Town lots, fencing of (1834) (WA)

WESTERN AUSTRALIA

MIL. IV. REGIS

No. 4

An Act to regulate the Fencing of Town and Suburban

Allotments. [Assented to 7th April, 1834.

Preamble

HERE AS the cultivation and improvement of located lands

lying in and adjacent to town sites in the Colony of Western

Australia may be much promoted by compelling, under certain

restrictions, the erection of party fences thereto : Be it therefore

enacted by His Honour the Lieutenant-Governor of Western Australia

and its Dependencies, with the advice of the Legislative Council, that

the proprietor or tenant of a town or suburban allotment or his or her

4 GUL. IV. No. 4

Trespass (Fencing)

agent respectively being desirous of erecting the common boundary Boundary knee

fence between the same and any next adjoining land (not beim,. Crown area bae„e.r r Zi:

land reserved for any special purpose), whether within or without any requisition manner and of such kind or description as may thereafter be mutually agreed on by or on behalf of both the said proprietors, or as for want of such agreement shall be determined by two arbitrators, of whom one shall be named in writing by the party making such requisition, and the other shall be named in like manner by the party to whom such requisition shall be addressed.

town site, may require in writing the proprietor of such adjoining land a=„tt"

(or the agent of such last-mentioned proprietor if absent from the said

the provisions of this Act shall be served either personally on the party such requisition 2. And be it further enacted that every requisition made under Mode of serving

to whom the same shall be addressed or by leaving the same at the last

or usual place of abode of such party, and that every such requisition

to fence any adjoining ground whereof the proprietor shall be unknown rune„ proprietor

or absent from the said Colony without any known agent within the HQ` 1"

same, shall be made and published by three successive advertisements

in the ' Government Gazette ' of the said Colony.

3. And be it further enacted that if the proprietor or agent on Bert he ,a any such requisition shall be served or to whom the same shall ,T.2/101a	rt
lliriteTzbt

be notified by three successive advertisements as aforesaid shall not =siladrmoirim within fourteen days after such service, or within the like period after the bounTary the last of such advertisements, either execute a written agreement for idee'grei;,,B„r„d„e of

the erection of the boundary fence so required or join in appointing same

arbitrators as aforesaid for determining the nature and mode of con-

structing of such fence ; in such case the Government Resident at the

town site in which the land required to be fenced is situate (or any

neighbouring Justice of the Peace, in case there shall be no Govern-

ment Resident at such town site or such Resident shall be sick or

absent) shall proceed on the application and together with the arbi-

trator of the party making such requisition to determine in writing

the kind or description of such common boundary fence, and the

particular moiety thereof to be erected by the party to whom such

requisition shall be addressed, and a copy of such determination shall

be served on such last-mentioned party in the same manner as such

requisition, or in case of the absence of such last-mentioned party from

the said Colony, shall be notified by an advertisement in the said

Gazette.'

4. And be it further enacted that any such written agreement or Agreement or

determination as aforesaid or any award made by arbitrators appointed ;1=1,1,agti,,Ilet,°.

in pursuance of any such requisition as aforesaid, of which agreement, publieation in	award, or determination, notice shall be published in the said Gazette,'the'Gazette'
shall from the date of such notice be binding on the heirs and assigns of the parties making such agreement, or affected by such award or determination.

5. And be it further enacted that if any proprietor or agent, If the part

having been served with any such requisition, or to whom any such seeree

requisition shall be notified by advertisement as aforesaid, shall not untried urc hinrViclicitnicemt

within three calendar months after the execution of any written agree- months LOUIllar

ment made in pursuance of such requisition, or within the like period 'lath °f agreemen; Sm., the

4 GUL. IV. No. 4

Trespass (Fencing)

