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BOUNDARIES ACT 1721
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CHAP. V.
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An Act to oblige proprietors and tenants of neighbouring lands to make fences between their several lands and holdings.
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5 G. 2. 9.
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Proprietor or tenant of lands desiring to make fences between his and those adjoining, where no dispute about mears for 3 years, proprietor or tenant thereof shall be at equal expence.
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Ditches six feet wide, and five deep,
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with quicksets, or furze.
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or a dry stone, or mud-wall. not under five feet high, two and a half at bottom, one and at half at top,
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or trenches, the banks planted with aquaticks.
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On refusal, compellable by bill or commission of perambulation to ascertain the bounds,
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expence of making and preserving fences, equal;
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Proprietor refusing one whole year shall pay half of what is reasonably and bona fide expended,
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with interest,
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by debt; or if under 10 l. by civil bill,
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treble costs,
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WHEREAS it is found by experience, that many trespasses happen, and frequent disputes arise, between proprietors of lands about mears and bounds of lands; which is in a great measure occasioned by the proprietors and tenants neglecting to make fences between their several lands and holdings, which heretofore could not be done at equal expence, without the mutual content and concurrence of the respective proprietors or tenants of such contiguous lands: be it therefore enacted by the King’s most excellent Majesty, by and with the advice and consent of the lords spiritual and temporal and commons in this present Parliament assembled, and by the authority of the same, That from and after the first day of February in the year of our Lord one thousand seven hundred and twenty one, if any proprietor, occupier, or tenant of any lands in this kingdom, shall be desirous to make ditches or fences between his, her, or their lands and holdings and the lands next contiguous and immediately adjoyning thereto, where no dispute then shall be, or shall have been, for three years then last past about the mears between the said lands or holdings so intended to be fenced, and where no sufficient fences, or only dead and dry fenceless ditches, then shall be, that the proprietor or proprietors, occupier or occupiers, or tenant or tenants of such neighbouring lands, on reasonable request to him, her, or them made, shall be, and is hereby obliged to be at equal expence in making between such several lands and holdings good and sufficient ditches of six foot wide and five foot deep at least, where the same is practicable, well and sufficiently quicked in good husbandlike manner with white thorn, crab, or other quicksets, where the same will grow, and, in ground where such quicksets will not grow, with furz, and where furz will not grow, or where ditches cannot be made of the said depth and wideness, instead of a ditch with a dry stone wall, where stone can be conveniently had, and, where stone cannot conveniently be had, with a clay or mud wall not under five foot high and two foot and a half thick at the bottom, and one foot and a half thick at the top, and in wet low ground with sufficient trenches or drains, the banks thereof to be planted with sallows, alder, or other aquatick trees, where such aquaticks will grow; and if any proprietor, occupier, or tenant of any neighbouring lands, shall refuse to settle and ascertain the mears and bounds between his, her, or their lands and holdings and the lands and holdings of such person or persons requiring the same, in order to have fences made as aforesaid, then and in that case such proprietor, occupier, or tenant of such lands so refusing, shall be compellable by bill in equity, or commission of perambulation, to six, adjust, settle, and ascertain the mears and bounds between his or her lands and holdings and the lands and holdings of the person or persons requiring such fence to be made; and such neighbouring proprietors, occupiers, or tenants, shall join and be at equal expence in making and preserving, scouring and repairing such ditches, trenches, drains, or fences as aforesaid, with such proprietor, occupier, or tenant of the neighbouring lands requiring the same; and if such neighbouring proprietor, occupier, or tenant refuse, or for the space of one whole year neglect, so to do, then and in such case it shall and may be lawful for the proprietor, occupier, or tenant of such neighbouring lands requiring the same, to make the said ditches, wall, trench, drain, or other fence as aforesaid, and the tenant or tenants, occupier, or occupiers of such neighbouring lands, who shall refuse or neglect to make such ditches, drains, or fences as aforesaid, shall be answerable for, and shall pay to, the person or persons, who shall make or cause the same to be made, one full moiety of what he, she, or they shall reasonably, bona fide, and without fraud or malice, lay out in making such ditches, walls, drains, trenches, or fences, and in planting such quicksets, and weeding them, and securing the same as aforesaid, together with legal interest for such moiety of such sum so laid out as aforesaid; to be recovered by action of debt in any of his Majesty’s courts of record in Ireland; or, if the sum expended be under ten pounds, then by civil, bill before the justices of assize and general goal delivery for the county or liberty, where such fences shall be made as aforesaid, and in the county of Dublin before the justices of the peace at their general quarter sessions of the pence to be held in and for the said county, with treble costs.
