Fences Act 1891 (SA)

ANNO QUINQUAGESIMO QUARTO ET QUINQUA-

GESIMO QUINTO

A.D. 1891.

No. 538.

An Act to consolidate and amend the Law relating

to Fences.

[Assea fed to, December ~pth, 1891.1

HEREAS it is desirable to consolidate and amend the law Preamble.

W relating to dividing fences-Be it Enacted by the Governor

of the Province of South Australia, by and with the advice and

consent of the Legislative Council and House of Assembly of the

said province, in this present Parliament assembled, as follows:

1. This Act may be cited as The Fences Act, 1891." Short title.

A-638

2, " The Fencing Act, 1865," sections 167 and 168 of The Repeal.

Crown Lands Act, 1888," and the words in any Local Court " in

section 4 1 of " The Impounding Act of 1858," are hereby repealed; but this repeal shall not affect anything done or suffered, or any right or titlc accrued, or notice given, or proceeding commenced under the said Act or section before the passing of this Act; and every Act of Parliament in which the words " Fencing Act, 1865," occur shall be read and construed as if the said words had been omitted therefrom and the words "The Fences Act, 189 1," had been inserted in lieu thereoE

3. I n the construction of this Act, the following terms shall, unless Interpretation of terms.

inconsistent with the context or subject matter, have the respective

meanings hereafter assigned to them respectively, that is to say :-

" Fence " or " Dividing fence " shall mean a fence separating the Fencing Act, 1866.

lands of different occupiers which :-

(4 1s

54" & 55O VICTORIX, No. 538.

The Fences Act-1891.

( A ) Is ordinarily capable of resisting the trespass of great

cattle:

(B) Is ordinarily capable of resisting the trespass of sheep:

( c ) Shall have been or shall be added to, under section 5

hereof, so as to be capble of resisting the trespass

of sheep: and

(D) Shall have been made rabbit or vermin proof under

section G hereof:

G Occupier " shall include any person who is in the actual sccu- pation of, or entitled as owner to occupy, any land alienated from the Crown by grant, agreement, lease, or licence; but shall not mean or include any person in the occupation of or entitled to occupy land held under the Crown by yearly licence under any Act relating to thc sale and occupation of Crown lands heretofore or hcreaftcr to be in force:

K Avail."-Any occupier shall be deemed to have availed himself

of a fence within the meaning of this Act who shall use or

occupy land which abuts on such fence.

PART I. PART I.

CONSTRUCTION OF DlVIDING FENCES.

Occirpiera availing	4, When any occupier has heretofore availed himself, or shall
dividing

them8e1ves fence existing to pay hereafter avail himself', of any dividing fence erected before tile

half value. as sing of this Act, of which he is not the owner. such occunier ;hall, within three months after demand upon hi*; in writing: be liable to pay to the owner of such dividing fence one-half of the value -thereof at the time of such dernind: Provided [hat no occupier shall be liable in respect of the value of ally fence which is sheep proof only, and is not capable of ~'esisting the trcspass of great cattle, until he shall avail himself thereof by keeping sheep upon the land abutting on such fence.

Part occupie* depaa-

turing sheep to pay	5. Whenever anj dividing fence shall have been or shall hereafter be made by either of the occupiers capable of resisting thc trespass of sheep, the other adjoining occupier, so soon as he shall keep and
half cost of making

fenOe sisting capab1e trespass uf re-

sheep.

depasture sheep on the land adjoining the said fence, shall, within three months after demand upon him in writing, be liable to gay to the occupier by whom such fence shall have been made capable of resisting the trespass of sheep as aforesaid, or to any succeeding occupier, for any additions made to such fence for thc purpose aforesaid, one-half of the value of such additions at the time at which the said adjoining occupicr commences to dcpasture sheep.

part occupie*, when

land becomes vermin- 6. Whenever any dividing fence within any district declared

i&eeM, to wy htlif by the Commissioner of Crown Lands to be infested with rabbits

vermin-pmf. Goatof mGng fence or other vermin shall have been, or shall hereafter be, made

rabbit or vermin proof by either of the occupiers, the other -

ad joining

54" & 55@ VICTORIX, No. 538. 3

The Fences Act.- l89 1.

