WELLINGTON FENCING ACT.

Hawke's Bay Herald, Volume 3, Issue 111, 5 November 1859, Page 3

WELLINGTON FENCING ACT.

To the Editor of the HwmTcis Bay Herald, Sib, — In your paper of to-day "Freeholder" writes as follows : — "Now in my opinion, (which any body taking the trouble to do so may shew to be wrong if he can,) there are no means given by the provisions of the Wellington Fencing Act to compel any person not occupying his land , to pay half the fencing of his neighbour's land." In accordance with his permission I will attempt to shew, not only that he is wrong, but that it would not be desirable or even just, that the law should be in accordance with his views. In the first place no one is called upon to pay half the fencing of his neighbour 's land, hut they are called upon to pay half the cost of the fence between the two properties, which is a very material distinction. That any advantage should be given to a non-oc-cupier of land is oleai'ly undesirable. The province requires increased produce, and a non-occu-pier not only does not assist to supply the' 'want, but he locks up the land from others who would, a perfectly legitimate use to make of his capital, but decidedly not one entitling him to any preference. "The Act states that sums recoverable under this act, shall be recovered under summary proceedings, and levied by distress upon the goods of the owner found upon such property unoccupied or otherwise, and any further amount remaining unpaid to-be leviable liysale of a svfficient portion of the, land, to be sold by the Resident Magistrate by public auction." j Well, I should think this very clear and distinct. The land is liable to certain duties, and if those duties are not fulfilled, any property, or if

not that, then a portion of the land itself must be sold to defray the expenses incurred by another party who legally incurs the same in the execution of the said duties, I see no possibility of either Crown Grants or Mortgages under any conceivable circumstances over-riding so clear a law. "Freeholder" says : — "N.ow to this I say, take the case of an absentee who has duly received his Crown Grant and who knows nothing of this Act, selling his land, and the purchaser coming and finding an old colonist in possession, is it iikely that the conveyance of the Resident Magistrate will over-ride the Crown Grant of the Governor ? Or that the Supreme Court will tolerate this singular instance of colonial procedure ?" In the first place, the law knows nothing of "ignorance of the law," every Englishman in the "eye of the law" is supposed to know and understand every law now in existence on every subject ; and as regards the purchaser, even supposing he is a loser by paying his share of the fencing (which requires proof,) lie must remember the old maxim of "caveat emptor." ".Freeholder" writes as if the whole of the land were to be sold to defray the expenses of fencing, whereas it is only so much as will pay the proportion for which the land is liable, and which expense is to a great extent compensated for by the increased value of the land so fenced. However it is clear the Supremo Court can have notlring to do with it. Tlio Crown Grant can only give a title to land, subject to the lazvs of the province in ■which the said property may he s-iiuate, and no holder of a Crown Grant can either sell or mortgage his land so as to place the purchaser or mortgagee in a better position as regards the land than himself, the original holder, even supposing the laws of the province have been enforced to the detriment of the Buid land, which, as I have said before, requires proof. There are few laws, however good, that may not be productive of occasional injury to individuals, and the Fencing Act has no doubt given openings which were not contemplated by the original trainers, but this is not the point in question. The consideration is, whether the said act being law, there is any possibility of evading it, and I think 1 have proved to "Freeholder," — "That there are means given by the provisions of the Wellington Fencing Act to compel any person not occupying his land, to pay half the fencing of his neighboiVs land, (or rather of the fence between the properties.) I am, &c.j . Justus.