Cattle Trespass Ordinance 1857 (WA)

WESTERN AUSTRALIA.

ANNO VICESIMO-PRIMO VICTORI/E REGIME.

No. VII.

An Ordinance to consolidate and amend the Laws relating to Trespasses by Live Stock, and to promote the construction of Fences.

HEREAS it is expedient to consolidate into one Ordinance the law of trespass by Live Stock, and to encourage the con-Wand amend all the enactments and provisions respecting

struction of Boundary Fences ; Be it enacted, by His Excellency

the Governor of Western Australia and its Dependencies, by and Preamble.

with the advice and consent of the Legislative Council thereof:

I. THAT from and after the passing of this Ordinance, the following Ordinances, 2nd William IV, No. 2, 1832 ; 4th William IV, No. 5, 1834 ; 10th Victoria, No. 13, 1847 ; and 12th Victoria, tr. 1 3.231 IM! 56'

No. 6, 1849 ; shall be and the same hereby are repealed, save and 1 8,19; '

21st Viet., No. 7. 1857.

except as to any proceedings pending, and any liabilities incurred, at the time of the passing hereof, under any of the said Or- dinances.

II.      THAT it shall be lawful for any person sustaining damage

LINDOWNER'S row-	in his house or land, or in any crop, fixture, or chattel therein
MIS .1.ND DUTIES.	respectively growing or being, by trespass of any Live Stock of
Meat he may do.	whatever description, or by dogs or other domesticated animals,
He may pound any	to seize and secure the animals so trespassing in any Public Pound,
animal, dogs, SLe.
Private place of se-	or, if there be none such within three miles of the scene of trespass,
curity if no pound.	then in any private pound or place of security, until satisfaction be made for such damage in manner hereinafter provided : Provided, always, that it shall be incumbent on the party so distraining and impounding in any private pound to make forthwith a complaint of such trespass to some Justice of the Peace, and, until order made by such Justice, to treat the animal so distrained with reasonable care, to supply it with food proper for its sustenance, and to protect
And may claim com-	it from ill-usage : Provided, also, that the party sustaining any such
pensation whether be
have pounded or not.	damage as aforesaid shall be equally entitled to the compensation herein provided, on complaint to a Justice of the Peace, whether the animal committing the damage shall have been impounded or not.

III.      THAT in order to prevent a practice so injurious to the

Matt he may ,tot public interests of this colony as the wilful destruction of Live Stock

do. and domesticated animals, on account of trespasses, for which a

But not kill or maim.	lawful mode of summary compensation is hereby provided, if any
If he do either, then	person shall, after the passing of this Ordinance, unlawfully and
compensation and	wilfully kill, wound, or maim any animal whatever committing
fine.	damage in his house or lands, (not being any pig, goat, poultry,
Value of animal.	rabbit, or pigeon), every such person, being convicted thereof before any Justice of the Peace, shall forfeit and pay to the party
Costs, &o.	injured (over and above the value of the animal, if killed, and all the costs and expenses of the whole proceeding, including necessary wit- nesses, fees of court and incidental expenses), any such sum of money, not exceeding ten pounds, as to such Justice shall seem meet ; and,
Fine £10 manimum.	in default of payment of the entire sum so adjudicated, either
In defaalt, gaol 3	forthwith, or within such time as such Justice may allow, the
months.	person so convicted shall be committed to the common gaol or house of correction for a period not exceeding three months, with or without hard labour, as to the convicting Justice may seem meet.

1857.                 21st Viet., No. 7.

THAT if any entire horse, bull, or ram above the age of keeper, it shall be lawful for the lawful occupier of such land to ;LIU gels bualnl	one year shall be found trespassing on any land, and without a
castrate such animal forthwith, if the owner thereof be unknown, to no charge.

