Trespass Act 1872 (WA)

WESTERN AUSTRALIA.

ANNO TRICESIMO SEXTO

VICTORIA', R EGINAE.

*******************Thlt*********E******************nnn

No. IX.

AN ACT to consolidate and amend the Laws relating to Trespasses by Live Stock and to promote the construction of Fences.

[Assented to, 30th August, 1872.]

HEREAS it is expedient to consolidate into one Act and Preamble.

Wof Trespass by Live Stock and to encourage the construction ofamend all the enactments and provisions respecting the law

Boundary Fences: Be it therefore enacted by His Excellency the Governor of. Western Australia and its Dependencies by and with the advice and consent of the Legislative Council thereof:—

1 ON proof before any Justice of the Peace that any entire horse or bull has been wilfully or negligently suffered to stray and	Any person suffering any
to froirfliiltvoanyousN. not moreentire horse or bull to stray

be at large on lands in the occupation of any person other than the pounds

owner of such horse or bull such horse or bull being above the age than Four ;If Ithe

yroti ome,om atnot oliess ittariet

of one year the owner thereof shall forfeit and pay any sum not less	k
than pounds if Icom-
than Two pounds nor more than Four pounds if the offence be coin-	mitted in the night time.

36° VICTORI2E, No. 9.

Trespass by Live Stock. Fences.

mitted in the day time and any suin not less than, Three pounds nor more than Five pounds if the offence be committed in the night time.

LAND OWNER'S POWERS 2 ANY person may seize any live stock of whatever description

AND DUTIES. found trespassing in his house or land and secure . the same in any

What he may do. public pound or if there be no public pound within three miles of

He may pound any animal the scene of trespass then in any private pound or place of security Private place of security if until satisfaction be made for such trespass in manner hereinafter no pound. provided: Provided that it shall be incumbent on the party so

seizing and impounding in any private pound to make within a reasonable time a complaint of such trespass to some Justice of the Peace and until order made by such Justice to treat the animal so impounded with reasonable care to supply it with food proper for its sustenance and to protect it from ill-usage.

What lie ,nay not do. 3 IF any person shall after the passing of this Act unlawfully

But not kill or maim.	and wilfully kill wound or maim any animal whatever trespassing in
If lie do either then com-	his house or lands every such person being convicted thereof before
pensation and fine.	any Justice of the Peace shall forfeit and pay to the party injured
Value of animal.	(over and above the value of the animal if killed and all the costs
Costs &a.	and expenses of the whole proceeding including necessary witnesses fees of Court and incidental expenses) any such sum of money not
Fine Ten pounds maximum.	exceeding Ten pounds as to such Justice shall seem meet and in default of payment of the entire sum so adjudicated either forthwith or within such time as such Justice may allow the person so con-
In default, gaol three	victed shall be committed to the common gaol or house of correction
months.	for a period not exceeding three months with or without hard labor as to the convicting Justice may seem meet: Provided that nothing herein contained shall apply to any person killing any dog pig goat poultry or pigeon found trespassing in his house or land. Provided also that any person who shall kill any dog pig goat poultry or pigeon found trespassing as aforesaid shall leave the body of such animal or bird exposed to view on the premises where killed for the space of six hours and upon the expiration of that time if the owner of such animal or bird shall not have claimed and removed the body of such animal or bird the person so killing such animal or bird as aforesaid may dispose of the body of such animal or bird in any manner he may think fit. And provided also that any person who shall kill any dog pig goat poultry or pigeon and dispose of the body of any such animal or bird as aforesaid shall be entitled to compen- sation for any damage hi his house or lands caused by such dog pig goat poultry or pigeon.

36° YICTORI}E, No. 9.

Trespass by Live Stock. fences.

4 IF any entire horse bull or ram above the age of one year May geld bulls stallions

shall be found trespassing on any land and without a keeper it shall	rains and liable to no charge.
be lawful for the lawful occupier of such land to castrate such
animal forthwith if the owner thereof be unknown and three clays
after notice of such trespass to such owner if known such notice	And notice must be given. •
being personal or left at the usual place of residence of such owner
and no compensation shall be given to such owner for any loss
which he may sustain thereby : Provided always that nothing herein	But the claims of either
contained shall be deemed or taken to interfere with or in anywise	party to compensation notaffected thereby.
affect any claim for compensation or any penalty (as hereinafter	Nor penalty.
provided) which may have accrued by reason of the trespass.

