1993 S.H. 93‑6587 IN THE SUPREME COURT OF NOVA SCOTIA BETWEEN: THE ESTATE OF SAMUEL HAVERSTOCK and ARMOYAN PROPERTIES LIMITED, body corporate DECISION HEARD BEFORE: The Honourable Justice David W. Gruchy in the Supreme Court of Nova Scotia (Chambers) on May 31, 1994 DECISION: May 31, 1994 WRITTEN RELEASE August 22, 1994 OF ORAL: COUNSEL: Darlene Jamieson, for the Appellant Meinhard Doelle, for the Respondent Kevin Latimer, for Halifax County GRUCHY, J. (Orally) Armoyan Properties Limited has undertaken the residential development of certain lands in the County of Halifax. Bordering Armoyan lands are certain lands of the Estate of Samuel Haverstock. Armoyan has sold house lots in its subdivision and houses have been constructed. Armoyan has also constructed roadways. One such road is one lot removed from and parallel to lands of Haverstock. Armoyan has proposed to convey roadways to the Nova Scotia Department of Transportation and Communications. That Department has indicated that before it will accept conveyance and responsibility for the roadways, it requires the consent of the owners of property where water will drain from the road; in this case the Haverstock Estate. The Haverstock Estate has refused to consent to such drainage across its lands and has refused to surrender its right to future claims, should damage occur. Armoyan made application to the Municipality of the County of Halifax for implementation of proceedings under the Ditches and Water Courses Act, R.S.N.S. 1989, c.132. Meetings pursuant to that Act failed to achieve agreement. Armoyan therefore filed requisition with the Clerk of the County pursuant to s.7(1) of that Act. That section reads as follows: "7 (1) If the parties at the meeting do not agree any owner may file with the clerk of the municipality in which the lands requiring such ditch or drain are situated, requisition (Form or to the like effect) shortly describing the ditch or drain to be made, deepened or widened, and naming the lands which will be affected thereby and the owners respectively and requesting that the engineer appointed by the municipality for the purpose be asked to appoint day in which he will attend at the time and place named in the requisition, which shall not be less than six or more than twelve clear days from the time of filing the same, and shall also at least four clear days before the time appointed therein serve upon all the persons named in such requisition notice (Form or to the like effect) requiring their attendance at the same time and place provided, nevertheless, that when it is necessary in order to obtain an outlet, that the drain or ditch shall pass through or partly through the lands of more than five owners (the owner first mentioned in this Section being one), the requisition shall not be filed unless (a) such owner first obtains the assent in writing thereto of (including himself) majority of the owners affected or interested; (b) resolution of the council of the municipality in which the greater portion of the work is to be done, approving of the scheme or proposed work, is first passed, after those interested have been heard or have had an opportunity to be heard by the council upon notice to that effect; or (c) the assent (by resolution) of the said council approving of the proposed extension to the lands of other interested persons is first passed after hearing or notice as hereinbefore provided. The County by resolution appointed Dr. Donald Waller as the municipal engineer pursuant to s.4 of the Act. He met with County officials and then convened two meetings with Armoyan and representatives of the Haverstock Estate. From the outset Haverstock protested the procedure. Dr. Waller received certain evidence from the parties, including especially report from Armoyan's consulting engineers as to the anticipated flow of drainage and possible courses for that flow across the Haverstock lands. Following the hearings, on November 15, 1993, Dr. Waller submitted his report to the County of Halifax. That report, together with various appendices, has been produced to me by the solicitor for the Haverstock Estate the Appellant. The report and material have been supplied to me in full. It consists of document bearing page numbers 010 to 081. In his "interpretation' of the Act Dr. Waller concluded that it applied to the situation before him for two reasons: (a) Armoyan lands had opened ditch on its own lands "...to enable better use of their lands and to continue to provide drainage to upstream land...at their expense in accordance with their interest", and (b) Armoyan seeks "...to open ditch on the property of the Haverstock Estate, and are prepared to pay for the same because it is in accordance with their interest." Dr. Waller's conclusions as to the respective legal rights of the parties under the Act are as follows: (2) According to Section 5(2), Armoyan Properties are required to continue ditch or drain to proper outlet, and entitled to construct it through the Haverstock lands to proper outlet. (3) According to Section 5(2), Armoyan Properties cannot flood the Haverstock lands by construction of the ditch or drain without the owner's consent. (4) According to Section 5(3), Armoyan Properties are required to maintain the ditch or drain. (5) According to Section 10(1), if the Haverstock Estate is not interested in opening the ditch or drain, the engineer may award that it be opened at the expense of Armoyan Properties. In summary, Armoyan Properties are entitled to construct ditch or drain across lands of the Haverstock Estate, provided that 1) they continue it to proper outlet, and 2) they design, install, and maintain it in manner that will address concerns about the effects on the Haverstock lands, which have been identified as flooding, channel erosion, and deposition of upstream sediment." In order to put Dr. Waller's conclusions into context, cite the full text of s.5 and ss.