2017 Soybean Harvest

2017 Soybean Harvest

Tuesday, June 9, 2015

BC Court rules neighbours liable in nuisance for "water problem" discharges

A recent BC Supreme Court decision begins: "It has been said that water is the driving force of all nature and as such it can be very destructive. ... It is a truism that water follows the path of least resistance and flows down a landscape to find the lowest point.  It has a tendency to descend and flow with great readiness.  These properties of water are abundantly clear in this case which involves a now protracted dispute between neighbours."

Neighbours A alleged that Neighbours R made changes to the R property that resulted in water damage to the A property.  Neighbours A sued in nuisance, negligence and trespass and sought general, aggravated and punitive damages, as well an injunction obligating Neighbours R to remedy the problems.

The most significant change to the R property was the installation of a tile drain (as part of a french drain) ending about 3 feet from the boundary between the A and R properties.  This tile redirected water from the R property to the A property.  Neighbours R also raised the grading of their property by a few feet, which put their property higher than the A property.  Previously, the R property had been lower than the A property at the boundary in question.  The increased water flows (including sludge) that resulted from these changes caused the damages to the A property alleged by the A neighbours.

As a threshold issue, the judge in this case examined the applicability of statutory limitation periods.  Justice Kerr ruled that the two-year limitation period did apply.  However, she also recognized that where there is continuing damage, a new cause of action arises each day (to some extent resetting the limitation period each day for any "fresh damages").  In this particular case, the effect of the limitation period was that Neighbours A could not recover for any damages sustained before November 25, 2007.  The french drain had been installed in 2001, but they did not commence their action until November, 2009.

Justice Kerr concluded that Neighbours R were liable to Neighbours A in nuisance.  Neighbours R had caused "a substantial and unreasonable interference" with their neighbours' use and enjoyment of the A property.  And Neighbours R were not saved by any riparian rights.  The evidence showed that the water problems resulted from groundwater rather than surface water and that the flow of water between the properties was not by way of a natural watercourse.  Neighbours R could not say that they were not causing a nuisance for having allowed surface water to flow naturally across their land to the A property.  Even if they were dealing with surface water, Justice Kerr found that the flow was the result of the significant changes made to the R property.

She awarded to Neighbours A the sum of $10,000 in non-pecuniary general damages for loss of use and enjoyment of the A property and the sum of $27,908.66 in pecuniary general damages for the cost of remediating the A property.

Read the decision at: Allison v. Radtke.