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not above 1 s. and 6 d. per perch for such wall, or 1 s. for a ditch, &c.
If fences not preserved, no remedy for involuntary trespass.
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II. Provided always, That there shall not be demanded above one shilling and six pence per perch of such stone or other wall of the height and thickness aforesaid, or above one shilling per perch for such ditch, trench, drain, or other fence made and planted as aforesaid, by the person or persons, who shall make or cause the same to be made; and if it shall happen, that after such ditches and fences are made as aforesaid; the person or persons, whose lands the same lie on, and who ought to keep up the same, do not weed such quickset, and mend, preserve, and keep up such fences, or his part thereof; as they ought to do, that then and in that case the person or persons so neglecting or refusing to weed such quicksets, and to mend, preserve and keep up his part of the said fence, shall have no remedy for any involuntary trespass committed by the cattle of the proprietor, occupier, or tenant of any the neighbouring lands, for any trespass on his, her, or their lands, or occasioned by his, her, or their default in mending, preserving, or keeping up his, her, or their part of such fence or fences as aforesaid.
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Tenant, not having estate for life or 11 years at the time of request, shall deduct out of his rent the said expence, first proving it on oath at sessions.
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III. And whereas the tenant or occupier of such lands, who shall be obliged by this act to ditch and fence as aforesaid, or pay for the same, may be only tenant at will or sufferance, or have a very short term in the said lands, so held by him or her: be it further enacted by the authority aforesaid, That every person or persons compellable by this act to ditch and fence as aforesaid, or to pay for the same, who shall not have an estate for life or eleven years in his, her, or their lands, to be fenced and ditched between as aforesaid, at the time the proprietor or tenant of the neighbouring lands shall request him or her to ditch or fence as aforesaid, that then and in such case such tenant shall be and is hereby impowered to deduct out of the rent due to his, her, or their landlord or lessor what he, she, or they shall so lay out, expend or pay, and such landlord or lessor shall and is hereby required to allow the same; such tenant or tenants first proving on oath before the justices of the peace of the county, where such lands lie, at their general quarter-sessions (which oath such justices are hereby impowered to administer) what he, she, or they so laid out, expended, or paid.
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Tenant not obliged to fence, above one fifth yearly.
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IV. Provided always, That no tenant of farmer for life or years shall be obliged to ditch or fence above one fifth part of his, her, or their lands, or holdings in any one year.
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Where mears crooked,
Boundaries may, with consent of tenant and immediate owner in reversion in writing, &c. be made streight and in more convenient places,
and the lands exchanged on each side,
reversioner must be seised at least for life, remainder in tail to his sons.
Where the lands unequal in value, there may be a perpetual rent-charge on the greater proportion, to go as the land ought.
Exchanged lands, to same uses.
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V. And whereas the bounds and mears between lands do often run in crooked lines, and sometimes through places inconvenient for making of such ditches or fences as aforesaid, and it would be most convenient for the occupiers and proprietors of such neighbouring lands to make the fence between them in a streight line, and to exchange the lands left out on one side of such streight line for the lands of equal value, worth, and purchase, took in on the other side thereof; which may happen to be impraticable for want of a sufficient estate in the proprietors of such neighbouring lands, or one of them, to make such exchange: be it therefore enacted by the authority aforesaid, That in such cases the persons, whose lands are so contiguous and to be bounded by a fence between them as aforesaid, may, and they are hereby impowered and enabled, by consent of the tenant or tenants of such lands, and the immediate owner and proprietor thereof in reversion expectant on the lease then in being, appearing by writing under hand and seal attested by three credible witnesses at least, to make the boundaries in streight lines in more convenient places, and to exchange the lands on one side of such streight line or fence for the lands of equal value, worth, and purchase on the other side of such right lines; so as such reversioner be seized of the lands, which he shall so grant in exchange, at the least for term of his own life, with remainder limitted over to the sons of his body begotten in tail male; and if it shall happen that the lands, left on one side of such streight line or fence, shall be of a greater value, worth, and purchase, than the lands took in on the other side thereof, then and in such case the proprietor, to whom the greater proportion shall fall, shall be enabled to charge the same with a perpetual rent-charge sufficient to countervail such difference or disproportion; which rent-charge shall go to such person and persons, and for such estate and estates, and to and for the same uses, as the land so charged ought to have gone; and the lands received in exchange shall go to such person and persons, and for such estate and estates, and to and for the same uses, as the lands given in exchange ought to have gone, in case no such exchange had been made.
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House, garden, &c. not included.
