57- Journal of Agrictilfitre. [9 Sept., 1907. 



bourly fair-dealing of farmers generally, but more probably it is evidence 

 of that deserved, but what most certainly ought to be unwarranted, dread 

 of the law which makes a man put up with heaps of annoyance rather than 

 resort to its aid. If this paper reaches print, I will have part of this 

 section set out as a foot-note and invite any farmer, who may fancy his 

 ability to handle the simple looking proposition set him by the drafts- 

 man of preparing a notice under it, to prepare such a notice as will support 

 proceedings under the section if the other man chooses to evade his obliga- 

 tions.* Common sense suggests that the notice should appoint a time, 

 but the section does not so empower, and what is to prevent the other man 

 from actually going, and later saying he went, to the fence several times 

 within the week ready and willing to assist, but the " Noticer " was not 

 on hand ? 



The main difficulties that face a man when he desires to resort to the 

 Act to compel a neighbour to fence are, first of all, to be sure that a 

 Common Law agreement does not alreadv rule, and second, to be sure as 

 to whether it is a question of construction of a new fence or of repairing 

 an old one. I have already explained how an old agreement may affect 

 his land as a "Spurious Easement." Now to illustrate these difficulties. 

 Take a line already fenced, but the fence on which is, to a man who likes 

 good fencing, " dead to the world." You may serve a notice requiring 

 your adjoining owner to erect a new fence. You may get an order of 

 Justices prescribing the kind of fence and directing how it is to be erected, 

 and relying on such order you may erect the fence, the adjoining owner 

 lying low all the time and saying and doing nothing. Then, when you 

 take proceedings to recover half the cost, you mav be met with either or both 

 of these practicable defences, — ist, That you were bound under an old 

 agreement by former owners to fence the line yourself ; 2nd, That the 

 fence already there should have been repaired and did not require a new 

 fence. Further, you may be met with a variety of technical defences in 

 the way of faulty notices, &c. If you have not retained a solicitor you 

 are bound to- have made some error in procedure that will knock you out. 

 If you have retained a competent solicitor, then nine times out of ten you 

 will never get as far as sueing, as your solicitor will have shown you so 

 many difficulties and uncertainties that you will have decided to have put 

 up with the loss and not risk proceedings. To show how the second defence 

 above indicated may defeat a just claim, — Take the case of a post and 

 rail fence many years old, fortified in places with old No. 6 wire — as so 

 many of them are, and in other places with No. 8, and with from 50 to 

 70 per cent, of the posts rotten and a large percentage of the rails past 

 efficient service. Well, here are the relevant sections: — Section 5 — " The 

 occupiers of adjoining land not divided by a sufficient fence shall be liable 

 to join in or contribute to the construction of a dividing fence between such 

 lands in equal proportions." By the way, " a sufficient fence " means 

 there, a fence up to one of the standards fixed by the Act as to which I 

 will speak later. Now, Sec. 16 — " When any dividing fence made or to 

 be made shall be out of repair or became insufficient, the occupiers of land 



* Section 17. The occupier of any land separated from any adjoining 

 land by a dividing fence may serve a notice upon the occupier* of such 

 adjoining land requiring him to assist in repairing such fence and if such 

 occupier shall refuse or uegleet for the space of one week after the service of 

 such notice to assist in repairing such fence it shall be lawful for such first- 

 mentioned occupier to repair such fence and to demand and recover from 



such other occupier half the cost of repairing the same &c. 



* Ofcupier includes " owner." 



