Higgins v Berry [1908] HCA 49

618 HIGH COURT [1908.

(HIGH COURT OF AUSTRALIA.]

HIGGINS . . . bs fe a . APPELLANT; AND

BERRY 4 5 ; : : 4 ' . RESPONDENT.

ON APPEAL FROM THE SUPREME COURT OF NEW SOUTH WALES.

H.C. or A, Urown Lands Act 1884 (N.S.W.), (48 Vict. No. 18), sec. 141—Crown Lands Act

1908. 1895 (V.S.1.), (58 Vict, No. 18), secs. 24, 25—Rights of holders of adjoining —— land—Fence erected on common boundary—Contribution towards cost—Liability Sypsry, of freeholder—Right of settlement lessee to contribution—Construction of Statutes, cr hee ne A holder of land in freehold is liable to contribute towards the cost of a

ence erected on his boundary by a person entitled under sec, 141 of the Crown Lands Act 1884 to call upon an adjoining holder for contribution.

O'Connor, Isaacs and

Higgins JJ. So held, per Griffith C..

But held (per totam curiam), that the holder of a settlement lease under _ secs, 24 and 25 of the Crown Lands Act 1895 is not entitled to claim contribu- tion under the section.

, O'Connor and Isaacs JJ.

Per Higgins J.—Sec. 141 has no application as against or in favour of owners in fee simple under old titles, but is restricted to purchasers and others who are still in contractual relations with the Crown under the Crown Lands Acts.

Decision of the Supreme Court : Zn re Berry, (1907) 7 S.R. (N.S.W.), 768, affirmed on the first point, and reversed on the second.

AppEAL from a decision of the Supreme Court of New South Wales upon a case stated by the Land Appeal Court under see. 8, sub-see. vi. of the Crown Lands Act 1889.

The appellant became the holder in freehold of certain land in New South Wales. Subsequently to the purchase the respon-

6 C.L.R.] OF AUSTRALIA.

dent became the holder of a settlement lease of land adjoining H- ©. oF 4.

that of the appellant, and having a common boundary on one side. The respondent erected a fence on the common boun- dary and served the appellant with a claim for half the cost of the fence. The appellant refused to pay, and the respondent brought the matter before the Local Land Board, who decided in his favour, holding that the appellant was liable under sec. 141 of the Crown Lands Act 1884 to contribute half the cost of the fence, assessing the amount payable at £55. The appellant appealed to the Land Appeal Court against this decision upon the ground that a freeholder was not liable under sec. 141 to contribute towards the cost of boundary fencing. The Land Appeal Court sustained the appeal, and at the request of the respondent stated a case for the decision of the Supreme Court on the question " whether the holder of land in freehold is liable under the provisions of the Crown Lands Acts to contribute towards the cost of a fence erected by the holder of a settlement lease on the common boundary of the land held in freehold and that held under settlement lease."