The Estate of John McKinlay sought summary judgment against the Municipality of Chatham-Kent for a declaration that the Municipality was responsible for maintaining a drainage tile (Drain) on the Estate's property and for reimbursement of repair costs and crop losses.
The Drain was installed under an easement granted by the Estate's predecessor to the Province, which was later transferred to the Municipality's predecessor.
The court found that the easement granted the Municipality the right to maintain the Drain but did not impose a positive obligation to do so.
Therefore, the claim for declaratory relief was dismissed.
However, the court declined to grant summary judgment dismissing the entire action, noting that the Estate's amended statement of claim pleaded facts capable of supporting a claim for damages in nuisance, which was not fully canvassed during the motion.
The motion for summary judgment was dismissed, allowing the nuisance claim to proceed to trial.