PART I.

adjoining occupier shall, within three months after demand upon him

in writing, be liable to pay to the occupier by whom such fence shall

have been made rabbit or vermin proof, or to any succeeding

occupier, one-half part of the then value of any additions made to

,

such fence for the purpose aforesaid, or interest at the rate of Six

Pounds per centum per annum on the cost of such additions.

7. The occupier of any land not heretofore separated from any Lhbility of occupiers

adjoining lands by any dividing fence may require the occupier of Mnce.

of adjoining lands

such adjoining lands to join in, or contribute in an equal proportion to, the construction of a dividing fence between their respective lands; and so soon as the occupier of such adjoining lands shall avail him- self of any dividing fence, he shall be liable to pay the occupier by whom such fencc was erected, or the succeeding occupier, half the value of the fence at the time when such adjoining occupier first availed himself of such fence.

8. Any person desiring to compel any adjoining occupier to join	Service of notice to
fenee.

in or contribute to the construction of a dividing fence, may, in manner provided in section 28 hereof, serve on such adjoining occupier

a notice to fence, which shall specify the boundary to be fenced

and contain a proposal for fencing the same, and shall specify the

kind of fence proposed to be constructed. -

9. If, within three months aftcr the servicc of any notice to fence	In default of agree-
ment consequent the

the person serving and the person served with such notice do not	person giving notice
agree as to the construction and kind of fence, the person serving	may erect fence.
such notice may construct the whole fence, and may recover half the cost of constructing the same in any Court of competent jurisdiction.

10. Any person erecting a dividing fence shall be entitled to	trees in line may be
Undergrowth and

clear all scrub for a width not exceeding six feet on each side

cleared.

along the length of such fence, and the cost of such clearing

shall be deemed to be part of the cost of such fence.

11, If the occupier of any land bounded by a road shall have	on further aide of
Person wing fence

erected EL fence on the boundary of his land and such road, and

road liable to pay

interest on half coats

any other person shall adopt any. means by which such fence

and contribute to

shall be rendered of beneficial use to himself, or shall avail himself

repair.

of such fence, such person shall be liable to pay to the person who erected such fence, or to the occupier of the land whercon such fence is erected, interest on half the then value of such fence at the rate of seven per centum per annum, for so long as he shall continue to avail himself of such fence, and shall also as long as aforesaid be further liable for half the costs of the repairs of such fcnce:

(1) If the person who shall adopt any means by which such fcnce shall be rendered of beneficial use to hi~nself shall not depasture sheep on any land adjoining such fence or road, he shall be liable to pay interest only on so much of the cost of the fence as was expended to make the same Proviso.

capable of resisting great cattle: (IL) If

4 54" & 55" VICTORIE, No. 538.

The Fences A c t. 1 8 9 1.

PART I. (2) If such fence shall not be in any district "infeeted with vermin, such person shall not be liable to pay the interest on so much of the cost as to make such fence rabbit or vermin proof.

MAINTENANCE AND REPAIRS OF FENCES.

Ad'oiniq occupiers 12, When any dividing fence made or to be made shall be out

to heep d~id ing

fences in repair.	of repair. or become insufficient, the occupiers of land on either side thereof shall be liable to the cost of repairing such fence in equal proportions.
Procedure tocompel

contribution to the 13. The occupier of any land separated from any adjoining

of h i d i n g land by a dividing fence may, in manner provided by section 18

fence.

hereof, serve a notice upon the occupier of such adjoining land requiring him to assist in repairing or renewing such fence, and if such occupier shall refuse or neglect for the space of fourteen days after the service of such notice to assist in repairing or renewing such fence, it shall be lawful for such first-mentioned occupier to repair or renew such fence and to demand and recover of and from such other occupier half the cost of repairing or renewing the same: Provided that if any dividing fence or any portion thereof shall be destroyed by acci-

dent, the occupier of land on either side may immediately repair or

renew the same without any notice, and shall be entitled to recover half the expense of so doing from the occupier of the adjoining land: Provided always that in case such dividing fence shall have been destroyed by fire, or by the falling of any tree or trees, the occupier through whose neglect (if any) such fire shall have originated, or

caused injury to the fence, or such tree or trees shall have fallen,

shall be the party bound to repair or renew the entire of the fence so

damaged as aforesaid.

PART 1x1. PART 111.

GENERAL PROVISIONS.