(1) of s.10 of the Act. “Maintenance of ditches (1) In case of owners of lands, whether immediately adjoining or not, which would be benefited by making ditch or drain, or by deepening or widening ditch or drain already made, in natural water course, or by making, deepening or widening ditch or drain for the purpose of taking off surplus water or in order to enable the owners or occupiers thereof the better to cultivate or use the same, such several owners shall open and make, deepen or widen, just and fair proportion of such ditch or drain, according to their several interests in the construction of the same; and such ditches or drains shall be kept and maintained so opened, deepened or widened by the said owners respectively, and their successors in such ownership, in such proportions as they have been so opened, deepened or widened, unless in consequence of altered circumstances the engineer otherwise directs, which he is hereby empowered to do, upon application of any person interested, in the same form and manner as is hereinafter prescribed in respect to the original opening, deepening or widening, and in case the engineer finds no good reason for such application, all costs caused thereby shall be borne by the applicant and shall be collected as in this Act provided. Outlet for ditch (2) Every such ditch or drain shall be continued to proper outlet, so that no lands, unless with the consent of the owner thereof, will be overflowed or flooded by the construction of any such ditch or drain, and it shall be lawful to construct such ditch or drain through one or any number of lots until the proper outlet is reached. (3) Such consent shall be in writing and signed by the person consenting, and shall be filed with the clerk with the award, and may be recited or referred to therein. Notice to repair (4) Where ditch or drain has been constructed under this Act, and any owner whose duty it is to maintain and keep in repair any portion of the ditch or drain neglects to keep such portion in proper state of repair, any one of the owners who is liable for maintaining and keeping in repair any portion of such ditch or drain may, in writing, notify the owner who neglects to keep his portion of such ditch or drain in proper state of repair, to have the same put in such repair, and to have the same completed within thirty days from the receipt of the notice. Application to council (5) The owner who serves the notice may, if the work has not been performed at the expiry of the thirty days, make application to the council to have the repairs carried out and completed. Order for examination (6) The council shall, when such application is made, order an examination of such portion of the ditch or drain as is complained of, to be made by the engineer, or by some other person to be appointed by the council, and who may be called the "inspector of drains and ditches". Certificate of inspection (7) The inspection shall be made not later than twelve days from the time of the ordering the same, and the engineer or inspector, as the case may be, shall within twelve days after making the inspection, file with the clerk certificate stating whether the complaint is well founded or not, and wherein the ditch or drain requires repairing. Repairs by council and disqualification (8) If the engineer or inspector, as the case may be, certifies that the complaint is well founded, the council shall order him to proceed and let the work in the manner in this Act hereinafter provided for re‑letting work, unless the owner has himself in the meantime completed such repairs in accordance with the report or certificate of the engineer or inspector. Remuneration of inspector (9) The provisions of this Act as to the inspection and payment of engineer's or inspector's fees and cost of work shall apply, and the council may fix the remuneration of the inspector during the time he is engaged in the performance of any duties under this Act. Restriction on appointment (10) member of the council shall not be appointed inspector. (11) If the engineer or inspector decides that the complaint is not well founded, the person making the complaint shall pay the fees of the engineer or inspector, and if not paid by him they shall be paid by the council and charged as hereinafter provided. (12) Any owner or person interested under proceedings taken under or by virtue of this Section shall have the right of appeal as provided by this Act where the amount involved exceeds the sum of twenty dollars. R.S.,c.78,s.4. Construction awarded 10 (1) If it appears to the engineer that the owner or occupier of any tract of land is not sufficiently interested in the opening up of ditch or drain to make him liable to construct any part thereof, and at the same time that it is necessary for the other parties that the ditch or drain should be continued across the tract, he may award the same to be constructed at the expense of the other parties, and after the award the other parties may open the ditch or drain across the tract at their own expense without being trespassers, but causing no unnecessary damage, and replacing any fences opened or removed by them." Dr. Waller set forth three options. He said Armoyan could continue its ditch to "proper outlet" in one of three alternative ways: 1. ditch or drain could be constructed through the Haverstock lands to Schmidt Lake which abuts the Haverstock property, and which ditch or drain would cause some disturbance to those lands; 2. ditch or drain could be constructed to certain wetlands within the Haverstock lands, thereby raising the water level of the wet area but decreasing the negative effect of draining directly into the lake; and 3. Permit the discharge of the Armoyan drainage at the Haverstock boundary and, recognizing possible erosion caused by increased water flow, provide erosion protection, which protection is to be determined. Dr. Waller concluded his award by stating "...Armoyan is entitled to install a ditch and drain on the Haverstock lands...", subject to certain requirements which he set forth. He said that his fees, in accordance with the County's resolution, were to be charged to Armoyan. The Haverstock Estate appealed this decision pursuant to s.12 of the Act and stated the issues of the appeal as follows: 1. What is the Scope of Appeal in this matter? 