J our)tal of Agriculture. [9 Sept., 190; 



it now stands has been Statute Law since 1874, the great bulk of the 

 fencing since selection began in 1869 has been erected outside its pro- 

 Aisions. For practical purposes it has, in the vast majority of cases, 

 remained a dead letter except in so far as that by fixing certain minimum 

 standards of fencing, it has operated as a sort of coercive measure under 

 threat of resort to which, an owner has Ijeen able to induce his adjoining 

 owner to agree to fence up to these minimum standards. The underlying 

 principle of the Act differentiating it from the Common Law has, howe\er, 

 not caught on. This principle is that under the Fences Act, fences for 

 their whole length become, so to speak, the joint propertv of the adjoining 

 owners, whereas under the older system, each adjoining owner owns a 

 certain portion of the fence, subject to certain rights in the other to have 

 the fence maintained. 



To illustrate what I mean: — vSuppose A and B each own selections 

 divided by a boundary running east and west i mile long. If they resort 

 to the Fences Act and put up a fence under its provisions, then the whole 

 line is assumed to be done by them both jointlv for the common benefit, 

 not half each. That is, either a contract is let to a fencer and they each 

 pav half, or they each provide half the materials and labour and do the 

 work either themselves or with hired labour. True they may divide the 

 work and each put up a portion, but the fence all the same remains a 

 common fence, each being liable for half cost of repairs whether in the 

 portion put up by him> or not. That is a fence under the Fences Act. 



If instead of resorting to the Act thev c(jme to an understanding and 

 agree to a kind of fence and A agrees to put up and maintain the fence 

 on the west half, and B that on the east half, then there is an agreement 

 under the Common Law with these results. — First, A"s land acquires what 

 has been termed a " Spurious Easement " over B's land, that for the 

 future the owners of B's land adjoining B's east half of the fencing shall 

 be bound to maintain B's half of the fencing, and in turn A's land becomes 

 .subject to the same sort of " Spurious Easement " in favour of B's land, 

 for the west half of the fencing. Then suppose B sells the west half of 

 his selection to C, and the east half to D. As regards the fencing, what 

 will happen will be this, — C, as the new owner of the west half of B's 

 selection, is not only not under any obligation to maintain half of the 

 original west half, but is entitled to insist that A shall maintain the full 

 length of such half. Further, D cannot call on A to maintain any portion 

 of the east half, — that was B's original liability, but D must, at the risk 

 of consequences later referred to, maintain the east half for its full length. 

 This does not work any hardship on A so far ; he has to maintain one 

 original half, and gets maintained the other original held. But according 

 to the ideas of most people, it is pretty rough on D, who has to maintain 

 the full boundary between him and A without contribution from A. Next. 

 if A sells the west half of his selection to E, E will find that he will 

 have to maintain the full boundarv line l)etween him and C. This 

 state of affairs is not generally known, luit it crops up now and again, 

 to the great annoyance of purchasers of land who find out after they have 

 bought that the whole burthen of maintaining certain lines of fencing falls 

 on them. 



Broadly speaking, if an owner is under obligation to maintain a par- 

 ticular line of fencing and allows it tO' become out of repair, the suffering 

 adjoining owner cannot fetch him under the Fences Act to compel him to 

 repair, for the reason that the machinery provided onlv deals with the 

 joint fencing as referred to alcove. The suffering owner, though entitled 

 under the original fenc^ing agreement to the " Spurious Easement " giving 



