Limitation of prosecutions

Recovery and appropriation of penalties

Appeal

Act may be amended

Alignment of Streets in Towns

or after the time limited for bringing the same as aforesaid, then the
Court or Jury shall find for the defendant or defendants; and upon
such verdict or finding, or if the plaintiff or plaintiffs shall be nonsuited,
or shall discontinue his, her, or their action, suit, or prosecution, after
the defendant or defendants shall have appeared, or if upon demurrer
judgment shall be given against the plaintiff or plaintiffs, defendant or
defendants shall recover double costs, and have such remedy for the
same as any defendant or defendants hath or have in other cases of
costs given by law, and though a verdict shall be given for the plaintiff
in any such action, such plaintiff shall not have costs against the
defendant unless the Judge before whom the trial shall be shall certify
his approbation of the action and of the verdict obtained thereon.
14. And be it enacted that all prosecutions for the recovery
of any
of the forfeitures and penalties imposed by this Act must be commenced
within one calendar month after the offence committed for which such
penalty or forfeiture shall be incurred.

15. And be it enacted that all informations and proceedings in respect of any offences under this Act shall be heard and determined and the forfeitures and penalties in respect of the same shall be awarded and imposed in a summary way by or before two or more Justices of the Peace, according to the provisions of an Act of Council passed in the seventh year of the reign of Her present Majesty, intituled An Act to regulate Summary Proceedings before Justices of the Peace;' and that any fines, forfeitures, or penalties recovered under this Act shall be appropriated to the use of the Trust of that town within which the offence was committed.

16. And be it enacted that if any person shall think himself aggrieved by any judgment or conviction made under this Act, such person may appeal therefrom to the next Court of Quarter Sessions.

17. And be it enacted that this Act may be amended or repealed by any Act to be passed during this present session.

JOHN HUTT.

GOVERNOR.

Preamble

WESTERN AUSTRALIA

ANNO OCTAVO

VICTORIÆ REGINÆ

No. 9

An Act for the adjustment of Divisional Boundaries of Allotments in Towns, and to prevent Litigation from undesigned encroachments on adjoining Allotments.

WHE

[Assented to 22nd August, 1844.

THEREAS surveys of the several towns in the Colony of Western Australia are about to be made for the purpose of a proper alignment of the streets of such towns respectively, and whereas it is

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.

2. And be it enacted that the said Surveyor-General, in order to determine the due lines and positions of divisional boundaries, shall cause to be marked out upon each allotment in some convenient and visible manner the several terminal or angular points of such allotment, and that for such purpose it shall be lawful for him or any person or persons by his directions to enter upon any allotment and to erect or construct any mark that may be deemed necessary, and to place, cut or brand any such mark on any fence existing thereon.

3. And be it enacted that whensoever and so soon as the several boundaries shall have been ascertained and finally marked as aforesaid, the Surveyor-General shall cause the same to be accurately delineated and expressed in figures on the maps or plans which he is directed to lay before the Governor in Executive Council in and by an Act passed in the present year of Her Majesty's reign, intituled An Act to provide for the Alignment of Streets in the several towns of the Colony of Western Australia,' and shall enter a description of each allotment so marked in a Record Book to be kept by him for that purpose, and every such description shall be signed by him and countersigned by the Governor in Executive Council, and notice of every such entry shall be published in three successive Gazettes.'

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.

5. [Repealed by 48 Vic., No. 13.]

Divisional Boundaries in Towns

the altered

boundaries is to be inserted in

the margin of

the enrolled deed

of grant

Any house or substantial structure found

to encroach upon

another person's

land is not to be

disturbed, nor any legal proceedings taken on account of it, provided the owner of such house, &c., pay within twelve months a sum awarded

Valuators to be

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 chosen at annual each town for the election of officers, or at any special meeting thereof, or special meeting 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.

The valuators

are to award the amount to be paid by the

owner of the

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 house, &c., to the 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 land occupied by the owner of the land upon which the same stands (taking all the

owner of the land

as a compensa

tion for the actual piece of

the house, &c.

Opinion of the majority to be the award

Valuators may employ a surveyor

Award not to be given until the

amount awarded

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.

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

fees thereon

until the amount of compensation thereby awarded shall have been has been paid and 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.

award

11. And be it enacted that any award to be made by any such Form of the 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
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.

may be treated unless in certain

as undesigned

14. And be it enacted that it shall be lawful for any such valuators Encroachments 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

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 notice 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 such valuators to proceed to award compensation for the

same.

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