ONTARIO DRAINAGE TRIBUNAL
APPEAL:
MISENER REQUISITION DRAIN (RE) Township of Seneca Paul Stoneman Beverley Misener
MISENER REQUISITION DRAIN (RE) 1995 ONAFRAAT 32
STATUTE:
HEARING:
October 17, 1995
October 25, 1995
NEUTRAL CITATION:
1995 ONAFRAAT 32
TOWNSHIP OF SENECA
MISENER REQUISITION DRAIN
IN THE MATTER OF:
THE DRAINAGE ACT R.S.O. 1990, CHAPTER D.17, AS AMENDED.
AND IN THE MATTER OF:
An Appeal to the Ontario Drainage Tribunal by Paul Stoneman from the engineer's report regarding the Misener Requisition Drain, South Half of Lot 8, Concession 1 NWSCR, former Township of Seneca, now in the Town of Haldimand.
Before:
Mr. Vernon Spencer, Chair; Mr. Andrew Osyany, Vice-Chair; Mrs. Betty Lambert, Member.
Appearances:
Mr. Paul Stoneman, appellant. Mr. Robert Heil, corporate manager, on behalf of the respondent, the Town of Haldimand; Mr. Ralph Benedict, counsel, to Mrs. Beverley Misener.
DECISION OF THE TRIBUNAL
This appeal was heard in Cayuga, Ontario on October 17, 1995. Mrs. Janis Lankester, Clerk of the Town of Haldimand (the town), was the Clerk of the Tribunal.
Mr. Paul Stoneman appealed to the Ontario Drainage Tribunal (the Tribunal) under Section 48(1) of the Drainage Act R.S.O. 1990, Chapter D.17 (the Act), from the engineer's report regarding the Misener Requisition Drain. Section 48(1) of the Act is as follows:
48(1) Any owner of land or any public utility affected by a drainage works, if dissatisfied with the report of the engineer on the grounds that,
(a) the benefits to be derived from the drainage works are not commensurate with the estimated cost thereof;
(b) the drainage works should be modified on grounds to be stated;
(c) the compensation or allowances provided by the engineer are inadequate or excessive;
(d) the engineer has reported that the drainage works is not required, or is impractical, or cannot be constructed under section 3,
may appeal to the Tribunal, and in every case a written notice of appeal shall he served within forty days after the mailing of the notice under section 40 or subsection 46 (2), as the case may be.
The Background
A requisition for drainage works, dated July 31, 1991, was filed with the town by Beverley Misener, owner of S½ Lot 8, Concession 1 NWSCR, Seneca Township. The drain is to provide an outlet for a tile drainage works on the land of Mrs. Beverley Misener. A random tile works with two berms to provide water storage in an attempt to control the rate of run-off from the Misener lands has been installed on the S½ Lot 8. This system outlets into a concrete box culvert that runs under the road between Lot 8 and Lot 7, Concession 1 and then follows a swale across Lot 7 (the Stoneman property) and Lot 6 (the Bowarski property). The owner of Lot 7 farms this swale.
The engineer has recommended payment of allowances to the owners of Lot 7 and Lot 6, Concession 1. This allowance is to give the owners the flexibility of installing a tile drainage system to control seepage water from the Misener lands, or to continue to use the land in its present state. The requisition drain consists of a strip of land five meters wide by 950 meters long on the Bowarski property and five meters wide by 850 meters long on the Stoneman property. The cost of the requisition drain is charged entirely to the Misener property.
The Issue
Should the Tribunal order a modification to the report to require the construction of an appropriately sized tile drain to conduct water from the Misener property across the Stoneman property instead of the payment of an allowance as recommended by the engineer?
The Findings
Mr. Bryon Wiebe was appointed by the Town to prepare a report in response to the requisition filed by Mrs. Beverley Misener. Mr. Wiebe told the Tribunal that the drainage area is approximately 115 hectares. He said that the 5-foot by 2.3-foot culvert across Stoneman Road shows that a substantial area drains across the Misener land. An on-site meeting was held in 1992 at which time the drainage problems were discussed. Mr. Wiebe said that at the site meeting:
Mr. Misener advised that he had installed random tile drainage with two berms to control the runoff.
Mr. Stoneman said that he now had a seepage problem. He said that prior to the tile work, he could work through the watercourse on his property but because of the seepage from the tile outlet, he now makes significant ruts when crossing the watercourse. It was a workable watercourse and he cropped it using a rotation of soybeans for two years, oats for two years and then alfalfa. He reshapes the watercourse when grain crops are grown. He said that land in the area was worth $1,000 per acre.
