Higgins v Berry

This case concerned an appeal from the Supreme Court of New South Wales regarding liability for the cost of a boundary fence. The dispute arose when the respondent, a holder of a settlement lease, erected a fence on the common boundary with the appellant, a freeholder, and claimed a contribution towards its cost. The Local Land Board found the appellant liable under section 141 of the *Crown Lands Act 1884*, but this decision was overturned by the Land Appeal Court. The Supreme Court subsequently found in favour of the respondent, holding that a freeholder was liable.

The High Court was required to determine two principal legal issues. Firstly, whether a holder of land in freehold is liable to contribute towards the cost of a fence erected by an adjoining landowner under section 141 of the *Crown Lands Act 1884*. Secondly, whether a holder of a settlement lease is entitled to claim such a contribution from an adjoining landowner under the same section.

The Court, by majority, held that a freeholder is indeed liable to contribute towards the cost of a fence erected by an adjoining landowner under section 141 of the *Crown Lands Act 1884*. The Court reasoned that the term "alienated" in section 141, when read in its natural and ordinary sense, includes land granted in fee simple. The Court found no ambiguity in the language of the section that would justify limiting its application to conditional alienations or excluding freeholders. However, the Court, per Griffith C.J. and Isaacs J., held that a holder of a settlement lease is not entitled to claim contribution under section 141. This was because settlement leases were a tenure introduced by the *Crown Lands Act 1895* and were not encompassed by the specific tenures (conditional purchase, conditional lease, or homestead lease) enumerated in section 141 of the 1884 Act.

The appeal was allowed in part. The High Court affirmed the Supreme Court's decision that a freeholder is liable to contribute to the cost of a boundary fence, but reversed the decision on the point that a settlement lessee is entitled to claim such contribution. Consequently, the appellant, as a freeholder, was not liable to contribute to the fence erected by the respondent, a settlement lessee.