FENCING ACT, 1867.

Wairarapa Standard, Volume I, Issue 43, 28 October 1867, Page 4

FENCING ACT, 1867.

At the request of a number of our subscribers we reprint the " Fencing- Act 1867 " na passed during the late session of the Pr viucittl Council, and now* in lbrco in this Province, Whereas it is necessary to consolidate and •mend the laws relating to fencing within the Province:— Repealing dause, 1 Be it therefore enacted by the Superintendent of the Province of Wellington with the advice and consent of the Provincial Council thereof as follows namely—The Ordinance of Session 8 of the Legislative Council of the Colony numbered 8 called the Fencing Ordinance and the Act of tin Provincial Council Session 1., No. 13 are hereby repealed. Half coat of Fence already erected to be paid. 2. If any person before the passing of this Act shall have erected a sufficient fence dividing his land from the adjoining land the 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 dividing fence between their respective land. Alter notice owner of land may erect 3?ence. 3,The owner of any land not having a sufficient -dividing fence between it or any part of it and the adjoining land tnay by ■writing require the owner of such adjoining land (except such land as shall be held of the Crown fry temporary occupation only) or his agent to assist in making any dividing fence between their respective lands ia equal proportions If the owner of such adjoining land or his agent shall refuse or neglect for fourteen days to assist in ■making or having commenced shall not use ■due diligence in completing fluch dividing Urace after a requisition as aforesaid-shall have been given to him or left for sim.at His usual or last known place of abode or'shall not give., to-the-owner who shall have made such requi*fition a sufficient excuse for not' having complied therewith it shall be lawful forthe owner who shall have given or left such requisition and who shall have made or erected his share 'Of such dividing fence to complete or contract with any other person to complete the other "portion of it. The owner who shall have neglected or refused-or whose agent shall have neglected or refused to assistin making or completing such dividing fence shall be liable to pay to the owner of the land who shall have completed the same half of the costs of erecting or making the whole dividing fence Any necessary expense incurred in cutting a -boundary line through bush for the purpose of erecting a. boundary fence shall on the completion of auch fence be deened an additional part of the •cost of the erecting of the same.

Hall cost ol Fence which shall be erected to be

paid. 4. If any person shall heretofore have erected or shall hereafter erect a sufficient fence dividing His land or any part of it from jmy adjoining land which shall not have been fluty granted by-the Crown or otherwise he ■Md as private property such person shall be authorised to claim and recover from the person to whom such adjoining land may hereafter be granted or leased for any term exceeding three years certain half the value of the said fence or of such part of it as shall divide their respective lands. Owners of land liable for cost of repairs. 5. When anv dividing fence which shall lave 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 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 re-imbursed half the expense of so doing in manner herein provided. lave Fences to be trimmed. 6. In ell cases where the dividingfence shall he a live gerse fence the occupiers of the adjoining lands shall each duly trim and keep in order the aide of the fence next their ownd&fls and in the event of either of them neglj®a&£ to do so then after seven days’notice it shall be lawful for the other occupiers to trim end keep in order such fep'dB v at the expense of the party so neglecting the purpose of making or .repairing any boundary fence or for trimming any live gorse fenegifc shall be lawful for the occupier or owner" of any land or any person duly authorised by him from time to time to enter upon that of the adjoining occupier or owner and no action shall accrue to such adjoining -occupier or owner by reason of such entry or entries for the purpose ofmaking •or repairing any fence. Fences destroyed fee. to be made good. 7. In case any dividing fence shall be destroyed or injured by reason of the falling of timber thereon or by the firing of scrub fern toitoi gorse or flax the owner or occupier .of . the land on which suoh timber scrub fern gorse toitoi or flax shall be standing or growing shall be liable to the whole expense of repairing such fence. Provided that to make such owners or occupiers liable under this -clause it shall be necessaiy to prove that such owners or occupiers had neglected after due notice being given in writing to clear such timber cCTub gone toi-toi fern or flax from off his or their lands adjoining such dividing fence to the diatancc of at least half a chain. Definition of sufficient Fence. 8. JTo fence erected after the passing of this Jta ihaU be considered a sufficient fence unless it CCttmitf Of morticed posts and four rails the a whereof shall not be less than four feet MR the ground or shall if it be made ia any flftj be equal in efficiency to such a fence •pfl frmp add alter the Ist day of June 1871 ho fthcc shall be Considered a sufficient- fence made with the provisions MM IBM m&t. in case of stream dividing properties. 0-.Wh*3 any slfearaor ditch being less than hail a chain iu its average width which does hot form a sufficient fence shall diude two properties and its owner of the land on one

