FENCING OF LAND.

Hawke's Bay Herald, Volume 11, Issue 855, 2 July 1867, Page 2

FENCING OF LAND.

A Bill to facilitate the Fencing of Land. BE IT ENACTED by the Superintendent of the Province of Hawke's Bay, with the advice and consent of the Provincial Council Council thereof, as follows : — 1. The short title of this Act shall be "The Fencing Act, 1867." The term " Principal" in this Act shall include a freeholder ; a tenant o|her than licensee of the Crown, having a right of purchasing the land affected by this Act; a leaseholder having two years of bis term unexpired from the date of his giving or receiving a notice to fence 5 and the agent, attorney, or manager of any of such parties. 2. The term "notice" shall mean— (1.) In the case where the ownership of unoccupied land sought to be thereby affected cannqt.be ascertained after enquiry at the Land v Office and Land Kegistry Office in % Napier; or, where the owner is. ■ absent from the province, ,an advertisement inserted for foutsuccessive . weeks in a newspaper published in, Napier. (2.) In all other cases, written notice, attested by a Justice of the Peace left at the homestead, or 'delivered to the occupier, or ostensible agent, pr manager of the land sought to be affected. l The term "fordable river" shall mean river, stream, or any water ordinarily^ fordable by sheep. . \ A fence shall include — (1.) Stone wa11...'.. (2.) Four-rail fence. (3.) Ditch and bank fence. (4.) Wire fence. (5.) Paling fence. (6.) Any other natural or artificial obstacle which shall be deemed, from time to time by two justicesof the peace sufficiently cattle and sheep proof. 3. Wherever the lands of two principals are conterminous, or only separated by a highway or river, ordinarily fordable by , sheep, each of them may mutually require the co-operation of the other for making a fence between them. And for this purpose either principal may give notice to the other of a reasonable appointment for personally laying off the line of such fence, naming in. . such notice a consenting arbitrator, to act as his representative, in case of any dispute or contention, whereupon such other principal shall appoint another consenting arbitrator to act on his, such other principal's, behalf, if necessary; 4. If within 28 days after service of the first-mentioned notice, the principals cannot agree inter se as to details, either of them may apply to the Resident Magistrate for the district, or to two or more Justices of the Peace, assembled together to appoint a . consenting umpire ; provided that reasonable notice of such application be given to the other side. The arbitrators and umpire shall severally enter into a bond to forth-, with view the premises and decide on the position and nature of the fence. 5. Each principal shall sign an arbitration bond, which may be made a rule of the Supreme Court. 6. If either principal or his arbitrator (representative) fails on demand to execute such bonds as are outlined in the Schedule hereto marked , all the functions intended by this. Act to be referable to arbitration, shall become vested in the umpire solely. 7. Each principal shall pay the costs of his own arbitrator and half the costs of the umpire, including the costs of staking out the line and of any surveying expenses incidental thereto. 8. The arbitrators or nmpire shall not be bound to follow a strictly conterminous line, but may encroach more or less on the land of the principals, upon such terms and conditions as to compensation and contributory expenses as they may think fit, and may decide what portion of the fence shall be executory by either principal. 9. Wherever the arbitrators or umpire, shall adjudicate the dividing. fence to intercept portions of the land of either principal,' such intercepted portions may be awarded to be neutral land, as between such principals, so far as regards any cattle trespass or right of impounding. 10. So soon as the line of fence has been adjusted each principal may proceed to fence accordingly, with mutual liberty to enter on each other's land for all incidental purposes. And if on reaching the point assigned for the junction of the contributory portions, either principal shall find the pbr- . tion of the other principal uncompleted, then the principal who shall have performed his portion may proceed to continue the fence at the cost of the defaulter. Provided that the cost shall not exceed a reasonable estimate for such fencing. 11. When a fence has been or shall be

erected on land abbutting on Grown land or land not individualized under any native lands Act, the liability fov contribution to such fence, shall be deemed to have been ov fc? &<3 suspended vmtft such land bueamo or shall become vested in a purchaser or lessee lor the term of more than two years, which purchaser or lessee his heirs executors or assigns shall thenceforth be liable bo the omiec &x tftfc time being of such fe»DB for the moiety thereof, upon payment of which it sball become a party fence. Meantime ths licensee if any of such Crown land shall pay\to such owner interest at the rate of per centum, per annum on such moiety. 12. The purchaser of any Crown land open for selection abutting within 2 chains of a private fence shall have no claim for trespass beyond the nominal damages in Schedule A of Impounding Act untill he shall have fenced his own confines so far as they may be parallel to or within two chains of such private fence nor shall he recover until them any special damages for linpunding cattle belonging to the owner of the private fence. 13. When any dividing fence shall become insufficient for want of repair the adjacent occupiers for the time being shall be mutually liable to each other for such repairs in equal proportion. Provided that the occupiers effecting the repairs shall have first given seven days notice to the other of such repairs being required except in urgent cases caused by floods tempest fire or accident where' no such notice shall be required. 14. In default of the occupier recourse may be bad to 'the principal who would at the time be liable for the moiety of erection in the case of an original fence. 15. All sums of money recoverable under this Act may be sued for in any court of competent jurisdiction. 16. Provided that if the owner of the land in respect of which any sum of money for fencing purposes sought to be recovered be not resident within the Province of Hawke's Bay any summons issued with a view to obtaining- judgment for such sum may be served upon the agent or manager of such owner or by affixing such summons on some conspicuous place on such land. 17. The amount of any-such judgment may be leviable upon the chattels goods and efteets of any purchaser lessee or occupier of the land in respect of the fencing whereof such judgment has been recovered at any time within 18 months of the date of such judgment. If the amount of such judgment and costs shall be unsatisfied for the space of 28 days after the same ought to be paid the holder of such judgment may fill up and sign a memorial as nearly as may be analogous to. the form given in Schedule A of "The sale for non-payment of Rates Act 1862" and may register such memorial in the Register of Deeds for the Province of Hawke's Bay or by way of inhibition in the Register of land under "the Land Registry Act 1860," or in both the said registers for the same purposes and with the like effects, as are declared in the said sale for non payments of Rates Act in respect of arrears of rates registered by way of equitable charge. Thenceforth the holder of such judgment may proceed in dealing with the same to avail himself of all the provisions contained in the said " sale for nonpayment of Rates Act 1862," in respect of Land saleable und«sr direction of the Supreme Court by virtue of such Act. Every equitable charge created by this Act in accordance with the provisions of the sale for non payment of Rates Act 1 862 shall have priority over all other inctimbrances whatsoever whether registered or not except Crown Debts, Provided that every Mortgagee or Incumbrancer may tack or^ to his security or securities any sums which he may advance with or without the consent of the mortgagor in redemption of any liabilities for fencing. 18. Where land sought to be compulsorily fenced under this act ia held by a tenant having- a future . option of purchasing the same or by the grantor of a lease of which more than two years shall be unexpired from the service of notice to fence, either such Tenant or the Freeholder may be primarily proceeded against by the principal giving notice to fence. But the Freeholder may recoup himself against such tenant, in the absence of any negative agreement.