5 IF any live stock shall be found trespassing upon any lands He can claim penalties

whether any damage shall be proved to have been committed by such

which are distinct fromcompensation for damages.

live stock or not the owner of such live stock shall forfeit and pay

the sum of Three pence for each head of horses or other great stock

Three pence per head loge

and One penny for each head of sheep and other small stock so

and One penny head

small per

found trespassing as last aforesaid upon the information and com-

plaint of the owner or lawful occupier or the agent of such owner or

lawful occupier of 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 or to the agent of

such owner or occupier and shall be over and above and shall in no

wise affect any claim that may be made by such owner or occupier

or the agent of such owner or occupier for damage done by such

stock in such trespass. Provided always that in every case where

Double penalties on un-

great cattle are found trespassing and not branded with a registered

branded stork.

brand such penalties as aforesaid shall be doubled: Provided also

that the total amount of penalties so imposed shall in no single case

of trespass exceed the amount of Five pounds: Provided also that

But in any case Five pounds

all trespasses committed by the same stock upon the same land and

maximum.

against the same individual prior to the date of any complaint or

One adjudication of penal.

information made under this Act before a Justice of the Peace shall

ties clears all of prior dates.

be deemed and taken to constitute only one offence and to render

the owner of such stock liable for only one such trespass.

NO expense for keep of any live stock impounded for trespass shall be recovered for more than the period of one week unless the	No expense for keep beyond
one week unless advertised.
said stock shall have been advertised with a full description , thereof as hereinafter provided as soon as possible after the same shall have been found so trespassing as aforesaid.

6

NO live stock shall be sold by any order of any Justice of the Peace for the default of discovery of the owner thereof unless the	No stock to be sold by
Justice of the Peace unless
advertised.

7

same

36° VICTORDE, No. 9.

Trespass by Live Stock. Fences.

same shall have been advertised with full description thereof in- cluding marks brands color and height in two newspapers published in the Colony for three successive weeks nor until seven days after the last of such advertisements.

IT shall be lawful for any Justice of the Peace in this Colony

CATTLE OWNER. 3

His liabilities, on complaint upon oath made to him by any person sustaining damage

If impounder complain to a	from live stock as aforesaid to issue his summons for the appearance
Justice of the Peace he may	of the owner of the animal so trespassing (when known or his agent)
issue summons to answer
alleged trespass.	and on the appearance of the owner or agent or in his absence on proof of the service of the summons either personally or by leaving the same at the usual place of residence of such owner or agent to
Justice of the Peace has	examine into the nature and amount of the damage so alleged to
jurisdiction to enter into
plaint.	have been committed and to make such order for the payment of the, value thereof by the said owner or agent to the party injured (whether the last-mentioned party shall have been examined or not) together with all reasonable costs of pounding feeding constable's fees witnesses and other incidental charges as to such Justice shall seem meet and for that purpose to compel the attendance of all necessary witnesses and to administer oaths to all parties examined 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
Distress.	so trespassing when impounded and if needful, by distress 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 for such Justice making such order as aforesaid to make at his discretion reasonable deduction from the amount of damages so ascertained on account of
The impoundees ill-treat-
ment or neglect of animal	any negligence or other misconduct on the put of the person coin,
to be considered and	plaining either by undue delay in making his complaint or by
allowed.	ill-treatment of the animal impounded.

Seven days after third 9 IN all cases in which the animal so trespassing as aforesaid

advertisement.	shall be impounded and the owner thereof shall not be discovered within seven days after the last of the advertisements hereinbefore
May proceed in absence.	required by section seven it shall be lawful for any Justice of the Peace on application and complaint on oath of the party injured or his agent to make such examination order and sale as are herein- before directed to be made in case such owner shall be known.

Remedies. 10 IF any person who shall impound any live stock under this

Cattle owner may complain	Act as hereinbefore provided shall not within 'reasonable time after
to Justice of the Peace after
undue delay of impounder.	make complaint to smile Justice of the Peace Of the damage com-

36° 'HUMBLE, No. 9.

