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Divisional Boundaries in Towns
expedient to make provision at the same time for a final adjustment of the divisional boundaries of the allotments in such towns, as well in order to correct many inaccuracies which have occurred therein as also to prevent future litigation amongst the owners of adjoining allotments: Be it therefore enacted by His Excellency the Governor of Western Australia, by and with the advice and consent of the Legislative Council thereof, that it shall be lawful for the Governor to direct the Surveyor-General, that at the same time that the external lines of the blocks of allotments in each town are laid out for the purpose of defining the proper limits of the streets thereof, he shall cause each block to be subdivided into its proper number of component allotments having a special reference to the actual position of any substantial building or durable fence which may at present exist thereon so as to interfere to as small an extent as possible with any such substantial erections, but at the same time taking care to apportion to each allotment at least the full extent of boundaries contained in any grant thereof made or to be made by the Crown.
4. And be it enacted that all boundaries of allotments so entered and signed as aforesaid shall be deemed and taken to be the true boundaries of such allotments respectively, all former descriptions thereof in any title deed or otherwise notwithstanding, and whether such allotment be in the possession of the original owner or owners, or of his, her or their heir or assignee ; and such Record Book, or a Certified copy to be made and issued on demand without fee of any entry in such book, signed by the Surveyor-General, shall and may be taken in evidence of the boundaries of such allotments in any suit or cause affecting the same.
Governor to direct the Sur. veyor-General to subdivide the blocks into the proper number of Component allotments, having reference to existing fences of a durable nature ansl giving to each at least the full extent of boundaries granted by the Crown
Surveyor-General to cause the four Corners of each allotment to be marked in some visible Inanner
Boundaries So entered and signed to be (loemed the true boundaries, and tlle Record Book or a certifical copy to be evi(lence
Any alterntion of
Any house or
Valuators to be chosen at annual or special meeting
Divisional Boundaries in Towns
6. And be it enacted that if after such adjustment of boundaries as aforesaid it shall be found that any house or other substantial structure within the limits of any town site has been wholly or partially and undesignedly erected upon land not being the property of the owner of such house or structure, it shall not be lawful for the owner of such land to remove or disturb, or commence any proceedings at law or equity, save as hereinafter provided, on account of such house or other substantial structure, provided that the owner of such house or other substantial structure shall pay compensation for such land in manner hereinafter provided.
7. And be it enacted that at the annual meeting of the trustees of each town for the election of officers, or at any special meeting thereof, for the following purpose, called upon the requisition of any three or more of such trustees, of which notice shall be published in two successive “Gazettes,' there shall be chosen by ballot three of the said trustees to act as valuators of the property hereinafter mentioned in the said town until the next such annual meeting: Provided that no such valuators shall be chosen at any such meeting, annual or special, unless at least seven trustees be present thereat.
8. And be it enacted that if any person shall have undesignedly erected within the limits of any town site previously to an adjustment of boundaries therein under the provisions of this Act any house or other substantial structure either entirely or partly upon the land not his own property, it shall be lawful for such valuators as aforesaid, when called upon to do so by the owner of such house or structure, or the owner of the land upon which the same stands (taking all the circumstances of the case into their consideration), to estimate and award in writing the amount which shall be paid by the owner of such house or structure to the owner of such land as a compensation for the actual piece of land so occupied by such house or structure as aforesaid, and for such further intervening piece of land as may be necessary to give access to such house or structure.
9. And be it enacted that in case of any difference of opinion between such valuators as to the amount of compensation as aforesaid, the opinion of the majority shall be taken to be the award; and that it shall be lawful for such valuators, or the majority of them, to employ a surveyor in order to obtain a correct mensuration and description of the area and boundaries of any piece of land for which they shall be called upon to award compensation, and to allow and pay to such surveyor for such mensuration and description any sum not exceeding ten shillings and sixpence; and to demand and receive, over and above any sum paid or engaged to be paid to any such surveyor, for each and every award fairly written out (on parchment if furnished to them for that purpose), the sum of one guinea, to be equally divided between the valuators making and signing such award.
