CO885-(2-3) — Page 500

AND ALSO AS TO PRESERVATION OF GAME.

123

PUBLIC RECORD OFFICE

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Reference -

LTC.O. 885

ALLY WITHOUT PERMISSION OF THE BE REPRODUCED PHOTOGRAPHIC- COPYRIGHT PHOTOGRAPH-NOT TO

PUBLIC RECORD OFFICE, LONDON

122

LAWS IN FORCE IN THE COLONIES AS TO TRESPASS,

AUSTRALIAN from, over, or through the said allotment belonging to the proprietor, or occupied by

the tenant making such requisition as aforesaid.

COLONIES,

If no fence no extra damages for

trespass on

landi.

cultivated

Bonulary fence

to be

kept clear by

Ten fet.

XV. That no more damages or penalties shall be awarded in respect of trespasses committed upon any grain or other crops, in any land, not being a townsite, unless the same shall have been, at the time of such trespass, enclosed by a sufficient fence, as here- inafter defined, than if such trespass had been upon uncultivated land.

XVI. That it shall be lawful for any lawful occupier of private land, whether within the limits of a townsite or not, having cleared and kept clear his own side of any both parties boundary fence from rubbish, brushwood, fallen trees, blackboys, and other dangerous motually.

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 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 clear 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 adjoining 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 boun lus font pay half.

Mutumi fences to be mutually kept in repair.

XVII. That if any person shall heretofore have erected or shall erect a sufficient fence, dividing his land from the land adjoining thereto, and the occupier of the adjoining land shall, after the passing of this Ördinance, in inclosing 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 fonce 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.

XVIII. That whensoever any mutual fence erected as aforesaid shall fall into disrepair, and become insufficient, any occupier of adjoining 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 the expense of such repairs, in like manner in due course of of law: Provided always, and be it enacted, that no greater sum shall be recovered from any person under this Ordinance in 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 an ordinary three-railed fence of split posts and rails.

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XIX. That the term "sufficient fence" as used in this Ordinance shall be construed to mean, when applied to land beyond the limits of a townsite or of ŝtiburban allotments, any fence deemed reasonably sufficient to resist the trespass of great cattle; and when applied to suburban allotments or to land within the limits of a townsite, such fence as ma be reasonably deemed sufficient to resist the trespass of great and small stock, including sheep, but not including goats or pigs.

XX. That all informations and proceedings for the recovery of damages or penalties under this Ordinance shall be commenced within seven days after the trespasses thereby respectively complained of shall have been committed; u shall be heard and deter- mined, 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 pro- visions of an Ordinanc. 14th Victoria, No. 5, 1850,

XXI. That if it shall appear to any Justice of the Peace on or after the hearing of any complaint for any trespass, that such trespass was 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 Justice, irrespective of any order he may make or have made for damages or penalties, to mulet the person or servant so guilty of such neglect or other culpable gonduct 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

COLONIES.

labour for any period not exceeding three mouths; and the amount of any such mulet ArsTUALIAN 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.

XXII. That nothing in this Ordinance shall be construed to interfere with or in any wise affect the Ordinance 14th Victoria, No. 24, 1851.

Surve Sola

not alloted

than by

Appal

J. P.

XXIII. That if any person shall find himself aggrieved by any order or conviction made under this Ordinance by any single Justice of the Peace, he may appeal to the stone next Court of General Quarter Sessions of the Peace, provided that notice of appeal be given in the Court at the time of such order or conviction being maile, and that a deposit of ten pounds to answer costs be made, at the same time, and the Court at such 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 them shall seem meet, and in case of the dismissal 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 their judgment.

XXIV. That the Justices of the Peace for the said Colony in special Session assembled, shall as soon as conveniently may be after the passing of this Ordinance, draw up and settle a list of fees to be paid and allowed in all proceedings to be had under this Ordinance, 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.

XXV. That this Ordinance may be cited as "The Cattle Trespass Ordinance, 1857.”

(Signed) A. E. KENNEDY,

General and Commander-in-Chief.

Passed the Legislative Council this 22nd day of June, 1857.

HENRY WAKEFORD,

Clerk of the Council.

WESTERN AUSTRALIA.

ANNO VICESIMO QUARTO VICTORIE Regin.e.

No. VIII.

&c., to be

fd= d

Short title.

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." WHEREAS it is expedient to amend the Ordinance of the Legislative Council, No. 7, of Preamble 1857, intituled “ An Ordinance to consolidate and amend the Laws relating to Trespasse "by live Stock, and to promote the Construction of 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:

Persons in

[The first section of this Ordinance was repealed by the 31 Vict., No. 10.—G. F. S.J 11. That any and every person not holding a licence, lease, or authority, under the anauthorized regulations for the sale, letting, disposal and occupation of waste lands of the Crown; wupation of who (either by himself, or by his servants, agents, or workmen acting under his directions) waste Crown shall he found in the unlawful and unauthorized use and occupation of any waste lands hundred of the Crown, either by depasturing stock thereon, or by residing or by erecting any

but

or building thereon, or by clearing, enclosing, fencing, or cultivating the same or any part thereof, or by cutting, sawing, felling, splitting, or removing timber and other trees (except sandal wood) thereon being, or by doing, or preparing to do, or having done any act, matter, or thing thereon, which, in the opinion of the convicting Justice or Justices, shall amount to an unlawful and unauthorized use and occupation thereof, he shall on conviction be liable to a penalty of not exceeding one hundred pounds.

III. That the onus of proof of such licence, lease, or authority shall lie on the party accused.

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IV. That any person or persons who shall knowingly or carelessly suffer any horse, wened. mare, gelding, foal, bull, cow, heifer, calf, or any pony, mule, or ass, swine, sheep, or goat belonging to him, or in his apparent ownership, or in his charge, to be tethered, or in any strict. to depasture, feed, or roam about, whether attended by a keeper or not, in or upon any means

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