Trespass by Live Stock. Fences.

mitted by such live stock it shall be lawful for any Justice of the Peace residing near the place of impounding on complaint of the

Who can be summoned by

owner of such live stock to summon before him the person impound-	Justice of the Peace.
ing the same and upon appearance of such last-mentioned person
(or in his absence upon proof of the service of such summons either
personally 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 Act authorised to proceed and act on the return of	Who can forthwith examine unto the case as ante, when
any summons issued on the complaint of the person sustaining	mpoder complains.
damages by the trespass of live stock.
11 ON complaint being made to any Justice of the Peace that any live stock has been impounded for a trespass for which no com-	His means of releasing stock
when illegally pounded.
pensation or penalty is recoverable under the provisions of this Act	If impounded when no
compensation due.
it shall be lawful for such Justice to summon before him the person	(see ante.)
so impounding the same and to summon and examine upon oath all	Justice of the Peace to enquire whether such be
necessary witnesses and in case it shall appear to such Justice that	the nature of case.
such stock has been in fact impounded for any such trespass as last	If so, Justice of the Peace
aforesaid it shall be lawful for the said Justice to order the person	stock and damages Fivecan order release of such
so impounding such stock to deliver the same to the owner or agent	pounds the maximum.
thereof and to pay to the said owner or agent such damages (not
exceeding Five pounds) and costs as to such Justice shall seem meet
proper and just. And hi case such order shall not be complied
with within such time as such Justice shall thereby limit and express
for that purpose it shall be lawful for such Justice to levy and raise
the damages and costs awarded by him by distress and sale of the	3. P.'s order enforced by
goods and chattels of the offender and to direct and authorise any	distress and sale See.
constable or police officer to enforce the release and delivery of the	Constable may break open
stock impounded and for that- purpose if necessary to break open	doors &c.
any doors or gates.

12 IN all cases of trespass committed by any live stock the The occupier of land deemed

occupier of land in whose charge the said stock shall be at the time	owner of the cattle.
of such trespass shall be deemed to be sufficiently the owner of such stock to render him liable for all damages and penalties arising from such trespass.

13 FROM and after the passing of this Act the proprietor or Ilhifcxxo.

tenant of any town or suburban allotment in any part of the Colony of Western Australia or its Dependencies shall not be entitled

ICo compensation allowed

under this Act to recover any compensation whatever for any	for trespass on town or
damage committed by any live stock trespassing on such allotment	suburban allotments unless
or to recover any poundage fees or other expenses incuaTed by reason	fenced.
of impounding such live stock unless the portion of such allotment

36° VICTORLE, No. 9.

Trespass by Live Stock. Fences.

trespassed on shall at the time of trespass be enclosed by a sufficient

external fence as hereinafter defined.

Proprietor failing to join in 14 IN every case in which the proprietor or tenant of any

to damages. erection of fence not entitled town or suburban allotment shall under the provisions of an

Ordinance No. 4 of 4th *William IV. 1834 have required the pro- prietor of any adjoining land or his agent to erect the party or common boundary fences between such their respective adjoining lands and the proprietor occupier or agent to whom such requisition shall be addressed shall refuse or neglect to comply with the same in every such case no compensation whatever shall be recoverable for any damage committed on the said adjoining lands of the pro- prietor 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.

If no fence no extra damages15 NO more damages or penalties shall be awarded in respect for trespass on cultivated of trespasses committed upon any grain or other crops in any land land• not being a townsite unless the same shall have been at the time of

such trespass inclosed by a sufficient fence as hereinafter defined

than if such trespass had been upon uncultivated land.

Bounds.] fence to be kept whether within the limits of a townsite or not having cleared and 16 IT shall be lawful for any lawful occupier of private land

clear b7 P y both parties

mutually. kept clear his own side of any boundary fence from rubbish brush-

wood fallen trees blackboys and other dangerous fuel to call upon by notice in writing the occupier of the adjacent private land to clear as aforesaid such boundary fence between the said lands to the

Ten feet. distance of ten feet from the said fence, and if the person so called upon shall neglect to keep his side of the boundary fence so cleared 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 service 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 adjoin- ing proprietors or occupiers) to recover all the costs and reasonable expenses or compensation 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.

Party using boundary fence 17 IF any person shall heretofore have erected or shall erect a

to pay half. sufficient fence dividing his land from the land adjoining thereto

36° VICTORI1E, No. 9.

