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Fencing Ordinance 1869

5. The Fencing Ordinance 1869

[4^th September 1869.]

Whereas an Ordinance was passed by the Superintendent and Provincial Council of the Province of Canterbury Session XXVI. No. 3 entituled "The Fencing Ordinance 1866 " And whereas such last-mentioned Ordinance was amended by another Ordinance passed by the Superintendent and Provincial Council of the Province of Canterbury Session XXVII. No. 8 entituled "The Fencing Ordinance 1866 Amendment Ordinance 1867 " And whereas it is expedient to consolidate and 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The said recited Ordinances shall be and the same are hereby repealed

Provided that Such repeal shall not affect the existing rights of any person under the said Ordinances or either of them or any proceedings or directions already taken commenced or given under the said Ordinances or either of them.

2. Occupier may give notice to occupier of adjoining land to assist in making or repairing fence.

It shall be lawful for any occupier lessee for years or owner 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 or to the effect set forth in the Schedule to this Ordinance to require any occupier lessee for years or owner of any adjoining land to assist in equal proportions in making or repairing any Dividing Fence Such notice to be delivered, personally or left at the usual or last known place of abode in the Province of Canterbury of the person to whom the same shall be directed or delivered personally to the attorney or agent within the said Province of such person.

3. Occupier making use of dividing fences towards erection of which no contribution has been paid shall be liable to pay moiety of value thereof.

If any such occupier lessee for years or owner shall at any time after the passing of this Ordinance make use of or avail himself of any Dividing Fence towards the erection of which no contribution shall have been paid such occupier lessee for years or owner shall be liable to pay to the then occupier lessee for years or owner of any 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.

4. Occupier may give notice to occupier of adjoining land to cut and trim fence on his side.

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. 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 Live Fence 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.

6. When lessee or owner of adjoining land cannot be found notice may be inserted in newspapers in lieu of delivery.

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 is 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.

7. 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 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 pay the remaining three-fourths of such cost.

8. 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 or agreement relative to Fencing or to any covenant or agreement which shall be hereafter entered into between adjoining occupiers or owners Iandlord and tenant or any other person or persons whomsoever.

9. Persons not agreeing within fourteen days after notice as to description of fence may be summoned to appear in Court where question shall be decided.

If any person or persons liable to join in the erection of any Fence shall have received notice to join in the making or erection of any Fence under this Ordinance and shall be willing so to do but shall not within fourteen days agree as to the description of Fence to be erected it shall be lawful for the person or persons giving such notice to summon the person or persons refusing to agree as to the description of Fence to be erected commanding him or them to appear before any Resident Magistrate's Court or Court of Petty Sessions and such Court shall upon hearing evidence decide as to the description of Fence to be made or erected as to the portion which each party has to make or erect and as to the date on which each party has to commence and finish the making or erection of his or their portion and shall give judgment accordingly and the costs of bringing the matter before the Court shall be borne in equal proportions by the respective parties if both appear at the hearing thereof but if either party fail to appear the party so failing to appear shall bear the whole of the costs.

10. In case of person refusing or neglecting to make or erect fence after decision of Court the other party may do it at his expense.

If any person after the decision of the Court as provided in section 9 shall refuse or neglect to commence the making or erection of any Fence within the time specified or having commenced the making or erection of such Fence has failed to finish the same within the time specified by such judgment as aforesaid the other party may proceed to make or erect the Fence or that portion of it not erected or made and the party so refusing neglecting shall be liable for all reasonable expenses connected with the work with an addition of one shilling in the pound on such cost.

11. Interpretation clause.

The term “Fence” in this Ordinance shall mean any sufficient Fence within the meaning of any law for the time being in force in the said Province respecting the trespass of cattle.

12. This Ordinance to apply to Christchurch and all other towns.

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

Schedule in within Ordinance referred to.

Take Notice that 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 the Fence] dividing the land now owned (or occupied) by you from that owned (or occupied) by me commencing (state situation of Fence) and that I require such Fence to be of the description numbered (state the number) in Schedule A to “The Trespass of Cattle Ordinance 1869” 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 proceed to the (making or repairing as the case may be) of the said Fence in the terms of “The Fencing Ordinance 1869” and seek to recover from you a moiety thereof.

Dated the day of 18 .