IV.

if ie3ituterthp

and three days after notice of such trespass to such owner, eartyclai to cOmef

residence of such owner ; and no compensation shall be given to ea thereby.

known, such notice being personal, or left at the usual place of peusation not affect-

such owner for any loss which he may sustain thereby : Provided, Amid Pneotey.must be

always, that nothing herein contained shall be deemed or taken &Area.

to interfere with, or in any wise affect, any claim for compensation

or any penalty (as hereinafter provided) which may have accrued

by reason of the trespass.

V.     THAT if any Live Stock shall be found trespassing upon any yees can claim penal-

lands, whether any damage shall be proved to have been com-

mitted by them or not, the owner of such live stock shall forfeit Which are distinct

and pay the sum of three-pence for each head of horses or flo'T aacreasatian

other great stock, and one penny for each head of sheep and 3j per headlarge,

other small stock so found trespassing as last aforesaid, upon the la per bead small

information and complaint of the owner or lawful occupier of s'

the land upon which such stock shall have so trespassed, and that

such sum or sums of money so imposed as a penalty shall be paid

to such owner or occupier, and shall be over and above, and shall And over and above.

in no wise affect any claim that may be made by such owner or

occupier for damage done by such stock in such trespass : Pro-

vided, always, that in every case where great cattle are found Double penalties on

trespassing, and not branded with a registered brand, such penalties unbranded stock.

as aforesaid shall be doubled : Provided, also, that the total

amount of penalties so imposed shall in no single case of trespass But in any

exceed the amount of two pounds : Provided, also, that all maximum. ease £2

trespasses committed by the same stock upon the same land, and	on e aejsudiccaetat	to	o
of

against the same individual, prior to the date of any complaint or De datle. sail

information made under this Ordinance before a Justice of the	sk	o prior
Peace, shall be deemed and taken to constitute only one offence, and to render the owner of such stock liable for only one such trespass.

VI.     THAT no expense for keep of any Live Stock impounded No expense for keep

for trespass shall be recovered for more than the period of one Iblereo snsd adoneertis

lT ek

vl

week unless the said stock shall have been advertised, with a full

21st Viet., No, 7. 1857.

description thereof as hereinafter provided, as soon as possible after

the same shall have been found so trespassing as aforesaid.

VII. THATno Live Stock shall be sold by any order of any Justice

of the Peace for the default of discovery of the owner thereof unless

No stock to be sold .the same 'shall have been advertised, with fall description thereof, by J. P., unless ad- including marks, brand, colour, and height, in two newspapers

published in the colony for three successive weeks, nor until seven

days after the last of such advertisements.

VIII. THAT it shall be lawful for any Justice of the Peace in

this colony, on complaint upon oath made to him by any person sus-

•

CATTLE-OWNTR.

taming damage from Live Stock as aforesaid, to issue his sum

plain to a Justice ofIf impolinder coo- so trespassing ; and on the appearance of the owner, or in his ab- mons for the appearance of the owner (when known) of the animal -His liabilities, S'e.

the Peace within 24 serice, Oh proof of the service of the summons, either personally, or

hours.

May be summoned- by leaving the same at the usual place of residence of such owner, to

to answer alleged da- 'examine into the nature and amount of the damage so alleged to mace. - have been committed, and to make such order for the payment of

the value thereof by the said owner to the party injured (whether

to enter into plaint. J.P. has jurisdiction the last-mentioned party shall have been examined or not), to-

gether with all reasonable costs of pounding, feeding, constable's

The examination L of fees, witnessess, and other incidental charges as to such Justice

the real sufferer who	may be distant, is- shall seem meet, and for that purpose to compel the attendance of
immaterial. all necessary witnesses, and to administer oaths to all parties ex- Costs and court fees. amined ; and in case such order shall not be complied with, it shall

be lawful for the Justice making the same, by warrant under his hand, to direct any constable of the said colony, by public sale of the animal trespassing when impounded, and, if needful, by dis-

Distress, tress and sale of other the goods and chattels of the owner of such animal, to levy and raise the sum awarded by such order, together with all the expenses of sale ; and further, that it shall be lawful

such Justice making such order as aforesaid to make at his

treatment or neglect discretion reasonable deduction from the amount of damages so The impoun der's ill- for .

of animal to be con- ascertained on account of any negligence or other misconduct on	sidered, and allowed
for, the part of the person complaining, either by undue delay ill making his complaint, or by ill treatment of the animal im- pounded.

