Higgins v Berry [1908] HCA 49

Higgins v Berry [1908] HCA 49

Although a freeholder is, by the terms of sec. 141 of the Crown Lands Act 1884, generally liable to contribute towards the cost of a fence when called upon by a qualified adjoining tenement, a settlement lessee is not entitled to claim such contribution, as settlement leases are not included within the category of holdings specified in sec. 141. Therefore, a freeholder is not liable to contribute towards the cost of a fence erected by a settlement lessee.

Parties
Appellant: Higgins; Respondent: Berry
Jurisdiction
Australia
Judgment Date
11 August 1908
Procedural Posture
Appeal / On Appeal From the Supreme Court of New South Wales
Outcome
Appeal allowed; question answered in the negative
Legal Topics
Crown Lands Acts, Statutory Construction, Dividing Fences, Right to Contribution for Fences
Property Law Statutory Interpretation Crown Lands Acts Statutory Construction Dividing Fences Right to Contribution for Fences

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Parties

Higgins

Appellant

Berry

Respondent

Procedural Posture

Appeal / On Appeal From the Supreme Court of New South Wales

Legal Issues

  1. 1 Is a freeholder liable under sec. 141 of the Crown Lands Act 1884 to contribute to fencing costs when adjoining land is held under a settlement lease?
  2. 2 Does a holder of a settlement lease have a right to claim contribution under sec. 141 of the Crown Lands Act 1884?

Ratio Decidendi

Although a freeholder is, by the terms of sec. 141 of the Crown Lands Act 1884, generally liable to contribute towards the cost of a fence when called upon by a qualified adjoining tenement, a settlement lessee is not entitled to claim such contribution, as settlement leases are not included within the category of holdings specified in sec. 141. Therefore, a freeholder is not liable to contribute towards the cost of a fence erected by a settlement lessee.

Court Disposition

Appeal allowed; question answered in the negative

Orders

  • Order appealed from discharged
  • Question answered in the negative