TIRAU RABBIT-FENCE CASE.

Putaruru Press, Volume VI, Issue 252, 30 August 1928, Page 1

TIRAU RABBIT-FENCE CASE.

RESERVED JUDGMENT. Defendants Win Major Issue. Smith Shares Fencing Cost. More Faulty Law Drafting. Judgment has been given by Mr. S. L. Paterson, S.M., in the case m which Robert Henry Bailey, of Auckland, owner of a farm at Tirau, on the Tirau-Okoroire road, served notice on Thomas Bottomley and C. B. Smith, owners of adjoining farms, to make their boundary fences into rabbit-proof fences. Mr. W. C. Hewitt (Hewitt and Bead) appeared for the plaintiff, and Mr. G. G. Bell (Hampson and Bell) for defendants.

Defendants have won the case on the major issue involved, but on the secondary issue' Smith is ordered to share with the plaintiff half the cost of a boundary fence.

The judgment makes interesting reading, particularly in its exposition of the relationship of the Fencing; Act to common law rights of the subject. There are also courteous but nevertheless cutting referenees to ( faulty drafting of the laws, making the task of the interpreter thereof unnecessarily difficult: — , “These two summonses, which the. parties agreed should be heard together,” states the judgment, “ are in respect of claims under the Fencing Act, 1908, for the conversion to rab-bit-proof fences of the existing fences between his land and the adjoining lands owned and occupied by the defendants, and also in the case of Smith for the repair of the existing fence. The defendants have 'duly served cross notices objecting thereto.

“ The plaintiff’s property, -which is I situated in the Tirau district, consists I of 940 acres of improved land, -which I is in grass and has been top-dressed. < The block is irregular in shape and the lands of the defendants abut on a comparatively small part of his boundary, tie has already erected a rabbit-proof fence along part of the road boundary of his own property and property of his wife’s adjoining it, to the north. Bottomley’s property comprises 286 acres abutting 7ft chains on part of the western boundary, and Smith’s property comprises 2000 odd acres abutting 80 chains on part of the southern boundary. Both these properties are only partly improved and appeaT to afford a certain amount of cover for Tabbits. “The plaintiff alleges that unless the fences between his land and that of the defendants are made rabbitproof his land will become infested with rabbits from these lands. The defendants, on the other hand, say that rabbit-proof fences are not necessary; that they are of no benefit to them; that their lands can be kept clear of rabbits by appropriate means; and that at the present time there are more rabbits on plaintiff’s property than on theirs. “ The relevant section of the Fencing Act, 1908, is section 15 as amended by section 4 of the Fencing Amendment Act, 1922, and is as follows :

“ 15. If the question in dispute relates to the erection of a rabbit-proof fence, or the conversion of a non-rabbit-proof fence the magistrate shall take into consideration the condition of the rabbit pest in the district and the possibility of the land occupied by the person giving the notice becoming infested by rabbits from the adjoining land. If the magistrate decides that such considerations do not warrant the receiver of the notice being required to contribute half the cost of such erection or conversion then: (a) The giver of .the notice may at his own cost erect/convert the fence and may at any time remove the wire-netting affixed by him for the purpose of such conversion and at all times deal with such wire-netting as his own property; (b) the receiver of the notice shall be liable to contribute a sum equal to one-half cost of erecting a sufficient non-rabbit proof fence (unless one already exists), together with such additional sum (if any) as the magis-

trate, having regard to all the circumstances aforesaid, consider equii able; (c) the receiver of the notict shall also be liable to bear the half cost of repairing such fence as a rab bit-proof fence until the wire netting is removed as aforesaid.

“ The amending Act of 1922 marks a departure from the policy of the Fencing Act. This Act, while it altered the common law rights ana liabilities of adjoining occupiers (there being at common law no general obligation to fence) was based ] upon mutuality and the equal interests of adjoining occupiers in the new property created by the erection of a boundary fence under the Act. This was clearly exemplified in section 15 of the Consolidated Act, which in terms made the liability of an adjoining occupier to contribute ; towards the cost of a rabbit-proof fence depend upon the benefit he would derive therefrom. The amendment of 1922 repealed this and makes the liability dependent upon ‘ the condition of the rabbit pest in the district and the possibility of the land occupied by the person giving the notice 'becoming infested with rabbits from the adjoining land,’ so that a person may now be called upon to pay a large sum of money towards .something from which he will receive r.o benefit whatever. No doubt the legislature had good grounds for such an alteration, and there are no coubt cases where the imposition of such a liability would be justified, but the enactment makes such an inroad into the common law rights of the subject in this respect that it should be applied with great caution.

