Judge: "Shared water does not necessarily make good neighbours ..."

Justice DiTomaso's remark seems pretty obvious - shared boundaries and shared resources are quite often the subject matter of litigation.  In this case, the Plaintiff organic farmer purchased a farm from a retired dental surgeon in 1998.  In 2007, she learned from a neighbour not only that the neighbour's water was contaminated with e-coli bacteria, but also that the neighbour's water was sourced from the Plaintiff's farm.  The judge noted: "This was surprising and disturbing news to her."

 

As a result of the discovery, the Plaintiff sued the retired surgeon for fraudulent or negligent misrepresentation.  She also sought a declaration against her neighbour that the neighbour has no prescriptive easement to use the waterline that originates on the Plaintiff's property and services the neighbour's property.  The neighbour counterclaimed for a declaration that she does have a prescriptive easement and for an injunction preventing the Plaintiff from doing anything that would interfere with the quantity or quality of the water running through the (alleged) easement.

 

At trial, a number of factual findings were made, including:

• neither the dental surgeon nor anyone on his behalf disclosed the shared waterline to the Plaintiff at any time prior to the purchase of the farm in 1998
• another farmer who had looked at purchasing the property was not told about the waterline either, and testified that had he known of it, he would not have purchased the property
• the Plaintiff received absolutely no notice of the shared waterline from the vendor prior to closing, and the first notice she had was from the neighbour in 2007
• surveys of the farm did not show the shared waterline, and would not have assisted a prospective purchaser or realtor in understanding that there was a shared water system
• the assertion by the vendor's real estate agent that notice of the waterline was not included in the property listing because there was no room for it was "incredible"
• the waterline to the neighbour's property was in use since October, 1967
• the evidence of the dental surgeon was that he consented to the use of the waterline from the time he purchased the farm property in 1975

The Court dismissed the claim by the neighbour for a prescriptive easement on the basis that use of the water line had been by consent (during the period relevant to determine the easement - in this case, 1967 to 2000, when the land was converted to Land Titles) and on the basis that the use was not "open and notorious".  The waterline was not visible and could not be discovered by the Plaintiff except from disclosure by another party. 

 

The neighbour's claim for an injunction was also dismissed.  There was no evidence of irreparable harm to the neighbour if the injunction was not granted - she could drill her own well for water. 

 

Justice DiTomaso then ruled that the waterline was a latent defect in the property and that the vendor, the retired dental surgeon, "misrepresented the nature of the property for sale by failing to notify or inform [the Plaintiff] that the water supply from the Farm supplied properties and residences to the north by way of the waterline."  The judge did not find that the misrepresentation was fraudulent (i.e. intended to mislead), but did find it was negligent and gave rise to liability.  The Plaintiff was awarded $25,500 in damages plus interest.

 

Read the decision at: Hanisch v. McKean.