FENCING ACT.

Hawke's Bay Herald, Volume 1, Issue 29, 10 April 1858, Page 7

FENCING ACT.

Session 1, No. 13. AN ACT to make further provisions relative to Fencing within Districts of ihe Province. [Assented to Feb. 1, 1854.] WHEREAS it is necessary to make further and other provisions relative to Fencing within the Province : — 1. Be it therefore enacted by his Honor the Superintendent of the Province of Wellington, with the advice and consent of the 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 within any Town or District of the Province, and by the same Proclamation declare the limits of such Town or District. 2. 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 ( 6 ), called the 'Fencing Ordinance,' shall, within the same Town or District, cease to be opeiative. 3. If any person shall, before the passing of this Act, 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 the said land, the half of the value of such dividing fence, or such part of it as shall be available as a fence between their respective lands. 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 animals thereon, and shall not have erected a fence sufficient to protect the 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. 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, have erected a sufficient fence dividing his land from the adjoining laud, the owner ofthe 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. 5. 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 land 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 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 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 such requisition a sufficient excuse for hot having complied therewith, it shall be lawful for the 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 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 assist in making or completing such dividing fence, shall be liable to pay to the owner of the land who shall have completed the name, half of the cost of erecting or making the whole dividing fence. 6. 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 shstll 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 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. • 7. When any dividing fence which shall

have 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 iv equal proportions. 8. 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. No fence shall he 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 mode in any other way, be equal in efficiency to such a fence. All 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. 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 clue inquiry, ascertain who is the owner of such adjoining land 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 laud, requiring him to make or assist in making such fence, shall be a sufficient requisition or notice for the purposes of tliis Act, and the owner giving the same, may proceed to erect or complete such fence, and he 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 be required. 11. The amount to be recovered under this Act, for either making or repairing any fmce, 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 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 sufheiency 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 any fence, for the purpose of recovering contribution towards the making or erecting thereof, or any part thereof, such differences 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 an 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 in difference. The arbitrafors or umpire, as the case may be, shall also have power to award by whom, and in what proportions the costs 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 o*- 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 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 instalment, as to him or them under the circumstances ofthe case and the pecuniary condition ofthe parties, may seem meet. 14. In case it shall be impossible, by distress, to levy or obtain payment ofthe 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. In case any part ofthe 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 skill have been awarded, and all expenses incurred, and to be incurred, in recovering the same, shall be leviable by sale of 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 out 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 r»f Government land in the neighbourhood. 16. A conveyance ofthe land so sold, in the form hereto annexed, signed by the Resident Mcgistrate, or any two such Justice of the Peace as aforesaid, shall vest the absolute property in such land in the purchaser, free from all incumbrances whatever. 17. All penalties enforced by this Act, shall be recovered by summary proceedings, and shall be paid to the Treasurer of the Province for the use of her Majesty, her heirs and successors, for the public use of the Province. 18. This Act shall not apply to or affect any aboriginal native, except in such districts, and to such extent therein, as the Superintendent may, by Proclamation from time to time declare. 19. Where land shall not be in bona fide 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 be the party liable to contribute towards the expense of making any such fence as aforesaid. 20. 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 costs which such owner may have so paid, shall be repaid to him by the oocupier on his completing the purchase, iv augmentation and part of the purchase. 21. Where the land shall be in the bona Jide 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 shall be the party liable to pay the same. 22. The beneficial occupier for any period shall be the party liable to contribute towards the repairs of any fencing. 23. Provided always, That nothing in this Act 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. Throughout the enactments referring to fences constructed of hazardous material, the term "Scrub" shall 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 any 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 fen-

respectively constructed either entirely or in part of Scrub, standing in any town in which this Act shall, by proclamntion, be declared to come into operation, shall within six months from the publication of such Proclamation, be taken down. 25. If any person shall, after proclamation declaring that this 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 or in part of Scrub, he shall forfeit the sum of not exceeding twenty pounds. 26. If any person, having a Scrub fence or shed as aforesaid, upon land in his occupation within the limits of any town in which this Act shall be proclaimed to be in op:-ration, shall not, within six months after publication of such proclamation, take dawn such fence or shed, he shall pay a penalty of one pound per day for every day during which such fence or shed or any part of it shall remain standing. 27. In the construction of this Act, the word "owner" shall be taken to include the tenant in fee-simple, a tenant ia tail, a tenant for life, and a tenaut for any 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.