9 Sept., 1907.] FiftJi Convention, C/ianibcr of Agriculture. 573 



on either side thereof shall be liable to the cost of re-pairing such fence in 

 zgiial proportions.'' Next study Sec. 4, Sub-sec. i, defining post and rail 

 standard, — " A post and rail fence at least 3 ft. 6 in., in heigJit of substan- 

 tial material firmly erected. . . . i^t'c." The old fence in question is 

 -clearly not now of " substantial material," though it may have been, nor 

 is it " firmly erected " because a large percentage of the posts is rotted 

 through, mortises split, and rails wasted and broken. Therefore it is 

 apparently not "a sufficient fence," and you are entitled to a new one. 

 But hold on, it is not a fence " out of repair," or a fence " become insuffi- 

 cient." If it should be either of these, then, no new fence, it is a question 

 of repairs. Make up your mind which it is, but remember the thing that 

 cuts the ice 13, not wli^t you think or vour friends think, but what the 

 Court thinks after the other man and a " sufficient " solicitor shall have had 

 a go. As the Statute stands the better opinion would be that it is a case 

 for repairs. Remember, however, another most unsatisfactory state of 

 affairs under this Act, you cannot compel a man to put up an efficient post 

 and wire fence. The relevant Sub-sec. of Sec. 4 is, — " A substantial wire 

 fence at least 3 ft. 6 in. in height having wires tightly stretched with no 

 greater distance between each of the three loivest zvires or the bottom wire 

 and the ground than 6 inches and the posts. ... 6-=^." Well how 

 do you measure the height, — to the top of the posts or to the top wire? 

 The posts are as much part of the fence as the wire. Well, suppose it 

 is the wire, then you only need four wires to comply with the Act. The 

 section speaks of three, and you give in another to make a top wire so as 

 to have the height of the fence capable of definition. If a man be reduced 

 to the .choice of continually tinkering an old post and rail fence or putting 

 up a new four wire fence, the Act is not of much use to him. It leaves 

 him at the mercy of a neighbour who may be a waster or a captious crank. 

 Scores of times I have had to tell clients to go and do the job single 

 handed or make some sort of a compromise in favour of the other man. 

 This weakness in the Act as regards the specification for a wire fence 

 renders the whole construction clauses, even where not blocked by Common 

 Law Agreements, quite useless. The only practicable fence now-a-days 

 is a post and wire fence, and if you cannot get a sheep-proof post and wire 

 fence under the Act, what is the good of the Act to you ? Other forms of 

 fences which might be sheep-proof would amount to more for your half 

 of the line than the whole cost of the post and wire for the full length of 

 the line. This, then, being the present unsatisfactory position of the law 

 relating to Fences, what is to be done? The thing to do is to cast the 

 law into such shape as that people may resort to its aid without fear as to 

 its cost, and with certainty as to that aid if the case be just and reason- 

 able. 



To do this entails — i. Giving certainty as to the existence or non- 

 existence of fencing agreements, that is, easements under the Common 

 Law. 



2. To face and decide the proposition whether such agreements or ease- 

 ments shall run with the land so as to affect subsequent purchasers or fall 

 to the ground as against such subsequent purchasers. 



3. To make the Fences Act available to compel new fencing or repairs 

 according as the above proposition may be decided, and with certainty as 

 to whether it shall be a new fence or a repair job. 



4. To recognise and make the Fences Act suit the almost universal 

 practice as regards country lands any way, whereby adjoining owners have 

 divided the line into lengths, each taking a portion and being more or 

 less responsible for the maintenance of that portion. 