Mr. Wiebe determined that there is about seven feet of fall across the Stoneman property. He said that he walked the watercourse and observed a clearly defined channel in most places. He said that, in his opinion, there was clearly evidence of the flow of surface water. He observed ruts from machinery driving across the watercourse, and the ruts were three to five meters long. Mr. Wiebe observed that the Ontario Base Maps show about 4.5 meters of fall from Stoneman Road to the next road - a distance of 2,000 meters. Mr. Wiebe said that he concluded that the watercourse was a natural watercourse and that more than reasonable use was being made by upstream owners, as evidenced by the seepage effect across the Stoneman property. He also concluded that there is a limited area impacted. He said that, in his opinion, a four-inch tile would eliminate the seepage and improve the Stoneman property to the point where it was better than before upstream tile was installed. He said he would assess the cost 50% to Mr. Stoneman and 50% upstream if a tile was installed.
Mr. Wiebe told the Tribunal that, in his opinion, paying an allowance to the downstream owners gave the option to the landowner to either use the land in its present state or install a tile to solve the seepage problem. He felt that this was the most cost beneficial solution for the problem.
In response to questions from the Tribunal, Mr. Wiebe said that he had not specified a location, profile, point of commencement or point of outlet for the drain since no work was proposed. He said that the slope of the land was such that he felt it would not be practical to block the flow across the Stoneman property and cause water to back up onto the upstream property. He said that he provided authority for the municipality to remove any obstructions, if necessary. Mr. Wiebe estimated that a profile survey of the drain would cost about $1,000. He estimated the cost of installing a four-inch tile across the Stoneman property to outlet at the next road at between $3,500 and $4,000. The assessment schedule in the report was a statement that all of the costs were charged to the Misener property. Mr. Wiebe said that he had not incurred the cost of the profile survey or calculating the normal assessment schedule because he was recommending the payment of an allowance rather than construction, and he was trying to minimize the cost of the project.
Mr. Robert Misener spoke on behalf of Mrs. Beverley Misener. He told the Tribunal that prior to purchasing this farm, Mr. Stoneman was approached about an outlet for a water and sediment control basin and a tile drainage system. Mr. Misener said that Mr. Stoneman told him that he would not stand in his way. According to Mr. Misener, when the tile was being installed in 1991, he went to Mr. Stoneman to secure the outlet at Stoneman Road. Several issues were discussed at the meeting. Mr. Misener told the Tribunal that at a second meeting about the outlet, Mr. Stoneman said that we needed an "outlet sale" and the cost would be in excess of $40,000. He said that after discussions, a verbal agreement for the outlet was reached with Mr. Stoneman. This verbal agreement was witnessed by the tile contractor, Mr. Terry Martin. The agreement was to install a four-inch tile across Mr. Stoneman's property to outlet into the watercourse on Mr. Bowarski's property. According to Mr. Misener, when he brought back a written copy of the agreement, Mr. Stoneman refused to sign.
Mr. Misener told the Tribunal that an eight-inch tile outlet for the flow control basin and a random tile installation was constructed on the property at the upstream end of the road culvert at Stoneman Road. Mr. Misener said that since there was no opportunity to negotiate with Mr. Stoneman, Mrs. Misener, the owner of the property, applied for a requisition to secure the outlet. Mr. Misener said that he had no objections to the engineer's final report on the Misener Requisition Drain.
Mr. Misener said that he has installed tile drains on over 1,100 acres. In his experience, seepage from a tile outlet has not been a problem during cropping season in excess of 100 feet downstream from the outlet.
Mr. Paul Stoneman told the Tribunal that he has farmed his property for forty years. He said that during this time, he had not experienced a problem with seepage in the watercourse. The water flows across his land, and he accepts that. He has no tile on the property. He said that since the outlet was installed on the Misener land, he has had a seepage problem on his land. The effect of the seepage is limited to a narrow strip across the property, but it affects the entire property as he is not able to cross this strip with machinery after a rainstorm. He said that the upper end of the stream bed has been in forage since the outlet was installed. He has been able to work and plant the rest of the stream bed each year since 1991, but he has not been able to harvest it every year. He said that this year he left a strip one meter wide because the area was too wet to cross. Mr. Stoneman told the Tribunal that, in his opinion, since the strip divides the entire 75-acre parcel, the seepage affects the entire parcel.