Interest recoverable. 14, In any case where a person shall be liaable to pay interest

on the half cost of a dividing fence, such interest shall be r&overable

in like manner as the half cost of a dividing fence is recoverable.

Act not to interfere	15, Nothing in this Act contained shall be deemed or taken to affect any covenant, contract, or agreement made or hereafter to be made relative to fencing between landlord and tenant, or between occupiers of adjoining land.
with agreements.

Person~comtructing 16. Every person engaged in constructing or repairing a fence

fences can enter upon

under this Act, his agents and servants, may, wit h or without h~rses,

cattle, carts, or carriages, at all. reasonable times during such con-

struction

54' & 55' VICTORIW, No. 538.

The Fences Act.- l89 1,

struction or repairing, enter upon the contiguous lands adjoining such fence, and do thereon such acts, matters, and things, except

the cutting and felling of timber, as are necessary or reasonably

required to carry into effect the construction or repairing of such

fence.

17. Any person may come in and defend any proceeding under	Power of landlord to
oome in and defend

this Act against any tenant of such person in consequence of' which proceeding against his

such person may ultimately incur any liability, and any defence

tenant under this Act.

which the person originally proceeded against might set up shall be

available to the person so coming in to defend.

18. Any notice or demand to be given or made under this Act may	Noticerr, how to be
served.

be in writing or in print, or partly in writing and partly in print, and signed by the person giving or making the same, or by his attorney or agent, and may bc served upon thc person resident upon the land, or, if there bc no such pcrson, then such notice or demand may be served on the occupier or occupiers, or one of them, either personally or by leaving the same at or by forwarding the same through the post office in an envelope addressed to him or them at his or their usual or last lrnown place of abode or business in the province; and

if there shall be no such occupier residing in the province, the

service of such notice may be dispensed with.

19. No greater sum shall be recovered from any person under Maximum rates to be

this Act for the cost of constructing, repairing, or making sheep-	recoverable for fencer,
proof or rabbit or vermin proof any fence than the amount which would be payable if such fencc had been an ordinary fenc l, and had been constructed, repaired. or made sheep-proof or rabbit ar vermin proof for the price usually paid in the district for constructing, repairing, or making sheep-proof, or rabbit or vermin proof, such a fence at the time when such sum first became payable.

20, Any person who shall suffer the layers, roots, branches, or cuttings of any briar, furze, or prickly pear hedge upon his land to	reeponaible in certain
0 wner of hedge to be
C&&3B.
grow upon or over any land the property of any other person, so as to injure such other person's land, shall, within three months after being thereunto required by writing under hand of such other person, remove such layers, roots, branches, or seedlings, and in default thereof be liable to a penalty not exceeding Two Pounds; and after such default such other persons may remove such growth, and, on summary proceedings before two Justices, may recover from the occupier or owner making such default the expenses included in such removal.

21. Any Special Magistrate or two Justices of the Peace, not Special Ma@strate

interested in the matter at issue, shall have jurisdiction in the manner bT, j d 8 w n in or two Juatlces to

provided by an Ordinance, No. 6 of 1850, or any other Act in force g g g d e r **enV

relating to the duties of Justices to hear and determine any claim

between adjoining occupiers for contribution, provided such claim

ahall not exceed Twenty Pounds. 22. In

B 4 3 8

54' & 5 5 O VICTORIW, No. 538.

The Fences Act.- l89 1.

PART 111. 22. In any case or proceeding under this Act the Court may enter

court may enter a verdict for the person claiming contribution, notwithstanding any

verdiot forthe person demand or notice provided for by this Act may not have been made

claiming, &c. or given, either wholly or in part, if the Court shall be satisfied that

the person entitled thereto waived such notico or demand.

Sufllcienoy of fence

to be decided by 23. In every case or proceeding under this Act, where any dis-

C O U ~ ~.	pute shall arise as to sufficiency of the service of any notice, or any waiver of notice, or as to the sufficiency of any fence, or whether
it was necessary to erect any rabbit or other vermin proof fence,
such question or dispute shall be determined by the Court.

In the name and on behalf of Her Majesty, 1: hereby assent to

this Bill.

KINTORE, Governor,

L -

Adelaide : By authority, C. E. BRIBTQW, C+overnment Printer, North-terrace.