2017 Soybean Harvest

2017 Soybean Harvest

Wednesday, November 6, 2013

Southwest Middlesex drainage case back in Court

The law decided in a recent case involving a municipal drain in the former Township of Ekfrid is not as interesting as the facts of the case.  Justice Rady made a few rulings about the applicability of limitation periods and decided that only the municipality could be the subject of a claim under Section 79 of the Drainage Act.  However, it is her rendition of the facts that will be of most interest.

Here is an excerpt with the background for the case:

[9] In 1964 the plaintiffs, who are farmers, purchased a farm of more than 100 acres located on the north side of Irish Drive in the former Township of Ekfrid. The Township has since been amalgamated into the Municipality of Southwest Middlesex.
[10] Since approximately 1897, the southerly portions of their property and the adjacent lot to the west drained into the Saxon drain. The Saxon drain was originally constructed as an open ditch, approximately eight feet deep and twenty feet wide, which travelled south from Irish Drive toward Kings Highway No. 2. The Saxon drain crossed the lands of the defendants, John Wolfe and Grant Wolfe.
[11] A second branch of the Saxon drain extended easterly along the north side of Irish Drive to the southwest corner of the plaintiffs’ property and provided the connection between the southwest portion of the plaintiffs’ property and the main drain. The Saxon drain had been effectively draining the southwest portion of the plaintiffs’ property and the southeast portion of the adjacent lot since 1897.
[12] In or about 1973, the plaintiffs applied under the Drainage Act to deepen and improve their outlet and the main drain. The Township appointed an engineer, the defendant, A.M. Spriet and Associates.
[13] John Wolfe and Grant Wolfe are said to have proposed to Spriet that a portion of the Saxon drain be filled in and replaced with a closed tile. Spriet endorsed the proposal and provided a report to the Township in February 1974, which was approved and passed as by-law number 8-74.
[14] Spriet then designed a tile system to replace a substantial portion of the open ditch. When they expressed concern, affected property owners were assured that the final plan to be prepared by Spriet would include a ditch, spillway or waterway of some kind along the course of the drain that would take excess surface water from the plaintiffs’ property and the adjacent lot.
[15] The work proposed in the Spriet report was performed by Grant Wolfe (one of the property owners benefitting from the ditch’s elimination) and supervised by the Township and/or Spriet.
[16] From 1966 until 1974, the plaintiffs had no complaints about the drainage of their land. However, after the tile was laid and the ditch filled in, they noted that no ditch, spillway or waterway had been constructed and that the plaintiffs’ property and the adjacent lot were no longer draining properly. In particular, during spring runoff and after heavy precipitation, ditches adjacent to that area of Irish Drive would fill and surface water from the adjacent lot would back up onto the plaintiffs’ property, instead of flowing into the Saxon drain, something that occurred several times a year until approximately 2001. The plaintiffs sustained damage to their property and home as a result.
[17] In 1975 and unbeknownst to the plaintiffs, Spriet had advised the Township of a“grievous” error made by Grant Wolfe when he constructed the drain because it had been installed almost one foot too high to provide an outlet for proper drainage of the plaintiffs’ property.
[18] Subsequently, Spriet and the Township authorized the construction of a connection from the plaintiffs’ tile to the main drain beneath the land owned by John Wolfe for a distance of approximately 700 feet, which was to be constructed at Grant Wolfe’s expense. This “relief drain” was intended to remedy the earlier defective construction and provided a benefit to John Wolfe. The plaintiffs were not advised of the error nor told about the construction of the relief drain until 1996. Neither the Spriet report nor by-law number 8-74 was amended to reflect the change. Notwithstanding the error, Spriet certified to the Ministry of Agriculture that the drain had been constructed generally in accordance with the plans and specifications.
[19] The plaintiffs subsequently retained an engineer, who confirmed that a deep rather than shallow waterway was required along the old course of the ditch to take away excess surface water.
[20] The initially constructed waterway in or before 1978 was billed to the plaintiffs and other property owners upstream from the Saxon drain although those costs would not have been incurred had a proper waterway been constructed in the first place. Because the waterway had not been included in the Spriet report, it was characterized as a maintenance item and did not become part of the drainage works of the Saxon drain. The waterway gradually filled in as a result of erosion and cultivation and affected property owners had no means to enforce maintenance.
[21] Unfortunately, the plaintiffs continued to experience flooding and property damage and they repeatedly complained to the Township. The Township is said to have taken no steps to advise the plaintiffs of what it knew about the source of the problem or to have it investigated and corrected.

Read the rest of the decision at: Ward v. Southwest Middlesex Municipality.