— —

party making	after the date of any award made by arbitrators appointed in pursuance
the requisition
may proceed to	of such requisition, or within the like period after the service or
erect such fence	notification by advertisement of any such determination made on de- fault of appointment of arbitrators as aforesaid, erect and finish a moiety of the fence referred to by such agreement, award, or deter- mination, and in conformity therewith respectively ; in either of the said cases, the party making such requisition as aforesaid may proceed, without any further notice or demand, to erect the particular moiety required to be erected by such requisition, of the common boundary
And may enter	fence therein referred to ; and for that purpose to enter with all
on the land and
cut dorm neces-	necessary workmen, servants, cattle and vehicles, on the adjoining
sary timber, &e.	ground so required to be fenced off, and may there cut down, dig up, and prepare all necessary timber, earth, or other materials for con- structing such moiety ; and may cut down and remove any tree or trees which may in reasonable probability endanger such fence when erected ; or which may obstruct the erection thereof.
Mode of recover-	6. And be it further enacted that any proprietor, tenant, or agent, fence under the authority of this Act, and shall be desirous of recovering the costs thereof in the mode hereby provided, shall make affidavit, to be sworn before any Justice of the Peace, that such moiety or other portion of party fencing has been erected at the costs therein mentioned on or in respect of the adjoining allotment therein described,
ing costs of such
fence from the	who shall have erected a moiety or other less portion of any party
opposite party
Affidavit may be	in conformity with the provisions of this Act ; to which affidavit shall
registered in	be annexed a certificate, under the hands of two respectable house-
Registry of
Deeds, &c.	holders, certifying that such costs are according to the market prices of fencing labour and materials ; and every such affidavit and cer- tificate may be registered in the office of the Registrar of Deeds and Transfers.

such costs shall 7. And be it further enacted that the costs sworn to in any such on the allotment,become a charge affidavit shall, from the time of such registration thereof as aforesaid, with interest become a charge, in the nature of a mortgage debt, on the allotment

described in such affidavit ; and shall bear interest after the rate of ten pounds for one hundred pounds by the year, to be raised, if not sooner paid, at the same time and in the same manner as the said costs.

If such costs not	8. And be it further enacted that if any such costs as aforesaid months from the date of registration thereof, together with all interest due thereon, the party expending the same may, after fourteen days' notice in the' Government Gazette,' require any Government Auctioneer to sell the allotment charged with such costs.
paid the land
charged there-	shall not be paid on or before the expiration of twenty-four calendar
with may be sold

Governor may	9. And be it further enacted that it shall be lawful for the
order the erec-

tion of dividing	Governor, or other Officer for the time being administering the
lessees between	Government of the said Colony, to order the erection, at the public
streets, &c., and
private allot-	expense in the first instance, of any common boundary fence between
ments	a street or highway, and any town allotment not being fenced in the time and manner• prescribed by the conditions and regulations
Costs thereof	under which such allotment was granted ; and the costs of every
certified and
registered	such fence, so erected as last aforesaid, being estimated according to the market price of labour and materials, shall be certified, together with a description of the allotment- thereby fenced off, under the hand of the Government Resident, or other Officer under whose

4 GUL. IV. No. 4

Trespass (Fencing)

superintendence the same shall have been erected, who shall cause such certificate to be registered in the office of the Registrar of Deeds and Transfers ; and from the time of registration of such certificate, To become a

such costs shall become a charge on the allotment described in such ;,1,!=::ar

certificate ; and if such costs shall not be paid to the Collector of meld,

Colonial Revenue, on or before the expiration of twelve calendar

months from the date of such registration, it shall be lawful for the If not paid the