Opinion of the majority to be the award
Valuators may employ a surveyor
Award not to be given until the amount awarded
10. And be it enacted that it shall not be lawful for the said valuators to issue or deliver out any award by them made as aforesaid
Divisional Boundaries in Towns
until the amount of compensation thereby awarded shall have been paid to them or any one of them, to be by them paid over in manner hereinafter provided ; and that it shall not be incumbent upon them to make or enter upon any such valuation as aforesaid before the sum of one guinea, as and for their own fee, and the sum of ten shillings and sixpence, as and for a contingent surveyor's fee (to be repaid if not incurred), be first deposited in the hands of any one of them.
11. And be it enacted that any award to be made by any such valuators as aforesaid shall be in the form, or to the effect of the form, following, the words in parentheses being merely explanatory; that is to say, We, the undersigned, being the Valuators (or majority of the Valuators, as the case may be) for the town-site of y under the Act of Council 8 Victoria, No. 9, by virtue and in exercise of the powers vested in us by the said Act, do hereby award to (A.B.) of (residence, and rank or calling), the sum of , as compensation for a piece of land, being parcel of building allotment (letter and number in the Surveyor-General's maps) in the aforesaid town-site; and being now occupied or covered by (here describe generally and briefly the encroaching structure) of which (encroaching structure) (C.D.) of (residence, and rank or calling) was heretofore reputed owner ; and which said piece or parcel of land so occupied or covered as aforesaid is of the following superficial area, that is to say , and abuts on the side thereof on land of the said (C.D.); and on all other sides thereof, upon the aforesaid allotment (letter and number as above). (If the party in whom land is to be vested by the award choose to have a plan thereof, at his or her own additional expense, drawn upon the award, then add ‘according to the plan delineated on the margin (or at the foot) of these presents.") And we do hereby acknowledge to have received from the said (C.D.) the said sum of (amount of compensation). As witness our hands the day of 12. Provided always and be it enacted, that the powers of valuation and of awarding compensation given by this Act shall not extend to any cases of encroachment by the proprietor of one portion of an allotment (or piece or parcel of land granted by the Crown in one entire or separate lot) on any other portion of the same allotment.
13. And be it enacted that it shall be lawful for any such valuators as aforesaid when called upon to award compensation for any encroachment, to decide and determine whether the structure alleged to be such encroachment is a substantial structure within the provisions of this Act or otherwise: Provided that no fence other than a stone or brick wall shall be deemed such a substantial structure.
14. And be it enacted that it shall be lawful for any such valuators as aforesaid to consider and treat any encroachment submitted to them under this Act for valuation and compensation as undesigned, unless the owner or owners of the land thereby encroached upon shall give
has been paid and fees thereom
Form of the award
Act not to apply to sub-divisions of allotments made by private parties
Valuators to decide what is a substantial structure
Encronchments may be treated as undesigned unless in certain Cases
One month to be allowed for the removal of any temporary structure
Definition of the term “Owner'
Award may be made on the requisition of a part owner or of an agent
Appointment of a new valuator in case of a vacancy
Divisional Boundaries in Towns
notice in writing to such valuators before award made of his, her, or their intention to proceed at law for the recovery of such land, and that it shall be lawful for the person or persons giving such motice at any time within three calendar months after delivery of such notice to proceed by suit or action for the recovery of such land; but the plaintiff or plaintiffs in such action shall recover nothing therein unless he, she, or they shall prove to the satisfaction of the Court and Jury, or of the Court, when there shall be no Jury, that such land was knowingly and wilfully encroached upon ; and if the person or persons giving such notice shall fail to proceed according thereto within three calendar months after delivery thereof, or if such plaintiff or plaintiffs be nonsuited or discontinue such suit or action, or if verdict or judgment be for the defendant or defendants, and a certificate thereof under the hand of the Registrar-Clerk of the Civil Court (for which a fee of two shillings shall be demandable) be produced to the valuators of and for the town-site within which such land shall be situated, it shall be lawful for Šuch valuators to proceed to award compensation for the Sanne.
