ONTARIO DRAINAGE TRIBUNAL
APPEAL:
MODDE DRAIN (RE) Township of Chatham L. & J. Arnold, J. Gonyou, D. & J. Crowe and J. Anderson
MODDE Drain (RE) 1995 ONAFRAAT 06
STATUTE:
HEARING:
April 4, 1995
April 18, 1995 for Order June 8, 1995 for Reasons
NEUTRAL CITATION:
1995 ONAFRAAT 06
TOWNSHIP OF CHATHAM
MODDE DRAIN
IN THE MATTER OF:
An Appeal of L. & J. Arnold, J. Gonyou, D. & J. Crowe and J. Anderson from the Report of D. G. McGeorge, P. Eng. , dated August 22, 1994 on the Modde Drain, in the Township of Chatham, in the County of Kent
DECISION
This Appeal came before the Ontario Drainage Tribunal on April 4, 1995 at the Township of Chatham Council Chambers, 785 St. Clair Street Extension, R. R. #7, Chatham, Ontario.
All assessed owners were served with a Notice of Hearing, as evidenced by the Affidavit of Service filed, and invited to make representations.
At that time there appeared before the Tribunal, D. G. McGeorge, P. Eng., who prepared and presented the Report dated August 22, 1994; L. & J. Arnold; J. Gonyou; D. & J. Crowe and Loree Hodgson, Barrister and Solicitor as Counsel for the Appellant, J. Anderson and other assessed owners.
The Clerk of the Township of Chatham, Nelson J. Prail, acted as Clerk of the Tribunal. On hearing the evidence, the submissions and reading the materials filed:
- IT IS ORDERED THAT:
Assessments shall be levied against the lands and roads in the watershed in accordance with the revised Schedule of Assessment annexed hereto as Exhibit "A".
- IT IS ORDERED THAT:
The provisions for future maintenance of the said drainage works set out on Page 3 of the Report of August 22, 1994, be deleted from the Report and the following substituted therefore:
"The covered portion of the drainage works shall be maintained by the Township of Chatham at the expense of the lands and road as shown in the attached Revised Assessment Schedule under the heading 'Value of Benefit - Covered Drain' and in the same relative proportions.
The open portion of the drainage works shall be maintained by the Township of Chatham at the expense of all lands as shown in the attached Revised Assessment Schedule under the heading "Value of Benefit - Open Drain" and in the same relative proportions".
- IT IS ORDERED THAT:
There be no Order as to costs and all parties are responsible for their own costs.
Attention is drawn to s.73 of the Drainage Act, R.S.O. 1990, c. D.17.
Dated: April 18, 1995.
Bernard J. Goodal, Chairperson
IN THE MATTER OF an Appeal of L. & J. Arnold, J. Gonyou, D. & J. Crowe and J. Anderson from the Report of D. G. McGeorge, P. Eng., dated August 22, 1994 on the Modde Drain, in the Township of Chatham, in the County of Kent
REASONS FOR DECISION
This Appeal, launched by the Appellants, L. & J. Arnold, J. Gonyou, D. & J. Crowe and J. Anderson, pursuant to s. 54 (1) of the Drainage Act, R.S.O. 1990, c. D. 17 (the Act) was heard on April 4, 1995.
The proceeding was initiated by the Council of the Township of Chatham purportedly in response to a Petition of L. Arnold and J. Gonyou, pursuant to s. 4 (l)(a) of the Act.
The Appellants L. & J. Arnold and J. Gonyou are the owners of the N Lot 19 and N Lot 20, Con. 4, respectively, in the Gore o the Township of Chatham. The Appellants, D. & J. Crowe and J. Anderson, are the owners of the S Lot 19 and S Lot 20, Con. 4, respectively.
The Appellant Arnold became the owner of the N Lot 19, Con. 4 in 1970. Since he purchased the lands, he has continued to improve the subsurface drainage system by installing additional strings between the original laterals. There are now 50 laterals across the lands. He intends to install 40 more, making a total of 90 laterals. All of the laterals outlet into the Modde Drain.
His neighbor to the east, the Appellant John Gonyou, also has a substantial subsurface drainage system that outlets into the Modde Drain at the westerly limit of his lands. He is proposing to upgrade the system.
The Modde Drain is an Award Drain constructed under the Ditches and Water Courses Act pursuant to an Award of William Graham McGeorge, O.L.S. & C.E. dated November 9, 1923. The Drain has deteriorated. It is in need of constant repair and maintenance. It is too small to provide an outlet for the proposed improvement to the subsurface drainage of Arnold and Gonyou. Consequently, they have petitioned for a new drain to replace the old Award Drain.