side of the stream or ditch shall after having given the requisite notice to the owner of the land on the other side of the stream or ditch have erected a fence on -his own - land for half the distance be tween.the said properties and the owner of the land on the opposite side shall hpve refused or neglected to complete a dividing fence by erecting a fence on his own land for the other half of such distance then it shall be lawful for the owner of the land who shall have given such notice and erected such, fence as aforesaid and his worknien’to enter upon the land .Jon : the opposite side, of the stfeam or ditch and erect or cause to be erected thereon a fence in continuation of the'fence he shall have erected on his own land for the remainder of the distance between his land-and the land o« the opposite side of the stream or ditch and connect the said fences in such a way as occasion may require and he may deem most adviseahle. Provision in case any owner shall rear live fence

10. If the owner or occupier of any lands either before or after the passing of this Act shall have planted upon any dividing line a live fence :the owner or occupier so .planting and rearing such live fence shall be enabled to recover from the adjoining or owner half the expense of planting and rearing such dividing fence so soon as the, same shall become a sufficient fence between their respective lands within the intent and meaning of clause 8 of this Act Provided always that any sum which may be so recovered shall not exceed the sum of fifteen shillings per chain and the notices as hereinbefore required to be given shall not be deemed requisite nor- apply to the planting of live fences.

Provision'll! case oxriiM be absent or cannot be . „ , found. 11.' When , the owner of any land who shall have/.erected .or shall be desirous of erecting a fence dividing his own from tlie'adjoining land cannot after due enquiry ascertain who is the. owner of such adjoining land or when the mvner-of any* adjoining land-shall be ; absent from the Province or when such owner or his agenf cannot be" found the ‘insertion in a newspaper published in the districfin which such land is situate end 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 requiring him to make orassist iu 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 he 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 shell be required.

Limit of amount to be recovered. 12. The amount to be recovered under this Act tor either making or repairing any fence shall in no ease exceed a sum equal to the half ■of a fair contract price for erecting a post and four rail fence. Fob Determining who is the Proper Person to Contribute towards the Expense of Making or Repairing any Fence. When occupier of freehold liable. 13. Where land shall be in “ bona fide ’’ and benefical occupation but the occupier thereof shall not have a ,grater interest therein than for two years from the time when a contribution towards making any dividing fence shall be demanded the occupier of the freehold shall be tlw party liable to contribute towards the expense of making any such fence as aforesaid And the owner of such land shall at the expiration of the lease of such occupier pay to such occupier a sum equal to the value of the fence so erected at the time of the expiration of such lease. Occupier liable for repairs. 14. The beneficial occupier for any period shall be the party liable to contribute towards the repairs of fencing. This Act not to effect existing covenant or contract. Provided always that nothing in this t AefcV°ntained shall avoid or effect any cove,lS>tSi'contract or agreement relative to fencing fng at the time of the passing of this Act »n any landlord and tenant. Provision for arbitration. 16. 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 sufficiency thereof for the purpose of fences or when any disputes 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 any fence for the purpose of recovering contribution towards the making or erecting thereof or any part thereof such differences and all questions and disputes that may arise upon any other question whatsoever under this Act shall be referred to 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 not agree upon the matter referred to them within one month it shall be referred to ah umpire to be named by such arbitrators previously to entering upon the reference and the decision of such two arbitrators or their umpire shall be final and binding upon the parties iu difference The arbitrators or umpire as the cage may be shall also have power to award by whom and in what proportions the cost of the reference shall be borne If either of the parties in difference shall neglect or refuse for the space of one month after notice in 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 he as conclusive as if the party refusing or neglecting had named an arbitrator vho had joined and concurred therein. ' ~ Notices how when to be given. 17. All notices given under this Act shall be given in writing previous to the ccmmencc-

mcnt Of any of the work as herein authorised to which they respectively relate and no person shall be compelled to erect or construct any of' the fences or work for which such notices are given till the parties giving such notice shall have performed his share of the work for which they are respectively given. - Interpretation clause, 18. In the construction of this Act the word “ owner ” shall be taken to include the tenant in fee-simple a tenant in tail a tenant for life and a tenant for any term of years not being less than two years subject to the enactments referring to the persors liable to contribute to the making or repairing of fences. Short Title, 19. The Short Title of this Act shall be <l The Fencing Act, 1867.”