15. And be it enacted that when by any such adjustment of boundaries as aforesaid any fence or other erection, not being a substantial structure within the terms of this Act or the determination of any such valuators as aforesaid, shall be found to be an encroachment, the person or persons who previously to such adjustment was or were the reputed owner or owners thereof shall be allowed one calendar month from the discovery of such encroachment for removal of the same, and shall during that period have right of entry on the land thereby encroached upon for the removal of such fence or erection; and during such period the owner of the land so encroached upon shall not have any right of abatement or of otherwise intermeddling with such fence or erection.
16. And be it enacted that whenever throughout this Act reference is made to the owner of a structure, which by any adjustment of boundaries under this Act shall have been found to be an encroachment, the term ‘owner' shall be deemed and taken to mean and include the person or persons who, previously to such adjustment, claimed to be, and was or were reputed, the owner or owners of the land occupied by such encroachment, and his, her, or their heirs and assigns.
17. And be it enacted that it shall be lawful for such valuators as aforesaid to make such valuation and award such compensation as aforesaid on the requisition of any part owner of any encroaching structure, or land thereby encroached upon, or of the agent in this Colony of any absent owner or part owner thereof respectively; and that any part owner expending moneys in payment of compensation, fees or expenses under any such award as aforesaid in respect of such structure, may recover the same by contribution from the other part owner or part owners thereof in an action for so much money laid out and expended to and for the use of such other part owner or part owners.
18. And be it enacted that if any such valuator as aforesaid for any town-site shall die, or wish to resign his office, or become dis
Divisional Bowndaries in Towns
abled to act therein from mental or bodily infirmity, or shall cease to be qualified as a trustee of such town, or shall become pecuniarily interested in the subject matter of any award or required award, it shall be lawful for his co-valuators or co-valuator, or for any three others of the trustees of such town, to convene a special meeting of such trustees by requisition published in two successive “Gazettes,' and the trustees assembled at such meeting, being at least seven in number, shall elect another valuator or valuators in the place and stead of the valuator or valuators so dying, disabled, disqualified or interested as aforesaid.
19. And be it enacted that the award of such valuators as aforesaid may be concisely entered on the back of the title deed of either or both of the parties, if produced to them for that purpose, and that a memorial thereof shall be registered in the usual manner in the Registry Office of this Colony at the expense of the owner of such house or structure as aforesaid, and when so registered shall have the effect of a valid conveyance in fee simple by all necessary parties of such piece of land to the owner of such house or structure; and notwithstanding any incapacity or disability on the part of the owner or owners of such piece of land at the date of such award, but subject nevertheless to all settlements, incumbrances, estates or interests whatsoever to which the person or persons bond fide dealing with such land as his, her or their property previously to such award shall have professed to subject the same ; and subject also to all judgments, incumbrances and claims by operation of law, affecting at the date of such award the general property of the person or persons taking such land under such award.
20. And be it enacted that any compensation not exceeding twenty pounds which shall be awarded as hereinbefore mentioned for any land shall be paid by the valuators receiving the same to the person or persons who at the date of such award shall be beneficially entitled to the rents and profits of such land for his, her or their own use and benefit, or in case of infancy, idiocy or lunacy, or other incapacity, shall be paid to his, her or their guardian or guardians, Committee or committees, trustee or trustees, to and for the use and benefit of such persons respectively; or in case the person or persons $0 for the time being beneficially entitled shall be absent from this Colony, then such compensation shall or may be paid to any of his, her or their agent within this Colony holding any general authority in Writing to receive moneys on account of such absentee or absentees.
21. And be it enacted that when any compensation exceeding twenty pounds shall be awarded as aforesaid in respect of land under mortgage or strict settlement, or any other settlement, or belonging to a feme covert, infant, idiot, lunatic or to any person under any other disability or incapacity, or in case compensation to any amount below or above the said sum of twenty pounds shall be awarded as aforesaid in respect of land, the title of which shall be in dispute between several claimants, or of which the owner cannot be discovered, or shall refuse to receive such compensation, or shall be absent from this Colony without any known agent competent to give a receipt for such compensation, then and in any of the said cases it shall be lawful to pay the amount of such compensation into the hands of the Registrar
WOL. I. F
Award may be entered on the back of the title deed, and a memorial of it is to be registered