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Fencing Ordinance 1863

15. The Fencing Ordinance 1863

Analysis. Preamble.

1. Repealing Clause.

2. Interpretation Clause.

3. Occupier of land desirous of making fence to give notice.

4. If parties cannot agree, matter to be settled by two Justices.

5. Each Occupier to pay half the expenses.

6. Fence shall then be made.

7. If default made by one party the other party may make fence.

8. Occupier may recover from Owner. In certain cases Occupier not to recover.

9. Repairs of fences. Previous provisions applicable to repairs.

10. Present value of fence apportioned may be recovered.

11. Land may be entered upon for purpose of making or repairing fence.

12. Occupier may give notice to adjoining Occupier to trim live fence.

13. In case of default to maintain fence, mode of procedure.

14. Fence apportioned to be maintained by Owner.

15. Person making, on behalf of person liable, entitled to recover.

16. In default of Occupier contributing to or repairing fence—amount how recoverable.

17. Sufficiency of fence to be settled by Justices.

18. Procedure when notice cannot be delivered.

19. Person giving notice may proceed ex parte.

20. Cases of land held under license abutting on land granted.

21. Act not to affect agreements.

22. Money recoverable in Court of Resident Magistrate.

23. Ordinance to come into operation.

24. Title. Schedule.

Whereas an Ordinance was made by the Lieutenant-Governor of New Zealand, with the advice and consent of the Legislative Council thereof, entituled " An Ordinance to encourage the Fencing of Land, Session VIII., No. 8," and it is expedient that certain parts of the same be repealed, and that better provision be made for regulating the contributions of Owners or Occupiers of land to the making and maintaining party or dividing fences:

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

1. Repealing Clause.

The second, third, fourth, and fifth Sections of the said recited Ordinance are hereby repealed within the Province of Canterbury.

2. Interpretation Clause.

The word " fence," in this Ordinance, shall be construed and mean a fence between land in the occupation of a person and the land adjoining; the word "land," shall be construed and mean any land in the Province of Canterbury not being waste lands of the Crown.

3. Occupier of land desirous of making fence to give notice.

Any Occupier of land who may be desirous to make a fence, shall deliver a notice, in writing, to the Occupier, or if there be no occupier, to the Owner of the land intended to be separated by such fence, containing the particulars set forth in the Schedule hereto annexed.

4. If parties cannot agree, matter to be settled by two Justices.

If, within forty-four days after the delivery of such notice, the Giver and Receiver thereof do not make or contract in writing as to the nature of the fence to be made and the cost thereof and the mode and time of making the same, or if either of such parties desire that such fence shall be apportioned and do not make a contract, in writing, as to the apportionment thereof, and as to the nature

of the fence to be made and the mode and time of making the same and as to an questions relating thereto, such matters, or such of them as may be in difference, shall be settled by two or more Justices of the Peace, on evidence taken.

5. Each Occupier to pay half the expenses.

The Justices shall found their decision on the principle that each such Occupier shall bear one-half of the expense of making the fence.

6. Fence shall then be made.

When such matters shall have been settled, either by agreement between the parties or by two or more Justices as aforesaid, the fence or apportioned parts thereof respectively (as the case may be) shall be made by the persons at the cost and in the manner so agreed upon or decided.

7. If default made by one party the other party may make fence.

In case of default for twenty-eight days by either party duly to perform his part of such contract, or to obey the part of the decision which should be obeyed by him, the other party may perform such neglected duty, or, in case of non-payment of money, may recover the same or the cost of performing such neglected duty with the addition of one tenth, in the manner hereinafter provided.

8. Occupier may recover from Owner. In certain cases Occupier not to recover. Any Occupier shall be entitled, at the expiration of the time for which he shall hold the land fenced under this Ordinance, to recover from the Owner thereof the then value of any fence made under this Ordinance, such value, in case of disagreement, to be settled by two or more Justices: Provided, that where the occupancy is for a term of which less than two years shall be unexpired at the time of the making of the fence, it shall not be lawful for the Occupier of any land to recover from the Owner thereof the value of any such fence unless he shall, previously to the making thereof, have received notice from an adjoining

Occupier to make such fence, or unless he shall have obtained the consent, in writing, of the Owner of such land to the making thereof.

9. Repairs of fences. Previous provisions applicable to repairs.

The provisions hereinbefore contained with reference to the making of fences shall apply to the maintaining and repairing of fences already made, Mutatis mutandis, subject as hereinafter mentioned.

10. Present value of fence apportioned may be recovered.

If any fence existing at the time this Ordinance shall come into operation shall be apportioned under the power herein contained for the purpose of maintenance or

repair, the Owner of any land bounded thereby, being the person by whom any such fence was erected or deriving title under such person, shall be entitled to recover from the owner of the adjoining land bounded thereby the value, at the time of recovery, of that part of the fence appertaining to such adjoining land.

11. Land may be entered upon for purpose of making or repairing fence.

For the purpose of making or repairing any fence, or for trimming any live fence, it shall be lawful for the Occupier or Owner of any land, or any person duly authorized by him, to enter upon that of such Occupier or Owner, and no action shall accrue therefrom.