Trespass by Live Stock. Fences.

and the occupier of the adjoining land shall, after the passing of this Act in enclosing the same avail himself of the dividing fence so erected or any part thereof he shall be 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 be 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.

18 WHENSOEVER any mutual fence erected as aforesaid shall Mutual fences to be mu-

fall into disrepair and become insufficient any occupier of adjoining tually kept in repair.

lands having given notice to the other occupiers of the land divided

by such fence may on their refusal or neglect for a week to

contribute to the maintenance thereof cause the same to be repaired

and made a sufficient fence and shall thereupon be entitled to

recover from such adjoining occupiers rateably their proportions of Regulationsofproportionate

the expense of such repairs in like manner in due course of law. shares thereof.

Provided always and be it enacted that no greater sum shall be recovered from any person under this Act hi respect of the making or repairing of any fence than the proportionate share of such portion of the actual cost that would be incurred according to the price in the district at the time for erecting and repairing a fence of the same description as that which has fallen into disrepair and become insufficient.

19 ALL informations and proceedings for the recovery of Infonnatimr within one

damages or penalties under this Act shall be commenced within one	month.
month after the trespasses thereby respectively complained 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.

20 IF it shall appear to any Justice of the Peace on or after Careless herdsmen punish-

the hearing of any complaint for any trespass that such trespass was	able.
committed in consequence and by reason of the negligence or other culpable conduct of the shepherd herdsman or other servant of the person under whose immediate care and charge such live stock were at the time of trespass it shall be lawful for the said

36° VICTORIX, No. 9.

Trespass by Live Stock. Fences.

Justice irrespective of any order he may Make or have made for damages or penalties to mulct the person or servant so guilty .oi such neglect or other culpable conduct of any portion not exceeding Five pounds of his wages whether then due or accruing 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 labor fox any period not exceeding three months and the amount of any such mulct may be -lawfully retained by the master or employer of the person so mulcted in or towards satisfaction of any damages or penalty which such master or employer may have been adjudged to pay by reason of the neglect or other culpable conduct of the person so mulcted.

Appeal against one Justice 21 IF any person shall find himself aggrieved by any order or

of	the Peace.	conviction made under this Act by any single Justice of the Peace
he may appeal to the Supreme Court or the next Court of General Quarter Sessions of the Peace nearest to the place where such conviction was made. Provided that notice of appeal be given in the Court at the time of such order or conviction being made and that a deposit of Ten pounds to answer costs be made at the same time; And the Supreme Court or Court of General Quarter Sessions shall hear and determine the matter of such appeal and shall make such order therein with or without costs to either party as to such Court shall seem meet; And in case of the dis- missal 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 such judgment.

Scale of Fees &c. ao be 22 THE Justices of the Peace for the said Colony in Special

posted up. Session assembled shall as soon as conveniently may be after the

passing of this Act and annually thereafter draw up and settle a list of fees to be paid and allowed in all proceedings to be had under this Act and shall cause the same to be exposed to public view in some conspicuous part of the Court Houses for their respective districts and that until any such special session be held the list of

fees hitherto allowed shall be and continue in force.

not entitled to damages &c. .lessee of lands within lease land situate within the boundaries of a block or section of leased or	Purchaser tillage or mining 23 NO purchaser tillage or mining lessee from the Crown of
unless his land is fenced. licensed Crown land held under a pastoral lease or license his heirs

executors administrators or assigns shall be entitled to recover any damages penalty poundage fees and expenses for or on account of

36° VICTORI1E, No. 9.

Trespass by Live Stock. Fences.

any trespass on such first-mentioned land by live stock from or against the lessee or other occupier of the surrounding lands held under such pastoral lease or license nor shall he or they impound such live stock so trespassing unless such first-mentioned land or the part thereof trespassed on shall at the time of such trespass be enclosed by a sufficient fence. Provided nevertheless that such trespass shall not be wilful nor malicious.

24 ANY person or persons who shall knowingly or carelessly Horse &o. roaming about

suffer any horse mare gelding foal bull cow heifer calf or any pony	in any street &e. Penalty of
mule or ass swine'sheep or goat belonging to him or in his apparent	five pounds.
ownership or in his charge to be tethered or to depasture feed or roam about whether attended by a keeper or not in or upon any street or public thoroughfare forming portion of a townsite and being the property of any town trust municipal or city council shall on conviction forfeit and pay for every such offence a sum not exceeding Two pounds. Provided that nothing in this section contained shall be construed to apply to any town herd draught oxen or cattle which shall be bona fide driven by a keeper stockman or other person straight into through or out of any city or town.

