Dividing Fences Act 1902 (NSW)

Act No. 63, 1902.

An Act to consolidate enactments relating to the Dividing Fences of adjoining lands. [4th

September, 1902.]

BE it enacted by the K i n g ' s Most Exce l l en t Majesty, by and wi th

t h e advice and consent of t he Legis la t ive Counci l and Legislat ive Assembly of N e w South Wales in P a r l i a m e n t assembled, and by the

a u t h o r i t y of t h e same, as fo l lows:—

1. This Ac t m a y be cited as the " D i v i d i n g Fences Ac t , 1902 . "

2 . The A c t N i n t h George t h e F o u r t h n u m b e r twelve is hereby

repealed.

3 . (1) The owner of l ands adjoining or a b u t t i n g u p o n any

other lands , and h a v i n g no sufficient dividing fence, may requi re by wr i t i ng u n d e r his h a n d the owner or person legal ly possessed of and hold ing any adjoining lands (except ing such lands as are held of t he Crown by t empora ry occupat ion only) or his agen t to assist in equal propor t ions to m a k e or repair any or all t h e d ividing fences be tween such lands respect ively .

(2) I n case t h e owner of such adjoining lands or person legal ly possessed of and hold ing t h e same or his agen t refuses or neglects to assist or fails to use due di l igence in t he m a k i n g or repa i r ing such dividing fences for six m o n t h s after t h e receiving of such requis i t ion or notice, or does not give to t h e owner of such adjo in ing land from whom he has received such requis i t ion or not ice a sufficient a n d reasonable excuse for n o t hav ing assisted in ca r ry ing such fencing or enclosure in to effect, t hen and in ei ther such case t he owner of such adjoining lands who has given such requisi t ion or not ice as aforesaid, and who has completed his share of such dividing fence, m a y engage and cont rac t wi th a n y person to comple te and execu te or repai r such dividing fence, and such person so giving not ice as aforesaid a n d his servants or t h e person con t rac t ing to execute , complete , or repair such fencing and his servants respectively m a y cu t upon the fa rm or lands of t he person so neglec t ing or refusing as aforesaid all such indigenous t imber or other indigenous trees, excep t ing such as have been p lan ted or preserved for o rnament , and mater ia ls as are necessary for execut ing and comple t ing or repai r ing such fencing and enclosing as a foresa id ; and such owner or cont rac tor or his se rvants respectively shall no t be answerable or chargeable for any ac t of t respass which he or t hey respectively may have commit ted on such adjoining lands for t he purpose of cu t t i ng and ca r ry ing away any such indigenous t imbe r as aforesaid. ( 3 )

( 3 ) I n case a sufficient q u a n t i t y of t h e mate r ia l s necessary

for t h e execu t ing a n d comple t ing or repa i r ing of such fencing canno t he obtained upon such adjoining lands , t h e person author ised to m a k e or repai r such dividing fences, or t he person wi th w h o m he so contracts m a y procure and purchase t h e mater ia l s necessary for t he execu t ing a n d comple t ing or repa i r ing of such fencing, and all sums of money which are so expended or laid out u n d e r t h e provisions of th i s A c t shal l be recoverable as money laid o u t for t h e benefit of the owner of such lands .

4 . (1) If a n y person encloses his lands before t he lands

immedia te ly adjoining as aforesaid have been du ly g ran ted by the Crown or o therwise held as pr iva te proper ty , t h e owner of lands so enclosed m a y claim and recover from t h e person who af terwards becomes the propr ie tor of such adjoining lands one-half of the ac tua l va lue of t h e wall , hedge , or fence fo rming the dividing l ine or fence

be tween the said adjo in ing lands .

(2) Such va lue shall be ascertained immedia te ly or as soon
as m a y be after such adjoining l and has been gran ted by the Crown or

otherwise held as pr iva te p roper ty as aforesaid by t h e a rb i t r a t ion of

two persons to be m u t u a l l y chosen by the par t ies , and the a m o u n t wh ich

is awarded u n d e r such a rb i t ra t ion as one-half of t he value of such d iv id ing fence shal l be recoverable by due course of law if no t paid

w i th in twelve m o n t h s after t h e da te of t h e award .

(3) I n case such arbi t ra tors do no t agree as to t h e a m o u n t

of t he s u m to be paid for one-half of t he va lue of such dividing fence wi th in one m o n t h n e x t after such reference is m a d e to t hem, then the same shal l be referred to t h e de te rmina t ion of an ump i r e appoin ted by t h e m by wr i t ing u n d e r the i r hands , a n d t h e decision of such u m p i r e shal l be conclusive.

(4) I n case e i ther of t he part ies neglects or refuses for one

m o n t h after not ice in wr i t i ng given by t h e o ther pa r ty for t h a t purpose

to jo in in t h e a p p o i n t m e n t of such a rb i t ra to rs as aforesaid, t h e a rb i t r a to r

chosen b y the p a r t y giving such not ice m a y m a k e a n award ex pa r t e

which shall be b ind ing a n d conclusive in l ike m a n n e r as if t h e p a r t y

so neg lec t ing or refusing had chosen an a rb i t r a to r who h a d ac tua l ly

joined and m a d e an award there in .

5. I n all cases where t he r e are n a t u r a l boundar ies be tween

adjoining lands, or where any dispute or difference arises be tween t h e respect ive owners or persons legally possessed of such adjoining lands as to t h e necessi ty or sufficiency of any dividing fence as aforesaid, t h e n t h e same shal l be referred to a rb i t ra t ion in l ike manne r , and shall be subject to t h e l ike award a n d final decision as hereinbefore provided a n d directed wi th respect to t h e va lue of dividing lines or fences as aforesaid.

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