lawful for the owner who shall have given or left sucb requisition, and who shall have made or erected his share of such dividing fence, to complete or contract with any person to complete the other portion of it. The owner who shall bave neglected or refused, or whose agent shall bave neglected or refused, to assist in making or completing such dividing fence, shall be liable to pay to the owner of tbe land who shall have completed the same, half of the cost of erecting or making the whole dividing fence. 6. — Power to person erecting a dividing fence between his land and Crown land, to claim from person to whom such land may hereafter be granted or leased for a term exceeding three years certain, half the value of such dividing fence. ! If any person shall heretofore have erected, or shall hereafter erect a sufficient fence, dividing his land, or any part of it, from any adjoining land which shall not have been duly granted by the Crown, or otherwise be held as private property, such person shall be authorised to claim and recover from the person to whom such adjoining land may hereafter he granted or leased from any term exceeding three years certain, half tbe value of the said fence, or of such part of it as shall divide their respective lands. 7. — l n ih e case of repairs of dividing fence, the owners of the land on either side to be liable to the costs in equal proportions. When any dividing fence which shall bave been, or shall be, erected, shall be out of repair, or become insufficient, the owners of the land on either side thereof shall be liable to the cost of repairing such fence in equal proportions. 8. — Either owner may give notice respecting such repairs, and on neglect or refusal of the other, may complete the same. Liability of owner so refusing or neglecting. Either owner may give notice in writing to the

other, or his agent, to assist in repairing such | fence, and on neglect or refusal of such lastly mentioned owner or his agent so to do' for the space of seven days, the owner who shall have given such notice, may cause the same to be repaired and made a sufficient fence, and shall be entitled to recover from the other owner half the costs thereof : Provided, however, that if any fence, or any portion thereof, shall be destroyed by any accident, fire, falling of timber, or otherwise, the occupier of land on either side may immediately repair the same without any notice, and shall be reimbursed half the expense of so doing in manner herein provided. 9. — In what consists a sufficient fence. No fence shall be considered a sufficient fence unless it consist of morticed posts and three rails, the top rail whereof shall be not less than four feet from the ground ; or shall, if it be made in any other way, be equal io efficiency to such a fence. Ail rivers and streams of the width of one chain shall be deemed a sufficient fence for the purposes of this Act, and of the Cattle Trespass and Impounding Ordinances. 10. — In the case of an owner of any land who shall have erected, or shall be desirous of erecting a dividing fence, but who cannot ascertain who is the owner of adjoining land, or when such owner shall be absent from the Province, how to proceed, When the owner of any land who shall have erected, or shall be desirous of erecting a fence dividing his own from the adjoining land, cannot, after due enquiry, ascertain who is the owner of such adjoining land, or when the owner of any adjoining land shall be absent from the Province, or when such owner or his agent cannot be found, the insertion in a newspaper published in the district in which such land is situate, and if no newspaper be published in such district, then in a newspaper published in the City of Wellington, of a notice addressed to the owner of such adjoining land, requiriug him to make or assist in making such fence, shall be a sufficient requisition or notice for the purposes of this Act, and the owner giving the same, may proceed to erect or complete such fence, and be entitled to recover half of the value of making, completing, or repairing the same fence, or any portion thereof, in like manner as if such requisition as aforesaid had been given to and received by the owner of such adjoining land. Such insertion shall be made for four successive weeks, if the newspaper be published weekly: for two successive numbers, if published once in every fourteen days. In case the district newspaper be published at longer intervals than fourteen days, the notice shall be inserted for four successive weeks in a newspaper published in Wellington. No such notice or insertion shall be necessary where assistance or contribution towards repairing any fence shall bejequired. 1 1 m — With reference to the amount recoverable under this Act. The amount to be recovered under this Act, for either making or repairing any fence, shall in no case exceed a sum equal to the half of a fair contract price for erecting a post and three rail fence. 12. — In all cases of disputes and differences \ suck to be determined by arbitration, B[C. In order to avoid the cost and inconvenience of summoning witnesses to a distant court, in all cases where there shall be natural boundaries, and disputes or differences shall arise as to the suffi- I ciency thereof for the purpose of fences, or when , any dispute or difference shall arise as to the amount of costs to be paid for completing or repairing any fence, or the value of, or of the sufficiency of »ny fencp, for the purpose of recovering contribution towards the making or erecting (hereof, or any part thereof, such differences bhall be referred lo and determined by the arbitration of two persons, one of whom shall be named by each party in difference, and in case such arbitrators shall uot agree upon the matter referred to them within one month, it shall be referred to an umpire to be named by such arbitrators, previously io entering upon the reference; and the decision of such two arbitrators, or their umpire, shall be final and binding upon the parties in difference. The arbitrators or umpire, as the case may be, shall also have power to award by whom, and in what proportions the costs cf the reference shall be borne. If either of the parties in difference shall neglect or refuse, for the space of one month after notice hi writing shall have been given to him, or left for him at his usual or last known place of abode, to name an arbitrator, it shall be lawful for the arbitrator named by the party giving or leaving such notice, to make an award upon his own judgment, and such award shall be as conclusive as if the party refusing or neglecting had named an arbitrator, who had joined and concurred therein. 