Vexatious proceedings restriction (1851) (WA)

WESTERN AUSTRALIA.

ANNO DECIMO QUARTO

VICTORIA: BEGINS

No. XXIV.

An Ordinance to prevent vexatious Pro- ceedings in certain Cases of unavoidable Trespass.

HEREAS the measure recently adopted in this Colony of Preamble.

Wdisposing of the lands of the Crown, under grazing and

tillage leases, renders unavoidable the passing over tracts of ground either previously granted in fee or otherwise assigned under such

14th Vict, No, 24. 1851.

leases as aforesaid for the purpose of reaching other lands lying beyond the same : and whereas, with the force at present at the disposal of the Survey Department of this Colony, much time will be required to lay out and open such a system of main and branch lines of road as may be required for the purpose of the necessary internal com-

munication consequent upon such a measure as aforesaid ; and w hereas

Where trespass un- it is expedient, in the meantime to prevent numerous vexatious com-

may refrain from a- Be avoidable, justice plaints on account of such unavoidable trespass as above mentioned ;

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, that in any case of a complaint i

warding da mage ;

for trespass committed upon the land of another, either by driving flocks and herds or by riding, driving, or conducting any horse or ve- hicle aerossthe same if it shall be made to appear to the satisfaction of the Justice or Justices hearing the said complaint that the party com- plained 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 neighhouring, road or customary thoroughfare, could not have

been accomplished without--such trespass, save by a wide circuit and a considerable loss of time and labour, and that such party had tra-

versed 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 un-

necessary deviation from the most direct course across the same, and

without loitering or making any wilful delay thereon, then in every

Provided no damage such case it shall.bein the .discretion-of the said Justice or Justices to

has been done other refrain from awarding any sum whatever, either for damages, penalties

tare. ces were broken down, opened, or removed, no cultivated grounds than to natural pas- or costs for such trespass. Provided al ways, nevertheless, that no fen-

passed over, and no actual-damage done thereby, other than to the natural pasture growing on the soil; and that to such an extent only in each case as was practically unavoidable.

Fords lying between	IL AND be it enacted, that if any river, creek, lagoon or estuary
private property may

be constituted tempo-	shall be fordable at a place where either of the banks thereof is pri-
rary public thorough-	vate property, and it shall be made to appear to the satisfaction of the
fares ;	Governor that a thoroughfare across such ford would by reason of the want of any neighbouring ford or bridge, be a necessary or con- siderable public convenience to residents in, and travellers through the circumjacent district, it shall be lawful and competent to the Go- vernor by notice to that effect in the Government Gazette, to constitute
such ford, together with convenient access and egress, a temporary

1851.              16th Viet. No. 24.

public thoroughfare and, at the public expense, to cause to be laid	such roads through enclosed grounds are
out, and and fenced in on either side with post-and-two-rail fence,	to be fenced at public
such access and egress (as far as the same shall run through land	expense ;
already enclosed) by means of a road-way not exceeding thirty-three
feet in breadth over the lands adjacent to either extremity of such ford:
Provided always that the right of property in the soil of any such	property in soil and
road-way and in the fences thereof, laid out and erected under this	fence to remain in owner of the ground,
Ordinance, shall, subject to the public right of passage erected by	subject to right of
such notice, be in the person or persons who are or were proprietors	passage.
of such soil at the time of making such road-way, his, her, or their
heirs or assigns, but without prejudice to the powers of the Governor
or of any other person or persons under any other Ordinance provided
for the construction of public roads ;—provided, further, that it shall be	Notice constituting
lawful for the Governor, by any notice to be published in the Govern-	thoroughfare may be
ment Gazette, to rescind and revoke any previous notice constituting	rescinded.
any such public thoroughfare as aforesaid ; and thereupon the ford, referred to by such rescinding notice, and any road leading thereto or therefrom over private property. laid out under the provisions of this Ordinance, shall cease to be a lawful public thoroughfare.
Not to interfere with

AND be it enacted, that nothing herein contained shall be deemed or taken to interfere with any of the provisions of	7 Viet. No. 15.
an Ordinance passed in the 7th year of the reign of Her present Majesty, intituled " An Act to prevent the spreading of the infectious disease called the Scab in Sheep in the Colony of Western Australia."

III.

IV.

AND be it enacted, that whenever and so often as any public line or lines of communication shall be opened and completed in any	Duration of this Or-
dinance.
particular district, it shall be lawful for the Governor, by proclama. tion in the Government Gazette, to declare that the provisions of this Ordinance shall no longer apply in such district, and thereupon such provisions shall immediately cease to be applicable thereto, save and except as to any trespass or alleded trespass which shall have occurred before the time of publication of such proclamation.

CHARLES FITZGERALD,

GOVERNOR AND COMMANDER-IN-CHIEF.

Passed the Legislative Council, 1

the 21st day of May, 1851. 3

A. O'GRADY LEFROY,

Clerk of the Council.

Printed by authority of the Government, by B. Stirling, Perth.