12. Occupier may give notice to adjoining Occupier to trim live fence.

The Occupier of land abutting on any live fence, may, at any time, give notice, in writing, to the Occupier of the adjoining land abutting on such fence, requiring him to cut and trim that side of the fence abutting on such adjoining land, and in

the event of such Occupier failing to comply with such notice within ten days from the date thereof, or to show good and sufficient reason why the said fence should not be so cut and trimmed, it shall be lawful for the person giving such notice to cause the same to be done, and the amount of the cost of such trimming and cutting, with all costs, shall be recoverable as hereinafter provided.

13. In case of default to maintain fence, mode of procedure.

In case of default by the Occupier of any land to well and sufficiently repair the part of any fence which shall have been apportioned to such land under the provisions of this Ordinance, the Owner or Occupier of the land abutting thereon may, by notice in writing, delivered to the person making such default, require him, within seven days, to repair the said fence, and on the expiration of the said seven days, if the fence shall not previously have been well and sufficiently repaired, it shall be lawful for the person delivering the notice aforesaid to repair such fence on behalf of the person making such default.

14. Fence apportioned to be maintained by Owner.

Whenever a fence shall have been apportioned under this Ordinance, the Occupiers or Owners of the land on each side of such fence shall, at all times thereafter, maintain and keep in repair the portions apportioned to them or their Predecessors in the holding.

15. Person making, on behalf of person liable, entitled to recover.

Any person who, under the provisions of this Ordinance, shall become entitled to make or repair, and shall have well and sufficiently made or repaired any fence on behalf of an adjoining Occupier or Owner, shall be entitled to recover from such Occupier or Owner, or his Heirs or Assigns, the value thereof, with an addition of one-tenth.

16. In default of Occupier contributing to or repairing fence—amount how recoverable.

If any Occupier shall fail to contribute, as herein provided, towards the making or repairing of any fence, the amount of contribution shall be recoverable from any subsequent Occupier; but if there shall, within three months, be no subsequent Occupier, then from the Owner of the said land. And in this last case the amount of such contribution shall be considered as a liability, under an Act of the General Assembly of New Zealand, entituled "The Sale, for Non-payment of Rates Act,

1862 ;" and such Land shall be liable to be sold under the said Act, and the person or persons who shall be entitled to recover such contributions are hereby appointed and authorized to subscribe the Memorial mentioned in the said Act, and to do all other things, for the purpose of procuring the sale of such land, as collectors of unpaid rates are autholized to do by the said Act.

17. Sufficiency of fence to be settled by Justices.

Should any dispute arise as to the sufficiency or value of any

fence, or repairs, or as to any matter under the provisions of this Ordinance, the same shall be settled by two or more Justices.

18. Procedure when notice cannot be delivered.

When there shall be no Occupier of the adjoining land, and the Owner thereof cannot, after due enquiry, be found, or when such Owner is not resident within the Province, in lieu of the delivery of any notice herein prescribed, such notice may be inserted twice, at intervals of not less than six days, in some Newspaper published and circulated within the Province, and also in the Provincial Government Gazette.

19. Person giving notice may proceed ex parte.

At any time after the expiration of thirty days from the last insertion as aforesaid of such notice, the person giving such notice may apply ex parte to two or more Justices, who shall settle all the matters with reference to the making or repaying or apportioning (as the case may be) of the fence therein referred to in the same manner as if the notice had been given to the adjoining Occupier, and he, and

the Giver of the notice, had failed to agree as to the particulars mentioned in

Section 4.

20. Cases of land held under license abutting on land granted.

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 entituled to require the person occupying such last mentioned land to make a fence between the lands occupied by them respectively. Provided

always, that the liability of any person occupying under such License as aforesaid shall only extend to one. fourth of the cost of such fence, or of the

repair of such fence; and the Occupier of the land so granted as aforesaid shall be liable to the remaining three-fourths of such cost.

21. Act not to affect agreements.

Nothing in this Ordinance contained shall make void or affect any Covenant or Agreement relative to fencing which shall be now subsisting or shall be hereafter entered into between adjoining Occupiers or Owners, or between Landlord and Tenant, under any lease, or by implication of Law or otherwise.

22. Money recoverable in Court of Resident Magistrate.

All moneys recoverable under this Act shall be recoverablec before two or more

Justices of the Peace or a Resident Magistrate.

23. Ordinance to come into operation.

This Ordinance shall come into operation on the First day of January, one thousand eight hundred and sixty-four.

24. Title.

This Ordinance shall be entituled and may be cited as " The Fencing Ordinance,

1863."

Schedule.

Notice To Make (or Apportion, etc.) Fence.

To Occupier (or Owner as the case may be) of (describing adjoining land).

Take notice that I desire that the boundary or separating fence between (describing the lands) be made (or apportioned as the case may

be) immediately (or before the day of 18 . (and that such fence shall be a

(here describe the fence).

Dated this day of , 18 . A.B., Occupier (or Owner)