9 Sept., 1907.] h'ijlli Conicuiiou. CJiambcr of AgricuUiire. 571 



him the right to compel the defaulter to maintain the fence, can only 

 resort to the summary provisions of the Fences Act at the cost of aban- 

 doning the Easement and himself accepting for the future the burthen of 

 half the defaulter's line, while he may himself be subject to a '"Spurious 

 Easement " to fence the remainder of the original line. He may. however, 

 resort to the Countv Court to enforce the original agreement, l)Ut it would 

 be l)etter for him, nine times out of ten, to repair the whole line and say 

 nothing more about it. The defaulter, however, incurs some disadvantages. 

 If the adjoining owner's stock accidentally trespass on the defaulter's land 

 through the defaulter's defective fencing, then, generally speaking, the 

 defaulter mav not impound, nor may he recover damages for tresspass. 

 And further, if owing tO' getting caught in the broken wiring of the 

 defaulter's fence the adjoining owner's horse gets his leg or his neck 

 i)roken, the defaulter will most likely be answerable in damages, par- 

 ticular! v if the adjoining owner had directed the defaulter's attention to 

 the defecti\e fencing and requested repairs and these were not effected 

 within reasonable time.. But that way lies litigation, a worse evil under 

 the circumstances than the loss entailed by keeping the neighbour's fence 

 in repair. 



This, that I call the Common Law relating to fences, affects parties 

 every time they mutually agree to divide a line of fencing between them 

 and to erect and repair each " his half," and dd in fact erect each his 

 half. The question whether such agreement must be in writing naturally 

 arises. The safest answer for vou is, it ought to be, and take it from me 

 as gcx)d advice, don't put a post in the ground till you have the other man's 

 signature to the agreement. But if a verbal agreement has been acted on 

 and the fencing has been put up bv both parties, the necessity of writing to 

 evidence the agreement is done away with. It then becomes a question 

 merely of proving that there was an agreement made. If you had obtained 

 and kept the writing, your proof would be ready to your hand ; but without 

 it you mav have to relv on witnesses. But when land has changed hands 

 many times what happens? Well, a great deal of uncertainty, but the 

 old Common Law still applies if either you or the other man can prove 

 the original agreement. The fact that it is difficult of proof only adds 

 to the uncertainty. It becomes a question of e\idence. If it can be shown 

 that for a long period of -s-ears one adjoining owner kept a certain length 

 of fencing in repair, then an agreement will — probably- — be inferred that 

 he or his predecessors in title agreed to do so and the Common Law, not 

 the Fences Act, will rule — particularly if it can be shown that the other 

 adjoining owner kept a corresponding other length in repair. 



Turning now- for a moment to the Fences Act. The policy of this 

 Act as a whole is opposed to the principle underlying the practice ruling 

 under the Common Law. There the idea is to divide the fencinginto 

 lengths, and each man to be responsible for his own length, but giving 

 to the other the benefit of the right to have that length maintained as 

 effective fencing free of cost to him. Under the Act the fulr line of fence 

 is treated as a whole. It is to be erected at the joint cost of the adjoining 

 owners, and all rei)airs are to be effected at the joint cost even though, 

 as I have said abo\e, each ])arty for mutual convenience erects a portion. 

 For instance, if a wire gets broken, section 17 has to he cal]("d into opera- 

 tion. A formal notice has to be served and both paities ha\e to meet on 

 each side of the. fence, agree how it is to be repaired, and in solemn form 

 do the job. I may say right here that the fact that this section has not 

 provoked endless litigation is no credit to the draftsman who conceived 

 it. The infrequency of such litigation may be testimony to the neigh- 