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VI. Provided always, That no house, garden, orchard, wood, or grove, be included in such lands, so to be exchanged as aforesaid,
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Exchange binding, notwithstanding any limitation,
if not above two acres every 100 perch, at 21 feet each.
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VII. And be it also enacted by the authority aforesaid, That all such exchanges or agreements shall be binding to all persons, any devise, settlement, or limitation of use to the contrary notwithstand: provided the lands so exchanged to the intent aforesaid do not exceed the quantity of two acres plantation measure in every one hundred perches of such line or fence; each perch in this act mentioned containing twenty one foot and no more.
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The person fencing, on refusal of the other, shall ascertain on equal proportion to he preserved by the other.
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VIII. And be it further enacted by the authority aforesaid, That in case any person shall refuse to fence or plant according to the true intent and meaning of this act, so as in default of so doing the proprietor, possessor, or tenant of the adjoining land shall fence and ditch between his land or holding and the neighbouring lands or holdings, the person or persons so ditching or fencing as aforesaid shall and may ascertain and set out an equal proportion of such fence, which the tenant or tenants, or occupier or occupiers, of the adjoining lands shall be obliged from time to time to keep in good order and repair as his part of the said fence, and to weed and preserve the quicksets, if any planted thereon.
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Not to avoid contracts between landlord and tenant.
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IX. Provided always, That nothing herein contained shall extend to avoid any covenants or contracts made between landlord or tenant for fencing, ditching, draining, and inclosing lands.
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Tenant on allowance by landlord for fence shall give bond for preserving;
or not have benefit of allowance.
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X. Provided likewise, and be it further enacted, That where the landlord or landlords are obliged to allow his, her, or their tenant or tenants for ditching or fencing between their holdings and their neighbours as aforesaid, such tenant and tenants respectively, to whom such allowance shall be made, shall at the time of making such allowance give security by his or their own bonds of the penalty of the whole sum so allowed to such landlord and landlords, conditioned for the due and effectual weeding of such quicksets planted, and the preserving and keeping up the said ditches and fences, for which they shall be so allowed during their respective terms in the said lands, in good tenantable order and condition; and, in case of refusal to give such bond as aforesaid, such tenant so refusing shall not have the benefit of such allowance, any thing herein contained to the contrary notwithstanding.
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None obliged to fence, where plantation acre pays nor to landlord 2 s. per annum, above quit or crownrent.
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XI. Provided always, That nothing in this act contained shall extend to oblige any proprietor, occupier, or tenant, of any lands to fence or ditch between any lands, whereof the plantation acre shall not at the time, when request shall be made for the doing thereof, be worth, and which shall not really pay the landlord, two shillings per annum, over and above quit or crown rent.
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Lessor not obliged to allow more than 20th. part of annual rent, nor tenant to expend more, in one year.
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XII. Provided also, That no proprietor or lessor of such lands shall be obliged to pay or allow in any one year for ditching or fencing as aforesaid in pursuance of this act more than the twentieth part of the annual rent, payable out of such land to such proprietor or lessor; and that the tenant or tenants of such proprietor or lessor shall not be obliged to expend more in any one year in making such fences, than the twentieth part of his or their rent payable to such proprietor or lessor.
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None obliged to fence any inclosure not containing to acres, a ditch above six feet wide, and five deep.
usual passages left open.
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XIII. Provided always, That no proprietor, tenant, or occupier of land, shall by virtue of this act be obliged to fence in or enclose any parcel of land or ground in any one park or inclosure, which shall not contain at least ten acres plantation measure, with a ditch or fence of above six foot wide, and five foot deep; and that the most usual ways and passages to and from intermixed lands, surrounded by other proprietors, be left open and passable as formely; any thing herein contained to the contrary notwithstanding.
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No mears so made conclusive, unless agreement in writing, &c. or suffered to stand five years after determination of lease in being, or after disability removed.
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XIV. Provided always, That no mears between lands belonging to several proprietors, inclosed or ditched by virtue of this act, shall be binding or conclusive, so as finally to settle the mears and bounds between such lands, unless the proprietors of the said lands do agree to the same in writing under his, her, or their hand and seal, attested by three or more credible witnesses, before or after the time of such ditching, fencing, or bounding, or shall suffer the said mears so ditched and inclosed to stand for the space of five years after the determination of such lease or leases of the said lands, as are or shall be then in being; and in case of infancy, coverture, being beyond sea, or of insane memory, or where a remainder shall be claimed by any settlement or will, five years after attaining the age of one and twenty years, becoming discovert, returning from beyond sea, or becoming of sane memory, or from and after such remainder shall take place.
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