Fences and Impounding of Animals Act

CHAPTER 167

OF THE

REVISED STATUTES, 1989


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An Act Respecting Fences
and the Impounding of Animals

Short title

1 This Act may be cited as the Fences and Impounding of Animals Act. R.S., c. 167, s. 1.

INTERPRETATION

Interpretation

2 In this Act,

(a) "animals" means horses, asses, mules, cattle, sheep, goats and swine;

(b) "improved land" includes enclosed pasture lands. R.S., c. 167, s. 2.

FENCES

Construction of fence

3 All fences of enclosed lands shall be built of stones, pickets, boards, logs, poles, brush, posts and rails, or posts and wire, barbed or plain, unless the lands are bounded by unfordable ponds, rivers or the sea or surrounded by sufficient hedges. R.S., c. 167, s. 3.

Height of fence

4 Such fences shall be at least four feet and a half high, except stone walls and picket, board and wire fences, which shall be at least four feet high. R.S., c. 167, s. 4.

Water barrier

5 Only such rivers, creeks, bays, harbours and inlets of the sea shall be deemed lawful fences, as in the judgement of the fence viewers of the polling district where the lands lie are sufficiently deep and inaccessible to prevent the passing of animals. R.S., c. 167, s. 5.

Appeal

6 Every person, who feels aggrieved by the judgement of the fence viewers as to the lawfulness of the fence mentioned in Section 5 and desires the decision of the municipal council thereon, may apply to the council who shall inquire into the matter and, upon hearing the parties and their witnesses, may make an order which shall be binding on all fence viewers and others interested. R.S., c. 167, s. 6.

PARTITION FENCES

Fencing adjoining field

7 (1) The proprietor of a field adjoining another field, enclosed and improved, shall build and maintain his proportion of fencing on that part of such land which adjoins his own.

Construction by fence viewer

(2) If such proprietor neglects or refuses to build or maintain his proportion of such fencing, any fence viewer may cause such deficient fence to be built or repaired, as the case may be, after

(a) if such proprietor resides within the Province, three days notice in writing requiring him to build or repair the fence has been personally served upon him;

(b) if such proprietor does not reside within the Province and his address is known, twenty days from the mailing of such notice, postage prepaid, and registered to his address; or

(c) if such proprietor does not reside within the Province, and his address is not known, twenty days from the posting of such notice on the premises.

Recovery of cost

(3) Every proprietor who so refuses or neglects to build or maintain his proportion of such fencing shall pay double the expenses of making or repairing such fence to be recovered by the fence viewer, with costs, as a private debt, and such expenses and costs shall be a charge upon the field of such proprietor in priority to any encumbrance then existing thereon.

Settlement of dispute

(4) If adjoining proprietors differ as to the part or proportion of a partition fence to be made or repaired by each, the nearest fence viewer shall decide the same. R.S., c. 167, s. 7.

Duty of fence viewer

8 Every fence viewer, who neglects or refuses to build or repair any partition fence under the provisions of Section 7, shall be liable to a penalty of eight dollars, provided that, if the proprietor who neglects or refuses to do his share of the fencing is unable from insolvency to pay the expenses of building or repairing such fencing, it shall not be compulsory on the fence viewer to build or repair such partition fence until a sufficient bond is given to such fence viewer by the adjoining proprietor for the payment of such expenses in case the same cannot be collected from the proprietor neglecting to fence. R.S., c. 167, s. 8.

Remuneration of fence viewer

9 Fence viewers shall be paid for their services such amount as the municipal council shall fix by resolution from time to time, not however exceeding five dollars per day. R.S., c. 167, s. 9.

Sufficiency of fencing

10 Where the proprietor of land improved or cultivated has built his proportion of the fence separating his land from the improved or cultivated land of the adjoining proprietor of permanent or durable materials or growth, to be determined as in Section 11 provided, he shall not, nor shall any person claiming such land or any part thereof under him, be required to erect or repair the fence in any other place between his land or such part thereof and that of such adjoining proprietor, or any person claiming under him, in case of sale or change of occupancy of any part of such land, so long as such portion of fence of the kind in this Section mentioned is maintained by the proprietor who built the same, or some person claiming under him. R.S., c. 167, s. 10.

Evaluation of fence by justices

11 Any two justices of the peace, of the county in which the lands in Section 10 mentioned lie (due notice in writing for at least three days being first given to the proprietor of the adjoining land), may go upon the land, examine the fence and pronounce the same, by any instrument in writing under their hands, to be made of permanent or durable materials or growth within the meaning of this Act, and such instrument in writing shall thereupon be deposited with the clerk of the municipality as a memorial and as evidence of the matters therein stated. R.S., c. 167, s. 11.

Appeal

12 Every person who feels aggrieved by the decision of the justices may appeal to the county court for the county, and the decision of such court, affirming or reversing the decision of such justices, shall be final. R.S., c. 167, s. 12.

Title not affected

13 Nothing in Sections 10, 11 and 12 contained shall be construed to affect the title to the lands on which the fences are erected. R.S., c. 167, s. 13.

Fence not required

14 No owner or proprietor of wood or barren or burnt lands, not under improvement, shall be compelled to make any part of a fence against or on the same. R.S., c. 167, s. 14.

DAMAGES

Damage to product

15 If any damage is done by animals breaking into and destroying the product of any enclosure, the same being enclosed at the time by a sufficient fence in the judgement of the fence viewer, the owner of the animals trespassing shall pay to the person injured compensation for such damage. R.S., c. 167, s. 15.