Governor, or other Officer for the time being administering as afore-	land may be sold
said, to direct any Government Auctioneer to sell such last-mentioned allotment by public auction after fourteen days' notice in the said Gazette.'
10. And be it further enacted that the proprietor or tenant of a town or suburban allotment next adjoining to ground belonging to	The proprietor, ehe., adjoining
unreserved
His Majesty (not being reserved for any special purpose) may, at	erect fence
Crown hind may
pleasure, erect the common boundary fence between such allotment and
such adjoining Crown land, and may require in writing the person who
shall subsequently obtain a grant from His Majesty of, or license to
occupy, such adjoining Crown land, to appoint in writing an arbitrator
for the purpose of awarding (together with an arbitrator to be in like
manner appointed by the party making such requisition) the proportion
to be paid by such subsequent grantee or occupant of the value of such
fence ; and in case the party to whom any such requisition as last	Mode of recover- ing a proportion
aforesaid shall be addressed shall not, within fourteen days after service	of the costs of
thereof, appoint an arbitrator in conformity therewith, the Government	such fence
Resident of the town site in or nearest to which such adjoining Crown land shall be situate (or any neighbouring Justice of the Peace, in case there shall be no Government Resident at such town site, or such Resi- dent shall be sick or absent) shall, on the application and together with the arbitrator of the party making such requisition as last aforesaid, determine under their respective hands the proportion of the value of such fence to be paid by the party obtaining such grant or license of occupation ; and a copy of such determination shall be served on the same person and in the like manner as any such last-mentioned requi- sition; and every such award or determination as last aforesaid may be registered in the Office of Deeds and Transfers ; and the proportion or sum thereby awarded to be paid shall, from the date of such registra- tion, become a charge in the nature of a mortgage debt on the land so granted as last aforesaid, annhall bear interest after the rate of ten pounds for every one hundred pounds by the year ; and if such pro- portion or sum, together with all interest due thereon, be not duly paid within twenty-four calendar months after registration thereof, the party entitled to receive the same may, after fourteen days' notice in the said Gazette,' call upon any Government Auctioneer to sell the land charged therewith by public auction.
1L And be it further enacted that the proprietor or tenant of any town or suburban allotment, who shall have erected, before the com-	Mode of recover-
ing a. proportion
of the costs of party fencing
mencement of this Act, at his or her sole expense, the whole of any	erected before
common boundary fence between such allotment, and any next adjoining	the date of tins
ground, whether within or without any town site, shall be entitled to	Act
recover against the proprietor of such last-mentioned land, a proportion of the value of such last-mentioned fence, by such and the like mode of proceeding as is hereinbefore provided and directed for recovering a

4 GUL. IV. No. 4

Trespass (Fencing)

proportion of the value of any boundary fence, erected by the proprietor or tenant of any allotment, between the same and any next adjoining unreserved Crown land.

Mode of selling	12. And be it further enacted that every such Auctioneer as aforesaid, who shall be called upon to sell any land liable to sale under the provisions of this Act, is hereby required to sell the same by public auction (but subject nevertheless to all charges and incumbrances thereon existing, and duly registered before the registration of the costs of fencing, for the recovery of which such land shall be sold) :
lands under this
Act
Distribution of	and by and out of the proceeds, after deducting the expenses of sale, to
proceeds	pay to the person or persons on whose application such sale shall have been made, the costs of fencing and interest charged by the provisions of this Act on the laud thereby sold, and sought to be recovered by
Proviso in ease	such sale : Provided always that when any doubt or dispute shall arise
of dispute as to
right of sale or	as to the right of any person applying for the sale of land, under the
appropriation of
proceeds	authority of this Act, to make such application, and notice of such dispute shall be given to or received by the Auctioneer called upon to make such sale ; in such case, it shall not be incumbent on such Auctioneer to sell in conformity with such application until such dispute shall have been decided by some competent Court of law in the said Colony ; and that in case there shall be any doubt or dispute after any such sale as aforesaid, as to the person or persons entitled to receive the fencing costs sought to be recovered by such sale, or as to the person or persons entitled to receive the surplus of the proceeds of such sale after all lawful deductions : in either of the said cases, it shall be lawful for the Auctioneer effecting the sale at or after which any such dispute
Proceeds paid	shall arise, to pay the disputed proceeds or disputed portion of proceeds
into Civil Court	into the hands of the Registrar Clerk of the Civil Court of the said Colony, to be disposed of as the said Court shall determine and direct.
Estate or interest	13. And be it further enacted that when any land sold as aforesaid prior charges and incumbrances as aforesaid, be vested by force of such sale in the purchaser thereof ; and if any land so sold as aforesaid shall be held by a mere license to occupy, and the conditions of such license shall at the time of such sale have been duly fulfilled, in such case the purchaser of such land at any such sale as aforesaid shall acquire the same right to claim a grant thereof from the Crown, as was possessed by the proprietor thereof at the time of such sale; but if the conditions of such license shall not at the time of such sale have been duly fulfilled, in such case the right or interest acquired by the purchaser of such land at any such sale as aforesaid, shall be a right to a first license of occupation for the same term and upon the same conditions as the said
to be acquired by

