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Fencing Ordinance 1866

3. The Fencing Ordinance 1866.

Analysis.

1. Repealing Clause.

2. Owner &c. of land desirous of making fence to give notice.

3. Contribution to be paid towards dividing fence.

4. Occupier may give notice to occupier adjoining to trim live fence.

5. Power of entry for making or repairing fence.

6. Procedure when notice cannot be delivered.

7. Ordinance not to affect agreements.

8. Description of fence how to be determined.

9. Damages not recoverable for trespass upon unfenced land.

10. Interpretation.

11. Ordinance to apply to towns.

12. Money how recoverable under the Ordinance.

13. Ordinance to come into operation.

14. Title.

Whereas by an Ordinance made by the Lieutenant Governor of New Zealand with the advice of the Legislative Council hereof Session VIII No. 8 entituled an “Ordinance to encourage the Fencing of Land” and by an Ordinance of the Superintendent and Provincial Council of the Province of Canterbury Session XX No. 15 entituled “The Fencing Ordinance 1863” provision was made for regulating the erection an maintenance of dividing Fences And whereas it is expedient to repeal he said recited Ordinances an to make other provision in lieu thereof

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

1. Repealing Clause.

The said firstly recited Ordinance as to its operation within the Province of

Canterbury and the said “Fencing Ordinance 1863” secondly recited shall from

and after the commencement of this Ordinance be and the same are hereby repealed.

2. Owner &c. of land desirous of making fence to give notice.

It shall be lawful for any lessee for years owner or owners of land adjoining or abutting upon any other lands not being waste lands of the Crown held under any depasturing license and having no sufficient Dividing Fence by notice in writing in the form set forth in the Schedule to this Ordinance to require any lessee for

years owner or owners person or persoins legally possessed of or entitled to an estate of freehold in any adjoining land his her or their agents respectively such notice be delivered personally or sent through the ordinary course of post to assist in equal proportions in making or repairing any Dividing Fence And in case such person or persons shall refuse or neglect to assist in the making any such Fence for the space of one calendar month after the delivery of such notice then and in such case it shall be lawful for the person or persons giving such notice as aforesaid to erect or repair such Fence or Fences and to recover from such adjoining owner or owners person or persons legally entiled as aforesaid one moiety of the cost of erecting or repairing such Fence or Fences as the case may be.

3. Contribution to be paid towards dividing fence.

If any lessee for years owner or owners shall at any time after the passing of this Ordinance make use of or avail himself or themselves of any Dividing Fence towards the erection of which no contribution shall have been paid such lessee for years owner or owners shall be liable to pay to the then owner of such land upon which such Fence shall have been erected one moiety of the then value thereof or of so much thereof as shall be made available as a Fence to such adjoining land Provided always that it shall be lawful for any Resident Magistrate or Justice of the Peace before whom such claim shall be heard to direct the payment of the same either all together or by instalments and at such times as such Resident Magistrate or Justice of the Peace shall think fit.

4. Occupier may give notice to occupier adjoining 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 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 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 from the occupier of such adjoining land Provided always that if in the opinion of any Resident Magistrate or Justice of the Peace before whom such money is sought to be recovered it shall appear to have been unnecessary that such Fence should have been cut and trimmed the person giving such notice shall not be entitled to recover from such adjoining occupier.

5. Power of entry for 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 authorised by him from time to time to enter upon that of the adjoining occupier

or owner and no action shall accrue to such adjoining occupier or owner by reason of such entry or entries.

6. Procedure when notice cannot be delivered.

When the lessee for years owner or owners of the adjoining land cannot after due enquiry be found or when such lessee for years owner or owners not resident within the Province and shall not have left any Attorney or Agent within the Province or such Attorney or Agent shall not be known to the person giving any notice herein prescribed such notice may in lieu of delivery thereof be inserted twice at intervals of not less than six days in some newspaper published within the Province and also in the Provincial Government Gazette if any.

7. Ordinance not to affect agreements.

Nothing in this Ordinance contained shall make void or affect the liability of any person or persons under any now subsisting covenant or 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.

8. Description of fence how to be determined.

If any person or persons liable to join in the creation or repair of any Fence shall have received notice to join in the making erection or repair of any Fence under this Ordinance and shall be willing so to do but shall not within one calendar month agree as to the description of Fence to be erected the person or persons giving such notice shall be entitled to erect the moeity of the Fence to be made by him or them in such manner as he or they shall think fit provided the same be

a Fence within “The Trespass of Cattle Ordinance” Session XIV No. 1 but if such moeity of the said Fence shall not have been erected by him or them within the period prescribed by this Ordinance in that behalf it shall be lawful for the person or persons giving such notice to erect the whole of such Fence in such manner

as he or they shall think fit provided the same be a Fence within the said lastly recited Ordinance.

9. Damages not recoverable for trespass upon unfenced land.

No owner or occupier of any unfenced freehold land shall be entitled to recover any damages by reason of any trespass thereupon by any cattle horses or sheep.

10. Interpretation.

The term “ Fence “ in this Ordinance shall mean any one of the several descriptions of Fences enumerated in Schedule B to the “Trespass of Cattle Ordinance” Session 14 No. 1.

11. Ordinance to apply to towns.

This Ordinance shall be held to apply to the City of Christchurch and all other towns within the Province of Canterbury.

12. Money how recoverable under the Ordinance.

All moneys recoverable under this Ordinance shall if the amount claimed be within the cognizance of any Court of summary jurisdiction be recoverable before any Magistrate or any Justice of the Peace.

13. Ordinance to come into operation.

This Ordinance shall come into operation on the First day of January One thousand eight hundred and sixty-seven.

14. Title.

This Ordinance shall be entituled and may be cited as “The Fencing Ordinance

1866.”

Schedule.

Take Notice that within one calendar month after the date hereof I require you to join with me in the (making or repairing as the case may be of the [dividing line if the notice be to make a fence or if there is a fence and the notice be to repair]

of the Fence dividing the land now owned or occupied by you from that owned or occupied by me as the case may be) commencing (state situation of Fence) and that I require such Fence to be of the description numbered (state the number) in Schedule B to “The Trespass of Cattle Ordinance” Session XIV. No. 1 and I further give you notice that in the event of your neglect or refusal to comply with the terms of this notice I shall at the expiration thereof proceed to the (making or repairing as the case may be) of the said Fence in the terms of “The Fencing Ordinance 1866” and seek to recover from you a moiety of the cost thereof.

Dated the day of 1866.

Notes.

This Ordinance was passed by the Canterbury Provincial Council on 14th

November 1866, and assented to by the Superintendent on the 20th November

1866.

Fencing Ordinance 1862 D NZG 1863 p140

Fencing Ordinance 1863

Fencing Ordinance 1866

Fencing Ordinance 1866 Amendment Ordinance 1867

Fencing Ordinance 1869

Fencing Ordinance 1869 Amendment Ordinance 1870 D NZG 1871 p57

Fencing Ordinance 1875 AW. NZG 1875 p539

Canterbury Fencing Ordinance 1872.