Mr. Stoneman said that he felt it was not proper to improve one property at the expense of another. To solve the problem, as it now exists, a tile should be constructed to conduct the water across his property to a sufficient outlet. A mutual agreement drain is not acceptable to Mr. Stoneman. He said that after he had met with Mr. Misener and agreed to the installation of a four-inch tile across his property, he was advised that this may result in liability if a problem was created for the downstream owner. He said he did not want to assume this responsibility.
Mr. Stoneman assured the Tribunal that he would willingly pay his share of a tile drain, constructed under the Act, to solve the problem. He also said that the allowances in the present report would not pay for the installation of a tile drain across his property to an outlet, and therefore, the allowance was inadequate.
After the hearing, the Tribunal viewed the site. The Tribunal was impressed with the agricultural production of the area. The Tribunal observed that the water and sediment control basin and tile drainage on the Misener property had allowed Mr. Misener to crop his land across the watercourse. The Tribunal also observed water flowing onto Mr. Stoneman's land and a yellowed strip of forage across the upper part of the property of Mr. Stoneman. In the opinion of the Tribunal, this yellowing indicates waterlogging of the soil, and this waterlogged strip would interfere with the cropping and cultivation of this field.
The Tribunal agrees with Mr. Stoneman that the appropriate solution to this drainage problem is the installation of a tile drain to control the seepage from the outlet on the Misener property.
After concluding that the appropriate solution to this drainage problem is the construction of a properly sized tile, the Tribunal examined the cost estimate. The engineering cost up to the point of the filing of the report was $3,500. The estimated cost of a profile survey was $1,000. The estimated cost of a four-inch tile drain was $3,500 to $4,000. This totals $8,000 to $8,500 and does not include all of the work necessary to complete an engineer's report that provides for the construction of a drainage tile. Clearly, the cost of constructing a drainage tile is beyond the limitations imposed by Section 3 of the Act.
In the opinion of the Tribunal, the parties have all acted in good faith in attempting to solve this drainage problem. Mrs. Misener has thoroughly explored the possibility of a mutual agreement drain, without success. She then took the initiative of filing a requisition with the Town. Mr. Wiebe reviewed the extent of the problem on the Stoneman property and concluded that the most cost beneficial solution was to provide an allowance to the owner that would partially pay for a tile drain across the property. Mr. Stoneman was convinced that the appropriate solution to the problem was to construct a tile and appealed to this Tribunal to have the report modified. In the opinion of the Tribunal, each party was doing what they thought best for the land involved.
The Tribunal was impressed by Mr. Stoneman's statement that he would willingly pay his share of a drain constructed under the Act. The Tribunal would like to provide an opportunity for a tile to be constructed under the Act, and it appears to the Tribunal that, in the current circumstances, it can only be constructed under Section 4. Therefore, using its authority under Section 51, the Tribunal will provide an opportunity for the filing of a petition and continuation of the project without the loss of money invested to date.
Decision and Reasons
Having reviewed the evidence submitted, the submissions made at the hearing and after viewing the site, the Tribunal decided to grant the appeal of Mr. Stoneman.
The reasons for this decision are:
The Tribunal agrees with Mr. Stoneman that a tile drain is the most appropriate solution to this problem. In the opinion of the Tribunal, the evidence shows that such a project cannot be constructed for under $7,500 and therefore, Section 3 of the Act cannot be used to solve this problem.
In order to allow the community to act and solve the problem and utilize the investment already incurred, an opportunity to file a petition in accordance with Section 4 of the Drainage Act needs to be provided.
ORDER OF THE TRIBUNAL
The Tribunal orders that:
A ninety-day period, commencing November 1, 1995, be provided for the property owners to file a petition in accordance with Section 4 of the Drainage Act. If such a petition is filed with the municipality, then the costs incurred in responding to the requisition of Mrs. Beverley Misener shall be included in the cost of the drainage works constructed in response to the petition.
If such a petition is not filed within the specified ninety-day period, the requisition of Mrs. Beverley Misener fails, and the costs of the requisition shall be assessed in accordance with Section 3(17) of the Act.
It is ordered that there be no order as to costs and all parties are responsible for their own costs.
Attention is drawn to Section 73 of the Act.
Dated at Chatsworth, Ontario, this 25th day of October 1995.