IX. THAT in all cases in which the animal so trespassing as

aforesaid shall be impounded, and the owner thereof shall not be

1857.               21st Viet., No. 7.

discovered within seven days after the last of the advertisements,.

hereinbefore required by section seven, it shall be lawful for any advertisement third

Justice of the Peace, on application and complaint on oath of the

party injured, to make such examination, order, and sale as are May proceed in ab

directed to be made, in. case such owner shall be sence. -hereinbefore

known.

X.    THAT if any person who shall impound any Live Stock Remedies.

under this Ordinance, as hereinbefore provided, shall not within Cattle owner may twenty-four hours after make complaint to some Justice of the ra	ng rhoursj	delay
Peace

Peace of the damage committed by such Live Stock, it shall be of impounder.

lawful for any Justice of the Peace residing near the place of

impounding, on complaint of the owner of such Live Stock, to Who can r

summon before him the person impounding the same, and upon ap- mane by . J. P.

pearance of such last-mentioned person (or in his absence, upon proof of the service of such summons either on his person or at his last place of residence) to proceed in such and the like manner to all intents and purposes as any Justice of the Peace is by this Ordi- Who can forthwith

nance authorised to proceed and act on the return of any examine into the case

summons issued on the complaint of the person sustaining damages p"ouannatee; olpelnairtsini:

by the trespass of Live Stock.

XI.

THAT on complaint made to any Justice of the Peace that any Live Stock have been impounded for a trespass for which no com-

pensation or penalty is recoverable under the provisions of this Ordi-	His means of releas-
nance, it shall be lawful for such Justice to summon before him the	ing stock when ille-
person so impounding the same, and to summon and examine upon	gally pounded.
oath all necessary witnesses ; and in case it shall appear to such Jus-	If impounded when
tice that such stock has been in fact impounded for any such tres-	no compensation due
pass as last aforesaid, it shall be lawful for the said Justice to order	(see ante.)
the person so impounding such stock to deliver the same to the	J.P. to enquire whe.
owner thereof, and to pay to the said owner such damages (not	ther such be the na-
exceeding five pounds) and costs as to such Justice shall seem	ture of case.
meet, proper, and just ; and in case such order shall not be complied	If so, J. P. can order
with within such time as such Justice shall thereby limit and express	release of such stock,
for that purpose, it shall be lawful for such Justice to levy and	and damages £5 the
raise the damages and costs awarded by him by distress and sale	maximum.
of the goods and chattels of the offender, and to direct and au-	J. P.'s order enforced
thorise any constable or police officer to enforce the release and	by distress and sale,
delivery of the stock impounded, and for that purpose, if necessary,	Constable may break
to break open any doors or gates.	open doors, &c.

21st Viet., No. 7. 18:57.

XII.      THAT in all cases of trespass committed by any Live

The occupier of land

Stock the occupier of land in whose charge the said stock shall be

deemed owner of the

at the time of such trespass, shall he deemed to be sufficiently the

cattle.

owner of such stock to render him liable for all damages and pe-

nalties arising from such trespass.

XIII.      THAT from and after the passing of this Ordinance, the

proprietor or tenant of any town or suburban allotment in any part of the colony of Western Australia or its Dependencies, shall

No compensation al-	not be entitled under this Ordinance to recover any compensation
lowed for trespass on
town or suburban	whatever fir any damage committed by any live stock whatever
allotments unless	trespassing on such allotment, or to recover any poundage fees,
fenced	or other expenses incurred by reason of impounding such live stock, unless the portion of such allotment trespassed on shall, at the time of trespass, be inclosed by a sufficient external fence, as hereinafter defined.