purchasers at shall at the time of such sale be held by a grant from His Majesty, all

aforesaid	any snel,sale as the estate and interest conferred by such grant shall, subject to all such
Every purchaser originalori license; ; and in any of the said three cases, the purchaser
entitled to
memorandum of shall be entitled to receive a written memorandum of the p articulars
sale of such sale, from and under the hand of the Auctioneer effecting the same ; and such memorandum shall be duly registered in the same manner as any instrument of private transfer would by any law for the time being in force in the said Colony be required to be registered.
No person to 14. And be it further enacted that no person who shall have erected
recover under
this Act miless any portion of a party fence under the authority of this Act shall be
his own Portion entitled to recover the costs thereof in the manner hereby provided,of fence be first
erected

4 CUL. IV. No. 4

Trespass (Fencing)

until such person shall have first erected his or her own moiety of

such fence.

15. Provided always and be it further enacted that it shall be lawful Any mortgagee, for any mortgagee, lessee or other person claiming any estate or interest Iper„Ir,,-,„allel",y in any land charged with any such costs as are hereinbefore mentioned,

to prevent the sale of any such land by payment of such costs and all enem"	fencing costs
interestinterest due thereon, at any time before the day on which such sale can be lawfully had by authority of this Act ; and the amount of costs and interest so paid, may be deducted, together with legal interest on such amount after the current rate by any lessee paying the same out of

paying the same to his or her mortgage debt, and shall be payable, mortgne debt

the rent payable by such lessee ; and may be tacked by the mortgagee Tacked to

together with interest thereon after the current rate, at the same time

and leviable in the same manner as such mortgage debt.

16. And be it further enacted that on complaint on oath to any who may

Justice of the Peace by the proprietor of any town or suburban allot- ,717„dfort"- inent or by his or her agent that he or she has required, in writing, reprtirs7how

the proprietor or tenant of any adjoining allotment to effect any repairs

iecoveted

alleged to be necessary in the common boundary fence dividing the said respective allotments, as ought by any agreement or award or otherwise by law to be effected by such last-mentioned proprietor or tenant, and that such requisition has not been complied with for the space of fourteen days after service thereof, it shall be lawful for such Justice to summon before him the party so complained against, and to summon and examine upon oath all necessary witnesses, and to make such order respecting such repairs as to him shall seem meet ; and in case the person so complaining shall, under authority of any such order, effect any such repairs, and shall require in writing the proprietor or tenant, on whose account the same shall have been so effected, to pay the costs thereof, and such last-mentioned requisition shall not be complied with within the space of fourteen days after service thereof ; in such case it shall be lawful for any Justice of the Peace on complaint of the person so acting under any such order as last aforesaid to levy and raise the costs of such repairs by distress and sale of the goods and chattels, wheresoever found, of the party not complying with such last-mentioned requisition.

17. And be it further enacted that if any fence erected or about to Jpstiees of the be erected under the authority of this Act shall appear to be endangered „1„Za%,e by any tree or trees or the erection thereof shall be obstructed by any Irv?' or

fence, if it shall appear to such Justice after personal view or inspection that such fence is or might be endangered or obstructed by any tree or trees or natural impediment, to authorise in writing the cutting down or removal of such tree or trees or impediment by the party making such application as last aforesaid, and to make such order as to him shall seem meet touching the costs of such cutting down or removal ; and the amount of costs awarded by any such order shall be recoverable

natural impediment, and the proprietor of the land on which such tree ilanVeieZeras to

or trees or impediment shall be situate shall refuse, after written fe"1e8

application, to allow the same to be cut down or removed (or if the

proprietor of such last-mentioned land shall be unknown or abroad

without any known agent in the said Colony), it shall be lawful for any

4 GUL. IV. No. 4

Trespass (Fencing)

in the same manner as the ordinary costs of party fencing are hereby made recoverable : Provided that the proprietor of the ground upon which such tree or trees or impediment shall be situate, or his or her agent, shall in all practicable cases have previous notice by summons or otherwise of any such view or inspection.

