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Canterbury Fencing Ordinance 1872

8. The Canterbury Fencing Ordinance 1872

[19^th June 1872.]

Whereas it is expedient to amend the law regulating the erection and maintenance of Dividing Fences within the Province of

Canterbury:

Be it therefore enacted by the Superintendent of the Province of Canterbury by and with the advice and consent of the Provincial Council thereof as follows:

1. Repealing clause.

The Fencing Ordinance 1869 shall be and the same is hereby repealed except so far as it repeals any former Ordinance Provided that such repeal shall not affect the existing rights of any person under the said Ordinance or any proceedings or directions already taken commenced or given under the said Ordinance.

2. Occupier of land to give notice to owner or occupier of adjoining land of intention to erect dividing fence.

Before any person being an occupier lessee for years or owner of land shall erect or make a sufficient fence dividing his land from land not being Waste Lands of the Crown held under any depasturing license adjoining thereto such person is hereby required to give to the occupier or if there be no occupier to the owner or lessee for years of such adjoining land a notice in writing in the form or to the effect of that contained in Schedule A hereunto annexed of such person’s intention to erect or make such sufficient fence as described in such notice and if such person shall erect such fence without giving notice as aforesaid the occupier lessee for years or owner as the case may be of such adjoining land shall not be liable to pay any portion of the value of such fence.

3. Serving of notice.

Every such notice may be served upon such occupier lessee for years or owner either personally or by leaving the same with some adult inmate at his usual residence or if such owner or lessee for years shall be absent from the Province then by delivering the same to or leaving the same at the residence of his known agent in the same manner and if there shall be no such agent resident in the Province then it shall be sufficient to insert such notice at least three consecutive times in the Government Gazette of the Province.

4. In case of refusal or neglect to make half fence when notice given. If after any notice has been given in accordance with the provisions of the preceding sections the occupier lessee for years or owner or his attorney or agent shall refuse or neglect for the space of one calendar month to make or cause to be made one half of the fence or fences mentioned in the said notice or one half of such sufficient fence as may be mutually agreed upon it shall be lawful for the person giving such notice as aforesaid thereupon or within six months thereafter to make a fence of the kind or description mentioned in the said notice or at his discretion to make any other sufficient fence within the meaning of this Ordinance and may thereupon recover in a court of competent jurisdiction from the person receiving such notice one half of the cost of making such fence.

5. Position of fence as regards adjoining land.

The owner or occupier or lessee for years of any land not being within the limits of any town may in making a fence as is described in clause 7 of Schedule B dividing his land from the land thereto adjoining make either the bank or ditch on such adjoining land and use the soil taken from the ditch towards the making of the bank Provided always that it shall not be lawful to make any ditch or bank upon any such adjoining land in any case where a hedge of live thorns gorse or broom or other live fence may have been planted and kept in good and thriving condition thereon so as to disturb or injure such hedge or other live fence without the consent of the owner or occupier or lessee for years of such land first obtained And where a dividing fence is made of the descriptions Nos.1 2 and 3 of Schedule B the posts of such fence shall be placed on the boundary line.

6. Occupier of land to pay moeity of value of dividing fence towards erection of which no assistance has been given.

If any occupier lessee for years or owner of such land shall at any of this Ordinance make use of or avail himself of any sufficient dividing fence erected or made before the passing of this Ordinance towards the erection or making of which no assistance equal to one moiety of the original cost of such fence shall have been given by such person or any former occupier lessee for years or owner he shall be liable to pay one moiety of the then value thereof or of so much thereof as shall be available as a fence for his land to the occupier lessee for years or owner of the land divided by such fence from his land less the value of the assistance originally given towards the construction of such fence.

7. Dividing fence to be cut, trimmed, or repaired at joint expense of owners or occupiers.

When any sufficient dividing fence shall require cutting trimming cleansing or repairs or shall become insufficient the same shall be cut trimmed cleansed and repaired at the joint expense of the owners or occupiers or lessees for years of the land adjoining such fence and any owner or occupier or lessee for years of land adjoining such fence (having given notice in writing to the other owner occupier or lessee for years of the land divided by such fence or to his or her agent in the said Province) may on refusal or neglect of such last mentioned person for the space of two weeks to contribute one-half of such expense cause the same to be cut trimmed cleansed or repaired and made a sufficient fence and shall thereupon be entitled to recover from such adjoining owner or occupier or lessee for years one-half of the cost of so cutting trimming cleansing or repairing such fence.

8. Occupier may enter upon land of adjoining occupier for purpose of making, repairing, or for trimming fence.

For the purpose of making or repairing any fence or for trimming any fence under the provisions of this Ordinance it shall be lawful for the occupier lessee for years or owner of any land or any person duly authorised by him from time to time to enter upon that of the adjoining occupier lessee for years, or owner and no action shall accrue to such adjoining occupier lessee for years or owner by reason of such entry or entries.

9. Occupier of land under pasturage license may require occupier of any adjoining land granted by the Crown to make or repair fence.

Any person occupying land under any pasturage license held under the Crown may require any occupier of any adjoining land granted by the Crown to make or repair a fence between the land in their respective occupation and all the provisions of this Ordinance shall apply to such case as if both such occupiers held land which had been granted by the Crown but an occupier of land granted by the Crown abutting on land occupied under such license as aforesaid shall not be entitled to require the person occupying such last mentioned land to make a fence between the lands occupied by them respectively.

10. This Ordinance not to affect subsisting covenants or agreements. Nothing in this Ordinance contained shall make void or affect the liability of any person or persons under any now subsisting covenant agreement relative to Fencing or to any covenant or agreement which shall be hereafter entered into between adjoining occupiers or owners landlord and tenant or any other person or persons whomsoever.

11. Ordinance not to affect waste lands of the Crown except as provided. Nothing in this Ordinance shall be deemed to affect waste lands of the Crown except as herein especially provided.

12. Sufficient fence.

In the construction of this Ordinance the term “sufficient fence” shall be taken to include any fence of the description set forth in Schedule B hereto annexed Provided always that no person shall be entitled to erect any such fence as is described in Clause No. 7 of Schedule B within the limits of a town And provided also that where a fence has already been erected sufficient under the provisions of the Ordinance hereby repealed it shall not be necessary that any such fence should until its re-erection be made a sufficient fence within the meaning of this Ordinance.

13. Ordinance to apply to all cities and towns as well as lands referred to in

Section 2.

The provisions of this Ordinance shall apply as well to lands in the City of Christchurch and to all other Cities and Towns in the Province of Canterbury as to lands referred to in Section 2 of this Ordinance.

14. In case of stream or ditch which does not form a sufficient fence dividing two properties.

When any stream or ditch which does not form a sufficient fence shall divide two properties and the 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 sufficient fence on his own land for half the distance between the said properties and the owner of the land on the opposite side shall have refused or neglected to complete a dividing fence by erecting a sufficient 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 workmen to enter upon the land on the opposite side of the stream or ditch and erect or cause to be erected thereon a sufficient fence in continuation of the fence he shall have erected on his own land for the remainder of the distance between his land on 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 advisable and he shall be entitled to recover one-half of the entire cost of such fence from the owner of the land on the opposite side of such stream or ditch.

15. Title.

This Ordinance shall be intituled “The Canterbury Fencing Ordinance 1872.”