“ As the words used in the section quoted above are general words more general perhaps than one would wish in a Statute interfering with common law rights—it is desirable that some' principles be laid down upon which the court should act in enforcing it. At the same time, however, it is clear that every case must be decided upon its own merits. Be-

fore the court would be justified in making an order under the section against an adjoining occupier it should be established by satisfactory witnesses that: (1) The condition of the rabbit pest in that district is such that it constitutes a serious menace to the farming community, having regard to the nature of the farming operations carried out in the district. This may well vary in different districts, e.g., in agricultural districts and in pastoral districts. In this connection regard should be had not only to the present condition of the pest, but also to its probable continuance, increase or decrease. (2) That the condition of the pest is such that it cannot be efficiently controlled by other appropriate methods, e.g., poisoning or trapping. It would be obviously unfair to compel a man to expend a large sum of money for a purpose from which he would derive no

benefit when the same end could be gained by other methods. If the pest can be controlled by other means protection is afforded to the person giving the notice by the Babbit Nuisance Act 1908, section 23, which gives him the right to require the inspector to inspect such lands with a view to the exercise of all the powers and authorities conferred by that Act. (3) The possibility of the land of the person giving the notice being infested with rabbits is so substantial as to amount to probability. (4) The menace to that person’s land should be from the land of the receiver of

the notice. I think that the use of the words ‘ the adjoining land ’ having regard to the general scheme of the whole enactment, means the land occupied by the receiver of the notice. Also, it would be contrary to natural justice to compel a person whose land was free from rabbits to contribute towards a rabbit-proof fence merely because there was a menace to the land of the person giving the notice from other adjoining lands. “ I have now to apply these principles to the present case. A number of witnesses were called on both sides, many of whore, were more or less interested persons. In coming to a decision I have relied largely upon the evidence of Mr. Morris, a stock inspector, and a disinterested person who was called for plaintiff, but who appeared to me to give his evidence very impartially. He says that the properties are in what is looked on as a badly-infested area. In

April last, when he had inspected the locality, it was badly infested c:i account oi tne dry season, and at the time he had thought that the j.iaintiif’s farm shouia be rabbit-proof fenced. He thought that it was possible to cope effectively with the rabbits on defendants’ lands, but that m the past they had been let go. Plaintiff’s land would become infested notwithstanding his efforts unless the adjoining occupiers cleared their land. On a more recent visit he had been agreeably surprised at what had been done towards clearing defendants’ properties, and on that occasion he had seen more rabbits on plaintiff’s land than on theirs’. There were other lands where the rabbits came from, and the area on the north-west was rabbit-infested. The usual thing in dairying country was to fill rabbit burrows and fumigate. At the present .time there was no menace to plaintiff’s property from defendants’ properties, nor would there be so long as the present conditions were maintained and defendants kept up the same efforts to keep their land free from rabbits.

“In view of this evidence, which comes from the plaintiff’s own witness, I do not think that the rabbit pest in the district is a serious men- j ace. The district is a dairying one, and plaintiff has, except for a short interlude, been farming his property for 21 years, and has not thought fit to take action earlier. His reason for not doing so is that he thought that the rabbits w.. uld be extermin- j ated. The defendants’ lands had I been in the hands oi speculators, and, as was said by more than one witness, had been let go. Indeed, the defendant Smith has only been in occupation since April last, and since then there can be no doubt the pest has been under control. The plaintiff’s hope that the rabbits would be exterminated shows that he considered that they could be. That such opinion was not baseless is shown by what has been done since April. I think the real cause of the rabbits being troublesome is due to the fact that the defendants’ lands were in the hands of speculators and had heen let go. The plaintiff, when asked about an extensive frontage to the north east, said that he agreed with his neighbour, that they could deal with rabbits coming in from that direction. If this be so I see no reason why he cannot deal effectively with the opposite side. I cannot see that there is any greater menace from the defendants’ side than from this. There is also some evidence from a trapper, called for the defendants, to the effect that rabbits are decreasing in the district. “ I find, therefore, that the condition of the rabbit pest in the district and the possibility of the plaintiff’s land becoming infested with rabbits from the adjoining lands, do not warrant the defendants being required to contribute the half-cost of the conversion of the fences.

“In view of this finding, paragraphs (a), (b) and (c) will now come into operation. This raises the question whether paragraph (b) applies to the case of conversion of an existing non-rabbit proof fence, and if so, what, having regard to the consideration set forth in the section, would .be an equitable contribution. “ After careful consideration of the section, I think that that paragraph applies only where no sufficient non-rabbit-proof fence exists. The inteipolation of the words ‘ unless one already exists ’ followed by the words ‘ together with ’ and the qualification of the noun ‘ sum ’ by the adjective ‘ additional ’ appear to me to show clearly that the paragraph is intended to apply only where no sufficient non-rabbit-proof fence exists, and one is erected pursuant to notice under the Act. Were it intended otherwise the legislature would have used other more explicit language. “ The summons against Bottomley will therefore be dismissed with £3 3s solicitor’s fee and disbursements, ana witness’ expenses to be fixed by the clerk of the court. “In the case of the summons against Smith, there is the additional claim for contribution toward the cost of repairing the existing fence. The evidence shows that the fence i,s over 20 years old and requires repairing. This, indeed is not disputed, though Smith says that he had been in occupation of the property only

five days when he received the notice on which the summ. ns is based. He is apparently a little sore at this, but apparently some notice had, already' teen given to his predecessor. Plaintiff has submitted an estimate of the lepairs required and the costs thefbof, which appears to me to be .very reasonable. I find, therefore, that the reasonable and proper cost of such repair is the sum of £3l 19s, and that it should he borne by the plaintiff and the defendant in equal shares, that the fence should be repaired within three months from the date thereof in the manner shown in the estimate put in in evidence by' the plaintiff. “As the defendant has succeeded cn the major issue in the action I allow him £1 11s 6d solicitor’s fee, together with disbursements and witness’ expenses (other than his own expenses) to he fixed by the clerk of I the court.”