No. 479. 37 VICTORIA, Contribute to the construction of a fence and may then proceed ex parte to obtain from two justices or an arbitrator appointed by them an order or award (as hereinbefore provided in the case of persons not agreeing as to the construction or kind of fence) authorizing the construction of such fence and specifying the kind of fence to be constructed and the position thereof, and may construct a fence in compliance with such order or award; and if afterwards during the continuance of such fence any person go into occupation of such adjoining land may within one month thereafter serve any person who if such fence were not in existence would be liable to contribute to the construction of a fence in the place thereof with a copy of such order or award, and shall after the expiration of one month from the date of such service be entitled to recover one half the then value of such fence; but if such order so made ex parte be inequitable any two justices on the complaint of any person interested in disputing the same made within one month after service of such order or award may relieve the complainant from the whole or any portion of the sum claimed as the value of such fence, and may order that the line of such fence be altered on such terms as may be just. Apportionment of the cost of fencing as be 11. Where any fence is constructed under the provisions of this Act dividing any lands held by any person as tenant of any landlord tween landlord from any adjoining lands the cost thereof as between such landlord and tenant shall be payable in the proportions following, i.e. :— and tenant. In case the interest of such tenant at the time of the construction of such fence be less than for a term of three years the whole cost shall be payable by such landlord: In case the interest of such tenant be for a term of three years and less than for a term of six years, three-fourths of such cost shall be payable by such landlord and onefourth of such cost by such tenant: In case the interest of such tenant be for a term of six years and less than for a term of twelve years, one-half of such cost shall be payable by such landlord and one-half by such tenant: In case the interest of such tenant be for a term of twelve years or upwards, the whole of such cost shall be payable by such tenant: And in case either such landlord or such tenant shall under the provisions of this Act pay more than his proper proportion of such cost he may recover the excess from his landlord or tenant, as the case may be, and any tenant may set off any sum recoverable by him under this section against any rent payable to his landlord: Provided that the whole of the cost of the erection of any fence heretofore made shall be borne by the landlord unless there be some contract between the landlord and tenant to the contrary. 12. Any tenant having a right to purchase any land occupied by him at a fixed rate shall on the completion of the purchase pay to his landlord in augmentation and as part of the purchase money any sum paid by such landlord under the last preceding section together with interest for the same after the rate of eight pounds per centum per annum. upon a road to fence. 13. If the occupier of any land bounded by a road which road 37 VICTORIA, is within any municipality desire to plant a live fence on the com- No. 479. mon boundary of his land and such road and for that purpose to Power to conconstruct a fence upon such road until such live fence shall have struct a fence grown up and give notice in writing of his desire to the council of protect a live such municipality describing the proposed fence and its proposed position, and be not within one month after the service of such notice served with an order of justices made as hereinafter provided not to proceed with the construction of such fence, such occupier may at any time not more than six months after the service by him of such notice proceed to construct a fence on such road as proposed in such notice so that no part of such fence be more than six feet distant from the nearest point on the boundary of his land and that the width of such road available for traffic after the construction of such fence be in no place where the same is reduced by the construction of such fence less than thirty feet; and if such occupier forthwith after the construction of such fence proceed to plant a live fence on the boundary of his land and such road, such occupier constantly with all proper diligence keeping maintaining and protecting from injury such live fence may, for such time not exceeding four years or such longer time as the council of such municipality may in writing allow as may elapse before such live fence become a sufficient fence within the meaning of this Act, maintain on such road the fence so constructed. struction of a 14. Any two or more justices, within one month after the Power to justices service of any notice on the council of any municipality within the to forbid the conlast preceding section on the complaint of and good and sufficient fence on a road. cause shown by such municipality, may order the person serving such notice not to proceed with the construction of the fence referred to in such notice. PART III.-MAINTENANCE AND REPAIRS OF FENCES. dividing fences 15. When any dividing fence made or to be made shall be adjoining occuout of repair or become insufficient the occupiers of land on either piera to keep side thereof shall be liable to the cost of repairing such fence in in repair. equal proportions. compel contribu fences. 16. The occupier of any land separated from any adjoining Procedure to land by a dividing fence may serve a notice upon the occupier of tion to the repair such adjoining land requiring him to assist in repairing such fence of dividing and if such occupier shall refuse or neglect 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 of and from such other occupier half the cost of repairing the same: Provided that if any dividing fence or any portion thereof shall be destroyed by accident the occupier of land on either side may immediately repair the same without any notice and shall be entitled to recover half the expense of so doing from the occupier of the adjoining land: Provided always that in case such dividing fence shall have been destroyed by fire or by the falling of any tree or trees the occupier through whose neglect (if any) such fire shall have originated or have caused injury to the 37 VICTORIA, fence or such tree or trees shall have fallen shall be the party bound to repair the entire of the fence so damaged as aforesaid. No. 479. From whom moneys recoverable under this Act may be recovered. Jurisdiction of justices. Complaints under this Act. Act not to inter ments. PART IV. PROCEEDINGS FOR THE RECOVERY OF CONTRIBUTIONS. 