2. Is the Act applicable to the facts of this case? 3. Is defining the term "proper outlet" matter beyond the jurisdiction of the Municipal Engineer, and was there evidence presented at the hearing upon which the findings of fact in the decision, relating to what is proper outlet, could have been made? Armoyan stated the issues as follows: 1. What is the scope of appeal in this matter? 2. Did the Municipal Engineer, Dr. Waller, err in fact or law or exceed his jurisdiction in determining that, subject to certain conditions, the Respondent is entitled to install ditch or drain on the lands of the Appellant? 3. Did the Municipal engineer, Dr. Waller, err in law or in fact in requiring the Respondent to pay for Dr. Waller's services under the Act? have accepted Armoyan's issue as, in effect, cross‑appeal against the order for the payment of Dr. Waller's fees by Armoyan. There is short answer to this appeal without dealing with the specific issues raised by the parties. Dr. Waller did not comply with s.9 of the Act. That section, as have set forth above, requires that he shall specify "...clearly the locallty, description and course of the ditch or drain, point of commencement and termination of same, the portion of the ditch or drain to be constructed by the respective parties, and the time within which the work is to be done...". The award does not comply with that section. It concludes that Armoyan is entitled to install ditch, but leaves it to Armoyan to provide Haverstock certain technical information so that it may choose which of the three options it wishes to have pursued. The offering of choice to Haverstock and the ordering that the ditch or drain shall be designed by Armoyan do not discharge the engineer's duties under the Act. On that basis alone, would set aside that portion of Dr. Waller's order. The parties, however, have raised issues in this appeal which ought to be addressed. Pursuant to the Act, could simply refer the matter back to Dr. Waller. choose not to do so and will, therefore, make certain general statements concerning this matter in which address some of the specific issues raised. GENERAL From the outset, Haverstock has questioned the appropriateness of the process under the Ditches and Water Courses Act. share that concern. The material presented to me shows that Armoyan proceeded to develop and sell lots in the subdivision in question before the care, maintenance and ownership of roads or streets had been assumed by the appropriate public authority the Department of Transportation and Communications. Apparently, subdivision approval has been given by the County to Armoyan. The development of the subdivision has created point of flow of surface water across the Haverstock lands. There is no natural watercourse to receive that flow within the Haverstock lands. In these circumstances, does the Act provide means by which Haverstock will be forced to accept the drainage? conclude that it does not. As general comment, the Act is very old, first appearing in the Nova Scotia Statutes in 1900. It appears to have been drafted for vastly different age and conditions and addresses problems which might arise in sparsely populated rural or agricultural areas. It does not address the conditions and problems of modern sprawling suburban area such as that with which we are dealing here. The Act appears to assume that respective landowners are in some measure of agreement brought about by the tacit inference that the lands will be benefited by the making of ditch or drain. (See s.5). The Act provides a method of apportioning the cost of the ditch or drain amongst the owners and prescribing the means by which will be determined the necessary technical details of the ditch including its location and termination point, or proper outlet. The contents of the engineer's award are prescribed by s.9 of the Act. S.5(2), however, requires that any outlet to ditch or drain may not be located on lands which will be overflowed or flooded without the consent of the owner. In this case, Haverstock's consent has not been forthcoming. The Act does not give the engineer authority to take (or expropriate) land, or any interest in it. Yet clearly the construction of ditch or drain will require the use of the land on which it will be situated. The presence of such ditch or drain will prevent most ordinary uses of the land so occupied. The ditch or drain will be storm sewer which must, as development occurs, be maintained for the benefit of the upstream public. It is reasonable to assume that Armoyan, as subdividing developer, will sell off its land, leaving the Haverstock land with gratuitous duty to maintain that storm sewer or drain for the benefit of its upstream neighbours. It is surely not the intention of this Act to enable private developers such as Armoyan to use the private property of its neighbours to solve the problems it has created. It cannot be the intention of the legislation to permit the Department of Transportation and Communications, before assuming the responsibility for the road, to insist that the rights of the adjacent property owners be extinguished in the fashion put forward by this process. If the Act's process had led to the conclusion by the engineer that the Armoyan property, or the road, could be ditched but no overflow or flooding would be caused thereby to the Haverstock land, then an award or order to that effect by the engineer might have been appropriate. That was not the case as, in fact, the engineer went further. He recognized that the Armoyan development had and would continue to have the effect of channelling water onto Haverstock lands. (See Dr. Waller's memorandum to the Haverstock Estate and to Armoyan, apparently undated, at p.045 attached