25 IN any case of a complaint for trespass committed upon the Where trespass unavoidable

land , of another either by driving flocks and herds or by riding Justice may refrain from

driving or conducting any horse or vehicle across the same if it shall awarding damage.

be made to appear to the satisfaction of the Justice or Justices

hearing the said complaint that the party complained of was

at the time of such alleged trespass bona fide engaged in some

lawful business or pursuit which by reason of the non-existence

of any neighboring road or customary thoroughfare could not

have been accomplished without such trespass save by a wide

circuit and a considerable loss of time and labor and that such

party had traversed the ground and effected the passage in such a

manner as to commit as little injury as practically possible to the

said land or to the natural pasture growing thereon and without

wilfully making any unnecessary deviation from the most direct

course across the same and without loitering or making any wilful

delay thereon then in every such case it shall be in the discretion of

the said Justice or Justices to refrain from awarding any stun

whatever either for damages penalties or costs for such trespass.

Provided always nevertheless that no fences were broken down

opened or removed no cultivated grounds passed over and no actualProvided no damage has

damage done thereby other than to the natural pasture growing on been done other than to

the soil and that to such an extent 014 in each case as was natural pasture.

practically unavoidable.

36° VICTORIA, No. 9.

Trespass by Live Stock. Fences.

Definition of term " suffi- 26 THE term " sufficient fence" used in this Act shall be

dent fence." construed to mean any substantial fence reasonably deemed

sufficient to resist the trespass of great and small stock including

sheep but not including goats and pigs.

27 THE Ordinances and part of an Ordinance mentioned in the

R epeal of certai n Ordi -

nances. Schedule to this Act are hereby repealed except as to any proceeding under the said Ordinances or any of them and all offences committed before the passing of this Act shall be prosecuted as if this Act had not passed. And whenever the words "Cattle Trespass Ordinance, 1857," occur in " The Public Pound Ordinance, 1861," and in the 34th Victoria Number 25 the words " The Trespass Act, 1872," shall be read instead thereof.

Short Title. 28 THIS Act may be cited for all purposes as " The Trespass

Act, 1872."

In the name and on behalf of the Queen I hereby assent to

this Act.

FRED. A. WELD, Governor.

36' VICTORLE, No. 9.

Trespass by Live Stock. Fences.

SCHEDULE.

Date of Ordinance Title of Ordinance or Act. Extent of Repeal.

or Act.

3 Vie. No. 2.	"An Act to provide a remedy against Horses "and other Live Stock straying in Towns, "and to prevent Entire Horses and Bulls "straying in any part of the Colony."	The whole.
6 Vic. No. 2.	"An Act to make perpetual an Act entitled " An Act to provide a remedy against "Horses and other Live Stock straying in " Towns, and to prevent Entire Horses and "Bulls straying in any part of the Colony.'"	The whole.
14 Vic. No. 24.	"An Ordinance to prevent vexatious proceed- " ings in certain cases of unavoidable " Trespass."	The whole.
21 Vic. No. 7.	"An Ordinance to consolidate and amend the "Laws relating to . Trespasses by Live Stock, " and to promote the construction of ,Fences."	The whole.
24 Vic. No. 8.	"An Ordinance to amend an Ordinance to "consolidate and amend the Laws relating "to Trespasses by Live Stock, and to promote " the construction of Fences."	The whole.
25 Vic. No. 15.	"An Ordinance for consolidating and amend- " ing the Laws relating to the Police in " Western Australia, and for removing and "preventing nuisances and obstructions "therein."	Section 22.
28 Vic. No. 14.	"An Ordinance to amend The Cattle Trespass " Ordinance, 1857.' "	The whole.
30 Vic. No. 6.	"An Ordinance to amend the Ordinances re- " lacing to Trespasses by Live Stock."	The whole.
32 Vic. No. 2.	The whole.
"An Ordinance to amend the Laws relating to " Trespasses by Live Stock."

By Authority : RICHARD PETHER, Government Printer, Perth.