XIV.     THAT in every case in which the proprietor or tenant of

any town or suburban allotment shall, under the provisions of an Ordinance, No. 4, 4th William IV, 1834, have required the proprietor of any adjoining land or his agent, to erect the party or common

P	r	°pHeto	r	f	1	in	g t	o	l boundary fences between such their respective adjoining lands, and
j	o	in	e	re	cti	o	n	o

fence not entitled to the proprietor, occupier, or agent to whom such requisition shall be damages. addressed, shall refuse or neglect to comply with the same, in every such case no compensation whatever shall he recoverable for any damage committed on the said adjoining lands of the proprietor, who or whose agent shall be guilty of such refusal or neglect, by any live stock straying from, over, or through the said allotment belonging to the proprietor, or occupied by the tenant making such requisition as aforesaid.

XV.     THAT no more damages or penalties shall be awarded in

If no fence no extra respect of trespasses committed upon any grain or other crops, in damages for trespass any land, not being a townsite, unless the same shall have been, on cultivated land. at the time of such trespass, inclosed by a sufficient fence, as here-

inafter defined, than. if such trespass had been upon uncultivated

land.

XVI.      THAT it shall be lawful for any lawful occupier of pri-

vate land, whether within the limits of a townsite or not, having cleared and kept clear his own side of any boundary fence from

1857.                21st Viet., No. 7.

rubbish, brushwood, fallen trees, blackboys, and. other dangerous	Boundary fence to be
fuel, to call upon, by notice in writing, the occupier of the adjacent	kept clear by both
private land, to clear as aforesaid such boundary fence_ between	parties mutually.
the said lands to the distance of ten feet from. the said fence ; and	Ten feet.
if the person so called upon shall neglect to keep his side of the boundary fence so clear as aforesaid, then it shall be lawful for the said first-mentioned occupier at any time, and from time to time, after the expiration of three days from the date of the ser- vice of such notice, to enter on the said lands and to clear such fence as aforesaid, and (in case the expense of such fence shall have been mutually borne by the adjoining proprietors or occu- piers) to recover all the costs and reasonable expenses or compen- sation for so doing from the party so neglecting. as aforesaid, as money paid to his use : Provided, always, that if such adjacent land be unoccupied, then it shall be lawful for the occupier so having cleared his own side as aforesaid to make such entry and clearing as aforesaid without notice.

XVII.      THAT if any person shall heretofore have erected or

shall erect a sufficient fence, dividing his land from the land ad-

joining thereto, and the occupier of the adjoining land shall, after

the passing of this Ordinance, in inclosing the same, avail himself	Party using bounda-
of the dividing fence so erected or any part thereof, he shall be	ry fence to pay half.
liable to pay to the person or persons having for the time being an estate for life, or other greater estate in the land by the owner or tenant whereof the said fence was erected, the half of the then value of so much of the dividing fence as shall be made available as a fence to such adjoining land; and if the person so liable to pay such half value shall not, on demand thereof by the person to whom it shall be payable, forthwith pay the same, the same shall he recoverable in due course of law as for so much money laid out and expended by the plaintiff for the use of the defendant, or otherwise, as the case may be.

XVIII.       THAT whensoever any mutual fence erected as afore-

said shall fall into disrepair, and become insufficient, any occupier	Mutual fences to be mutually kept in re.
of adjoining lands, having given -notice to the other occupiers of	pair.
the land divided by such fence may, on their refusal or neglect for
a week to contribute to the maintenance thereof, cause the same	Regulation of pro-
to be repaired and made a sufficient fence, and shall thereupon be	portionate shares
entitled to recover from such adjoining occupiers rateably their	thereof.