to his final award.) Dr. Waller appears to have described the very situation the law seeks to avoid and as described in Farnham on Law of Waters (1904), Vol. 3, at p.2619, as cited and approved by the late Cowan, C.J.T.D., and by Hart, J.A. in Clayton v. Nova Scotia Housing (1982), 51 N.S.R. (2d) 451 at 455 where it was said: He (a property owner) may build upon or change the surface at pleasure, without liability for the incidental effect upon adjoining property. He cannot, however, by artifical means gather the water upon his property together and throw it upon the property of his neighbour, withether the grade of the latter's is higher or lower than his. The property of the neighbour is under no servitude to furnish artifical drainage for his property. Furthermore, the upper owner cannot change the course in which the water flows over the surface of his property, nor can he render his surface impervious so as to collect the water at his boundary and cast it upon his neighbour, nor can he do anything to relieve himself of the water at his neighbour's expense. The Act does not abrogate this common law. THE AWARD further analysis of Dr. Waller's award is advisable. Following an introductory recitation of Dr. Waller's retainer and the steps taken in the process, Dr. Waller set forth his interpretation of the Act. He concluded that the factual situation as he found it was that contemplated by s.5(1) and, therefore, the Act applies. His interpretation of the section was that Armoyan is required to continue ditch or drain to proper outlet and "...entitled to construct it through the Haverstock lands". He concluded, as have set forth above, that by virtue of s.10(1) he had the power to order that drain or ditch be opened across the Haverstock land at the expense of Armoyan. Dr. Waller was incorrect as to his conclusion as he has stated it. Armoyan was not entitled to construct ditch or drain without further considerations. set them forth: 1. The ditch or drain is clearly for the diversion of storm water. Storm water is included in the definition of "sewage" as contained in the Water Act, R.S.N.S.,c.500, s.2(i). Before proceeding with the construction of any such ditch or drain, full compliance with the provisions of the Water Act is required. Dr. Waller did not address that subject. 2. The compulsory use of the Haverstock lands, in my view, amounts to compulsory taking of that land or use thereof, and is not in accordance with the provisions of the Expropriation Act, R.S.N.S., c. 156. The award of Dr. Waller if acted upon amounts to an expropriation, pursuant to the definition of that word contained in s.3(l)(c) of the Expropriation Act. It is not necessary that precise piece of land be taken, as "land" includes any estate, term, easement, right or interest in, to, over or affecting land. That is precisely what Dr. Waller's award has done. If Dr. Waller has the authority to do as he purports to do then he appears to be "statutory authority" which means "...any person or body empowered by statute to expropriate land or cause injurious affection". S.4 of the Expropriation Act reads: "4 (1) Notwithstanding any general or special act, were land is expropriated or injurious affection is caused by statutory authority, this Act applied. (2) The provisions of any general or special act providing procedures with respect to the expropriation of land or the compensation payable for land expropriated or for injurious affection shall be deemed to refer to this act and not to the act in question. (3) Where there is conflict between provision of this act and the provisions of any other or special act, the provision of this act prevails." There has been no compliance with the provisions of the Expropriation Act and, therefore, Dr. Waller's conclusion as to Armoyan's right to act as he prescribed is incorrect. conclude that the Act is not an appropriate means for the resolution of the difficulties faced by Armoyan and the County in this case. Where the Haverstock lands are not to be benefited by the installation of ditch or drain and the Estate has not consented to the construction of same, the Act is not applicable. SCOPE OF APPEAL The scope of appeal is set forth in s.12 of the Act, but in my view, this question ought only to be addressed after have decided if the Act is applicable. have decided it is not. In any event, have also concluded that s. 12 would give me the powers to hear the matter de novo if it were necessary. COSTS Finally with respect to Dr. Waller's award of his costs against Armoyan refer to ss. 15 of the Act. will make no order for costs either for or against the County. award costs in the amount of $3,000.00 all inclusive to the appellant as against the respondent.
The respondent had undertaken the residential development of certain lands bordering the appellant's property and constructed roadways which it proposed to convey to the Department of Transportation, who agreed to accept with the consent of owners of property where water would drain from the road. When the appellant refused to consent, the respondent applied to the municipality for proceedings under the Ditches and Water Courses Act, which failed to achieve agreement. The respondent then filed a requisition with the county clerk pursuant to s. 7(1) of the Act which allows for the appointment of a municipal engineer. The engineer filed a report in which he concluded the respondent was entitled to open a ditch on the appellant's land, subject to certain conditions. In this action, the appellant appealed pursuant to s. 12 of the Act. Allowing the appeal, that the Act appears to assume that landowners will agree that a ditch benefits their land and provides a mechanism for apportioning cost. However, it does not give an engineer authority to expropriate land or take any interest in it, nor does it provide a means by which the appellant is forced to accept the ditch. Further, the common law prohibits the use of another's property to solve one's drainage problems.