17. All moneys recoverable under this Act in respect of the construction or repairing of any fence by any person serving any notice to fence or repair or any ex parte order or award may be recovered from any person liable to contribute to the cost of constructing or repairing such fence who is served with notice to fence or repair or such ex parte order or award, or any person who may come in and defend under the provisions of this Act any proceedings consequent on such notice or the service of such order or award: And all such moneys recoverable by any person served with such notice may be recovered from the person serving the same or any person liable to contribute to the construction or repair of such fence as tenant of whom the person serving such notice may hold the lands bounded by such fence. 18. All proceedings for orders and for the recovery of sums of money shall be in a summary manner before any two or more justices. 19. Every complaint by this Act directed to be heard before justices shall be heard in a summary way at some court of petty sessions sitting near to the locality of the fence to which the same shall relate, and the costs of every such complaint shall be in the discretion of the justices hearing the same, but notwithstanding when any such justices shall appoint an arbitrator such justices may if they think fit refer the costs of the reference to the award of such arbitrator. PART V.-GENERAL PROVISIONS. 20. Nothing in this Act contained shall be deemed or taken to fere with agree- affect any covenant contract or agreement made or hereafter to be made relative to fencing between landlord and tenant or between occupiers of adjoining land. Act not to apply to unalienated Crown lands. Persons con structing fences can enter upon 21. This Act shall not apply to any unalienated Crown lands; nor shall the Crown the Governor the Board of Land and Works nor any public officer appointed by the Governor or by the Governor in Council for the administration management or control of the Crown Lands or Public Works or who may by virtue of his office however styled have any such management or control be liable under the authority of this Act to make any contribution towards the construction or repairing of any dividing fence between the land of any occupier and any Crown land. 22. Every person engaged in constructing or repairing a fence under this Act, his agents and servants may with or without horses contiguous lands. cattle carts or carriages at all reasonable times during such construction or repairing enter upon the contiguous lands and do thereon such acts matters and things as are necessary or reasonably required to carry into effect the construction or repairing of such fence. Power of land 23. Any person may come in and defend any proceeding under lord to come in this Act against any tenant of such person in consequence of which and defend pro No. 479. such person may ultimately incur any liability, and any defence 37 VICTORIA, which the person originally proceeded against might set up shall be available to the person so coming in to defend. ceeding against his tenant under this Act. 24. Nothing herein contained shall be deemed to affect any tect subsubstantial fence already erected. No to affect stantial fence already erected. 25. This Act shall continue in force for three years from the Duration of Act. commencement thereof and thence until the next session of Parliament and no longer. repl2 52252 37 VICTORIA, Title. Acts repealed. An Act to amend the Law relating to Fisheries. E it enacted by the Queen's Most Excellent Majesty by and with the advice and consent of the Legislative Council and the Legislative Assembly of Victoria in this present Parliament assembled and by the authority of the same as follows (that is to say) : 1. This Act may be cited as the "Fisheries Act 1873." 2. The several Acts mentioned in the First Schedule hereto First Schedule. shall be and the same are hereby repealed except as to fish already introduced into any lake river or other water in Victoria by transportation from other water to the extent mentioned in such Schedule: Provided that nothing herein shall affect any permission to form and plant any artificial oyster bed proclamation act or thing lawfully made or done under the authority of the said Acts or either of them; and all offences committed and penalties incurred under the said Acts or either of them shall be prosecuted and enforced respectively as if this Act had not been passed. Interpretation "Take." "Fixed engine." "Waters." "Boat." "Use." "Oyster brood." Apprehension of Offenders may be 3. The following words and expressions in this Act shall have the several meanings hereby assigned to them unless there be something in the subject or context repugnant to or inconsistent with such construction : (1.) The word "take" shall mean and include "catch" or "dredge for" or "raise." (11.) The expression "fixed engine" shall include any weir (III.) The word "waters" shall include salt and fresh waters (v.) The word "use" shall include "attempt to use" or (VI.) The expression "oyster brood" shall include "spat" "cultch " or "any small oysters less in circumference than five inches." 4. The Inspector of Fisheries and every assistant to such inspector or any constable with or without warrant may seize any net or nets which any person found offending against any of the provisions of this Act may be using, and may also with or without warrant apprehend any person whose name and address are unknown to him and who is found offending against any of the provisions of this Act. 5. If the inspector or person in charge of the watch-house lock-up or police station in which such person is detained see fit so to do he may liberate such person on his making deposit of Ten pounds or on his own recognizance in the like sum conditioned to appear before some justice, and such deposit if such person shall |