21st Viet., No. 7. 1857.

proportions of the expense of such repairs, in like manner in due course of law : Provided, always, and be it enacted, that no greater sum shall ba recovered from any person under this Ordinance in respect of the making or repairing of any fence than the propor- tionate share of such portion of the actual cost that would be in- curred according to the price in the district at the time for erect- ing and repairing au ordinary three-railed fence of split posts and rails.

XIX.      THAT the term. " sufficient fence" as used in this Or-

dinance shall be construed to mean, when applied to land beyond the limits of a townsite or of suburban allotments, any fence

Definition	n	iti	on	o
of su- ffi

cient fence, deemed reasonably sufficient to resist the trespass of great cattle;

and when applied to suburban allotments or to land within the limits of a townsite, such fence as may be reasonably deemed sufficient to resist the trespass of great and small stock, including sheep, but not including goats or pigs.

XX.     THAT all informations and proceedings for the recovery

Informations within of damages or penalties under this Ordinance shall be. commenced

7 days.

within seven days after the trespasses thereby respectively com- plained of shall have been committed ; and shall be heard and determined, and such damages and penalties shall be awarded and imposed, in a summary way before any one or more Justice or Justices of the Peace, according to the provisions of an Ordinance 14th Victoria, No 5, 1850.

XXI.      THAT if it shall appear to any Justice of the Peace on

or after the hearing of any complaint for any trespass, that such trespass was committed in consequence and by reason of the neg-

Careless herdsmen ligence or other culpable conduct of the shepherd, herdsman, or punishable. other servant of the person under whose immediate care and

charge such live stock were at the time of trespass, it shall be law- ful for the said justice, irrespective of any order he may make or have made for damages or penalties, to mulct the person or servant so guilty of such neglect or other culpable conduct of any portion, not exceeding five pounds, of his wages, whether then due or ac- cruing, or to commit such last-mentioned person or servant to any public gaol or house of correction in this colony, there to be kept to hard labour for any period not exceeding three months ; and

1857, 21st,Viet., No. 7,

the amount of any such mulct may be lawfully retained by the master or employer of the person so mulcted, in or towards satis- faction of any damages or penalty, which such master or employ- er may have been adjudged to pay by reason of the neglect or other culpable conduct of the person so mulcted.

XXII.     THAT nothing in this Ordinance shall be construed to Surveyors not affect,

interfere with or in any wise affect the Ordinance 14th Victoria, ed thereby.

No. 24, 1851.

XXIII.     THAT if any person shall find himself aggrieved by

any order or conviction made under this Ordinance by any single Justice of the Peace, he may appeal to the next Court of General

Quarter Sessions of the Peace, provided that notice of appeal be given 4P13,0a1 against

one

in the Court at the time of such order or conviction being made, and 1'

that a deposit of ten pounds to answer costs be made, at the same

time, and the Court at such Quarter Sessions shall hear and de-

termine the matter of such appeal, and shall make such order

therein, with or without costs, to either party, as to them shall

seem meet, and in case of the dismissal of the appeal or affirmance

of the order or conviction, shall order and adjudge the offender to

be punished according to the conviction, or to perform such order

and to pay such costs as may be awarded, and shall, if necessary,

issue process for enforcing their judgment.

XXIV.      THAT the Justices of the Peace for the said Colony in

special Session assembled, shall as soon as conveniently may be after the passing of this Ordinance, draw up and settle a list of

fees to be paid and allowed in all proceedings to be had under this s cab of Fees, &e.,

fees hitherto allowed shall be and continue in force.

Ordinance, and shall cause the same to be exposed to public view to he posted up.

in some conspicuous part of the Court Houses for their respective

XXV.     THAT this Ordinance may be cited as " The Cattle short Title,

Trespass Ordinance, 1857."

A. E. KENNEDY,

GOVERNOR AND COMMANDER-IN-CHIEF.

Passed Ow Legislative Council this I

22nd day of dime, 1557.

HENRY victurrono,

Clerk of the Council.

Printed by Smaiss,, & Co., Perth,