3 minute read
Agrilaw
of water in the ditch was severely restricted by the overgrowth of trees and brush. The farmer wanted to clear out the ditch and telephoned his neighbour to discuss his plan sometime in the summer of 2011. The farmer called the neighbour again in the summer of 2012 and they again discussed the farmer’s plans to clear out the drain, including the removal of trees along the boundary line between the two properties. This is where the farmer’s and the neighbour’s accounts related to the Court diverged. The farmer said that the neighbour agreed to his proposal and granted permission to him to enter her property and clean up the area of the drain, including by removing trees. The neighbour denied that she agreed to the removal of any trees. She said that she and the farmer had only agreed to discuss the matter in more detail at the upcoming local Fall Fair, but that the farmer didn’t show up. Believing that he had permission to do so, the farmer entered onto his neighbour’s property, clear cut the entire tree line of about 300 trees (some of which were on the farmer’s property and some of which were on the neighbour’s property, with some standing as tall as 40 to 60 feet) and filled in the existing drainage ditch with plans to install a new ditch. The neighbour became aware in September, 2012 of the work that had been carried out by the farmer. When the farmer determined that the neighbour was not in favour of the work he had done already, he took no further steps on his own to install a new ditch. Instead, the farmer petitioned a municipal drain. The municipality eventually constructed a drain consisting of a 6.2-metre-wide open ditch between the farmer’s property and the neighbour’s property connected at each end to one of the existing municipal drains. The assessed cost of the drain was $102,000, with about $77,000 assessed to the farmer and about $25,000 assessed to the neighbour. The neighbour sued the farmer for trespass, resulting in the case that ended up before the Court of Appeal. She brought a motion for summary judgment on the issue of liability for trespass. Madam Justice Hebner of the Superior Court granted the motion, finding that the farmer did not have permission to clear cut the tree line. She noted:
Although the parties have different recollections as to the exact conversation between them, one thing is very clear. They agreed to meet at the [Fair] where they would talk in more detail about the work to be done. [The farmer] said that the plan for the meeting at the [Fair] was to “basically go over with her what I was going to be doing. Clean up the fence row and putting in a new ditch.” The meeting did not happen. [The neighbour] went to the [Fair]. [The farmer] did not. Without contacting [his neighbour] again, [the farmer] went onto her property the Friday after the Fair and proceeded to cut down the trees, remove the brush and fill in the
Advertisement
The deadline for the March issue of The Rural Voice is February 8, 2022
ditch. […]
In my view, the evidence is consistent overall with a discussion as opposed to an agreement with leave and a licence granted by [the neighbour]. That discussion was to continue at the Fair. As the discussion did not continue, I find that leave and licence was never granted to [the farmer] to do any work on [the neighbour]’s property. Interestingly, the farmer had also alleged that his second telephone conversation with his neighbour took place by speaker phone, with a third party hearing the discussion. However, the farmer did not provide an affidavit from this third party on the motion for summary judgment. Justice Hebner drew from the absence of an affidavit from the alleged thirdparty witness, and from the absence of any explanation from the farmer for having no affidavit, the inference that the witness would not have supported the farmer’s version of the conversation with the neighbour. Stay tuned for Part II – Damages. ◊ ______________________________ John D. Goudy’s law practice includes real property and environmental litigation, expropriation law, energy regulation, and regulatory offences. Agrilaw provides information of interest to the farming community, not legal advice. Readers should consult a legal professional about their particular circumstance.