Animal at large

16 In any municipality or portion of any municipality in which, by any by-law, order or regulation of such municipality, animals are not allowed to run at large on any public street, square or common or other public ground in such municipality or portion thereof, compensation for any damage caused or done by any animals straying from any such public street, square, common or other public ground, while running at large, into any field or on any other improved land, being private property, whether the same is enclosed by a fence or not, shall be paid by the owner of such animal so trespassing to the person injured. R.S., c. 167, s. 16.

Damage to enclosure fence

17 In every case where damage is done to the enclosed lands of any person by any animal breaking the fences enclosing the same, the owner of the animal shall be liable for the damage if the part of the fence broken by such animal was lawful, although other parts of the enclosing fence were not lawful. R.S., c. 167, s. 17.

Damage to partition fence

18 The owner of any animal breaking through a partition fence which such owner is bound to repair and keep up shall be liable for any damage done by such animal upon the land of any person enclosed or partly enclosed by such partition fence, although the same is not a lawful fence. R.S., c. 167, s. 18.

Appraisal of damage

19 The amount of the damages, to be paid under any of Sections 15, 16, 17 or 18, shall be appraised by three disinterested freeholders living in the neighbourhood, one of whom shall be chosen by each of the parties and the third by the two so chosen, who shall be sworn before a justice to truly appraise the same. R.S., c. 167, s. 19.

Action for damage

20 If the owner refuses to pay the amount appraised upon notice thereof, the person injured may maintain an action therefor as for a private debt. R.S., c. 167, s. 20.

IMPOUNDING ANIMALS

Right to impound

21 If the damage is done by animals breaking into and destroying the product of any enclosures, the persons whose fences have been broken and enclosures damaged may impound the animals so trespassing until the owner claims the same and tenders sufficient amends. R.S., c. 167, s. 21.

Notice

22 The pound keeper shall, as soon as may be after such cattle are impounded, advertise the same in three of the most public places in the settlement where the trespass was committed, in order that the person injured may proceed against the owner of such animals refusing to pay the damages done thereby. R.S., c. 167, s. 22.

Recovery of impounding fee

23 (1) The owner of any such animal shall pay to the pound keeper, above the damages adjudged under the provisions of this Act in respect to the appraisement of damages, twenty cents for every horse, ass or mule or head of cattle and ten cents for every sheep, goat or swine, for each day the same has been impounded for its support and, in case of neglect or refusal to pay the same within eight days after being impounded, with the charge of advertising, and such animals shall be publicly sold and the proceeds, after deducting the pound keepers charge for supporting them, and the damages, shall be paid to the owner if he claims the same within thirty days, if not, then to the treasurer of the municipality.

By-law respecting impounding fee

(2) In any municipality where there is in force a by-law of the municipal council fixing the fees of pound keepers, the scale of fees so fixed by such by-law shall apply in such municipality and in such cases the fees set out in this Section, in so far as they are in conflict with such by-law, shall not apply. R.S., c. 167, s. 23.

Animal at large

24 In any municipality, or portion of any municipality, where, by any by-law, order or regulation of the municipality, animals are not allowed to run at large on any public street, square or common, or other public ground in such municipality or portion thereof, it shall be lawful for any freeholder, or any person acting under his authority, to drive or take any such animal so found running at large in any such public street, square or common or other public ground or found trespassing in any field or on any other improved land being private property, having strayed into the same from such public street, square, common or other public ground while so running at large, whether the same is enclosed by a fence or not, and the animal so found to impound in any public pound in the municipality or portion thereof, and the proceedings prescribed in Sections 22 and 23 shall be taken in respect to such animals. R.S., c. 167, s. 24.

Damages for trespass by animal

25 All the provisions of this Act, as to the recovery of damages for animals trespassing and the charges of pound keepers, shall apply to the appraisement and recovery of damages for trespasses committed by any such animals straying as in Section 24 mentioned, and for the recovery of the pound keepers charges on the impounding and keeping of the same. R.S., c. 167, s. 25.

OFFENCES AND PENALTIES

Damaging

26 Every person, who destroys or injures any railing, stone wall or fence of any kind placed on the side of any public square, bridge or causeway, shall be liable to a penalty for each offence of not less than one dollar nor more than eight dollars, in addition to any private damage sustained. R.S., c. 167, s. 26.

Interference with impoundment

27 (1) Every person who rescues any animals from the person driving them to the pound shall be liable to a penalty of four dollars, above all damages caused by such animals.

Releasing impounded animal

(2) Every person who breaks any pound, or by indirect means delivers any animals therefrom, shall be liable to a penalty not exceeding four dollars, and in default of payment to imprisonment for a period not exceeding twenty days. R.S., c. 167, s. 27.

MISCELLANEOUS

Common law preserved

28 Nothing in this Act contained shall be construed to impair the right of action under the common law for damages occasioned by animals breaking into lands. R.S., c. 167, s. 28.

Cattle at large permitted

29 Notwithstanding anything contained in this Act or any by-law adopted by the Municipality of the County of Halifax, if a majority of the ratepayers of any district of the Municipality shall petition the council praying that it be declared that in such district, or in such portion thereof as is described in such petition, it is permissible for cattle to run at large and if the council in compliance with the prayer of such petition shall by resolution so declare, then thereafter no action shall be maintainable against the owners of cattle for damage caused by their cattle running at large in such district or portion thereof described in such petition, unless the land on which such cattle commit damage is enclosed by such a fence as is described in Sections 3 and 4 of this Act. R.S., c. 167, s. 29.

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