13. — All sums how recoverable under this AcU All sums recoverable under this Act shall be recovered by summary proceeding, whether the amount be under or over the sum of twenty pounds. The Resident Magistrate or Justices of the Peace who shall hear any complaint under this Act, may direct the payment of the amount awarded to be made either altogether or by instalments, as to him or them under the circumstances of the case and the pecuniary condition of the parties, may seem meet. 14, — l n case it shall be impossible, by distress, to obtain payment of amount awarded by reason of property being unoccupied, how to proceed at any period within eighteen months, from the date of such award. In case it shall be impossible, by distress, to levy or obtain payment of the amount awarded, by reason of the property being unoccupied, or otherwise, the amount may, at any subsequent period within eighteen months from the date of such amount or any part thereof being awarded, be leviable upon any goods of the owner which may be found upon such property. 15.— Such amount, or any part thereof, remaining unpaid at the expiration of eighteen months, with legal interest thereon, to be leviable by sale of a sufficient portion of land. In case any part of the amount to be recovered shall remain unpaid for the space of eighteen months, the amount due, together with legal interest thereon from the time at which such amount shall have been awarded, and oil expenses incurred, and to be incurred, in recovering j the same, shall be leviable by sale uf a sufficient portion of the land against the owner, or in respect of which such amount shall have been-

awarded, and such sufficient portion shall be set oat by the Resident Magistrate, or any two Justices of the Peace having jurisdiction within the district, upon requisition to be made to him or them by the party entitled to receive the amount to be recovered. Such land shall be sold by the Resident Magistrate having jurisdiction in the district, by public auction, and shall be put up at a sum not less than the upset price of Government land in tht neighbourhood. 16. — With respict to conveyance of the land so sold. A conveyance of the land so sold, in the form hereto annexed, signed by the Resident Magistrate, or any two such Justices of the Peace as aforesaid, nhall vest the absolute property in such land in the purchaser, free from all incumbrances whatever. 17. — Penalties how recoverable, and to whom payable. All penalties enforced by thin Act, shall be recovered by summary proceedings, and shall be paid to the Treasurer of the Province lor the use of Her Majesty, ber heirs and successors, for the public use of the Province. 18. — This Actnot to apply to any aboriginal native except to such extent as the Superintendent may declare. This Act shall not {apply to or affect any aboriginal native, except in such districts, and to such extent therein, as tht Superintendent may, I by Proclamation, from time to time declare. For determining who is the proper person TO CONTRIBUTE TOWARDS THE EXPENSE OB 1 MAKING OR REPAIRING ANY FENCE. 19. — In the case of an occupier of land not having a greater interest than tico years, the owner of the freehold to be the party liable to contribute towards the expense of malting the dividing fence. Where land shall not be in bonafide and beneficial occupation, or where land shall be in bona fide and beneficial occupation, but the occupier thereof shall not have a greater interest therein than for two years from the time when a contribution towards making any dividing fence shall be demanded, the owner of the freehold shall bs the party liable to contribute towards the expense of making any such fence as aforesaid. 20, — Proviso with, respect to an occupier having a right of purchase within the term of two years, and the owner of the freehold having within such term contributed to cards the expense of making such dividing fence ; such contribution on completion of the purchase to be repaid by the occupier to the owner. Provided always, That when an occupier shall have a right within such term of two years, to purchase the land in his occupation, and the owner of the freehold shall within such term be required to, and shall contribute towards the expense of erecting any fence dividing such land from the adjoining land, the coats which Euch owner may have so paid, sball be repaid to him by the occupier on his completing the purchase, in augmentation and part of the purchase. 21. — A tenant whese interest exceeds two years to be the party liable to contribute towards the making offence. Where the land shaJl be in the bona fide and beneficial occupation of any person having an interest exceeding two years from the time at which such contribution toward making any fence shall be demanded, such occupier sball be the party liable to pay (he same. 22. — The beneficial occupier for any period to be the party liable to contribute towards tlie repairing of any fence. Thi beneficial occupier for any period shall be the party liable to contribute towaids the repairs of any fencing. 23. — Proviso with respect to any agreement relating to fencing now existing between any landlord and tenant. Provided always,, That nothing in this Ac! contained, shall avoid or affect any covenant, contract, or agreement relative to fencing existing at the time of the passing of this Act between any landlord and tenant. 24. — Interpretation of the term * scrub* Scrub fence or shed not to be erected in any town. Throughout, the enactments referring to fences constructed of hazardous material, the term " Scrub " sball be deemed to include manuka scrub, branches, or boughs of the manuka or other shrubs, and all other material of a similarly hazardous description. It shall not be lawful for auy person to put up or construct, either entirely or in part, within the limits of any town, any fence or shed, of whatsoever description, respectively of Scrub, all fences and sheds of whatsoever description, respectively constructed either entirely or in part of Scrub, standing in auy to*n in which this Act shall, by proclamation, be declared to come into operation, shall, within six months from the publication of such -Proclamation, be taken down* 25 — Penalty for so doing. If any person shall, after proclamation declaringthat tbia Act shall come into operation in any town, construct within the limits of such town, any fence or shed of whatever description respectively, either entirely er in part of Scrub, he shall forfeit the sum of not exceeding twenty pounds. 26. — If erected, penalty for not removing the same within certain time. If any person, having a Scrub fence or shed as aforesaid, upon land in his occupation within the limits of auy town in which this Act shall be proclaimed to be in operation, shall not, within six months after publication of such proclamation, take down such fence or shed, be aball pay a penalty of one pound per day for every day during which such fence or shed or any part of it shall remain itauding. 27.— Interpretation of the word 'owner. 1 In the construction of this Act, the wonl "owner" shall be taken to include the tenant in fee-simple, a tenant in tail, a tenant for life, and a tenant for anj term of years not being less than two years, subject to the enactments referring to the persons liable to contribute to the making or repairing of fences.