Penalty on

wilfullyobstruct- 18. And be it further enacted that if any person shall, by force or

ing, &c., persons	otherwise, obstruct, hinder or molest any other person or persons
erecting or re-
pairing fences	acting under the authority of this Act in or during the erection or
under this Act	repairing of any fence, or the cutting down or removal of any tree or trees or impediment, every person so offending shall for every such offence, on being summarily convicted thereof by any one Justice of the Peace, forfeit and pay (besides all costs of conviction) any sum not exceeding ten pounds to the use of His Majesty, his heirs and successors.

Arbitrators ap-	19. And be it further enacted that any arbitrators appointed for
pointed under

this Act may	any of the purposes of this Act, either by the mutual agreement of
apportion, &G.,
and may appoint	parties interested or by the provisions of this Act, are hereby em-
umpires	powered to determine the particular portion of any party fence to be kept in repair by each of the respective proprietors of the land divided by such fence ; and in case any such arbitrators shall not be able to agree on their award it shall be lawful for such arbitrators to refer all matters submitted to their arbitration to the decision of an umpire, to be by them jointly appointed in writing.

Holders of land	20. And be it further enacted that any person holding any land
by license

deemed pro-	within the said Colony, by or under a license to occupy, shall be deemed
prietors	a proprietor within the meaning of this Act.
tering documents
Mode of regis-	21. And be it further enacted that the Registrar of Deeds and determination as aforesaid required or permitted to be registered by this Act by making an entry thereof respectively in his Registry Book of Memorials, setting forth the date of filing the same respectively, the name of the person making such affidavit or certificate, and the name of the person filing any such award or determination as aforesaid ; the •description of the allotment therein respectively described ; and the amount of costs thereby respectively sworn to, certified or awarded.
to be registered	Transfers shall register every such affidavit, certificate, award or
under this Act
Amount of fees
payable to Regis-	22. And be it further enacted that there shall be paid to the such affidavit, award, determination or certificate as is hereinbefore required or permitted to be registered, the fee or sum of five shillings ; and for receiving and entering any such memorandum of sale as afore- said, the same fee as shall for the time being be payable for the receipt and registration of any deed of bargain and sale ; and for every search for any such affidavit, award, determination, certificate or memorandum the fee or sum of two shillings and sixpence : Provided always that every certificate hereinbefore required to be registered of the cost of any street or highway fence erected by or on account of Government, in pursuance of the provisions for that purpose herein contained, shall be registered without the payment of any fee.
trar of Deeds	Registrar of Deeds and Transfers, for receiving and registering any
and Transfers
Right of appeal	23. And be it further enacted that if any person shall think him- self aggrieved by any judgment, order or conviction of any Justice of the Peace made under this Act such person may appeal therefrom to
to Quarter
Sessions

4 GUL. IV. No. 4

Trespass (Fencing)

the next Court of Quarter Sessions, which Court shall hear and deter- mine the matter of such appeal, and shall summon all necessary parties and witnesses, and shall make such order in affirmance or reversal of the judgment or conviction appealed from, and for payment of the costs of the appeal, as to such Court shall seem meet ; and shall enforce such order, if necessary, by distress and sale of, the goods and chattels of any person refusing or neglecting to obey such order, or by imprison- ment of such person for any time not exceeding six calendar months : Provided that notice of such appeal be given to the Justice from whose judgment, order or conviction such appeal shall be made at the time of such judgment, order or conviction being passed or made ; and that such appellant deposit with the last-mentioned Justice the sum of five pounds, to enter into a recognizance with two sureties for the purpose of securing payment of the costs of such appeal.

24. And be it further enacted that this Act shall commence and conameacemea be in force with respect to all parts of the said Colony (save and except	of this Act
Augusta and Albany) on the tenth day of July in the present year, and shall commence and be in force at Augusta and Albany on the tenth day of October in the present year.

RICHARD DANIELL,

LIEUTENANT-GOVERNOR AND COMMANDER-IN-CHIEF.