There is considerable fall of the lands from the north to south. The Engineer has put it at 4 ft. (this is the fall in the North Otter Creek between the two Concession Roads). Mr. Crowe has put the fall at 7 ft. or greater. He has deduced this from the spot elevations shown on the base mapping for the area. The fall from east to west is in excess of 2 ft. across the northerly half of Lots 19 and 20, Con. 4. Therefore, generally speaking, drainage is from the north to the southwest. The surface water flow is creating a serious flooding problem on the lands of the two Appellants, Crowe and Anderson, the S ½ Lots 19 and 20, Con. 4.
At the on-site meeting numerous suggestions were made and a number of proposals were reviewed by the Engineer and the owners in attendance. Arnold and Gonyou were primarily interested in an outlet for their subsurface drainage system. Whereas, Crowe and Anderson, were primarily concerned about the surface flows inundating their lands during moderate and severe storm events. Therefore, the Engineer was faced with two problems; first, to provide an outlet for the subsurface drainage systems of Arnold and Gonyou; second, to intercept the surface flows from the north half of the lots and direct them to Otter Creek before they flooded the south half of the lots.
There appeared to be two practicable and cost beneficial solutions to the problem. First, dig a large open drain to cut off the surface flows from north to south and at the same time provide an outlet for the subsurface drainage system of Arnold and Gonyou. The evidence is not clear, but this appears to be the solution favoured by Crowe and Anderson. Second, construct a covered drain to provide an outlet for the subsurface drainage system of Arnold and Gonyou and a shallow open drain to intercept the surface flows. A third alternative, constructing a sufficiently large covered drain with surface water inlets although considered, was not seriously considered because of the high costs.
At the conclusion of the on-site meeting, the Engineer felt that all of the parties agreed to the second alternative. He therefore designed the appropriate drainage system and prepared and filed his Report.
The Report recommends, the construction of an open drain with a 3' bottom width, a depth of 3' and 1:1 sideslopes. The center line of the open drain coincides with the line between the N ½ and the S ½ of Lot 19 from its outlet in Otter Creek easterly across Lot 19 and across the W ½ of the N ½ Lot 20.
The Report further recommends the construction of a new covered drain housed in 900 feet of 18" diameter concrete tile and 1,065 feet of 16" diameter concrete tile constructed approximately 23' north of the center line of the open drain. The drainage system is to be called the Modde Drain. The estimated cost of constructing the open drain is $6,495.00 and of the covered drain is $25,050.00 for a total cost of $31,545.00 to serve a watershed of 200 ac.
The two northerly owners (Arnold and Gonyou), are completely satisfied with the system as designed. The two southerly owners (Crowe and Anderson), would have preferred to have a deep open drain rather than the shallow open drain combined with the covered drain; however, they are prepared to go along with the scheme as designed. The issue on Appeal is assessment.
Crowe and Anderson had appealed to the Court of Revision. The Court of Revision reduced each of their assessments by approximately $2,000.00. The Court added $2,025.00 to the assessment levied against the lands of Arnold and $2,000.00 to the assessment levied against the lands of Gonyou.
All of the Appellants now appeal the assessments levied against their lands to the Tribunal.
The Engineer in levying the assessments for the covered drain, used the same ratios as in the Award Drain. He levied assessment against the lands of the four Appellants as follows:
N ½ Lot 19, 47. 8 % of the estimated cost
$11,500.00
N ½ Lot 20, 22.6% of the estimated cost
5,435.00
S ½ Lot 19, 14.9 % of the estimated cost
3,585.00
S ½ Lot 20, 14.7 % of the estimated cost
3,530.00
Total
$24,050.00
He levied $1,000.00 against the road for a total of $25,050.00.
The cost of the open drain he levied entirely against the south half of the lots and the road; that is, $4,080.00 against the S ½ Lot 19 and $2,165.00 against the S ½ Lot 20 and $250.00 against the road for a total of $6,495.00.
The Engineer added that he had reviewed the percentages or ratios in the Award and in his opinion, the conditions are not any different now than they were then, and therefore saw no reason to deviate from the ratios as levied under the Award.
In his view, the open drain is solely a cutoff drain, and therefore, he levied all of the costs of the open drain against the south half of the lots.
Much of the evidence at the hearing revolved around who said what at the on-site meeting. Brian Anderson, who was the Superintendent of Works at the time, took minutes of the on-site meeting. After his evidence at the hearing, there continued to be doubt as to who said what at that meeting.
The evidence of Elliott Arnold is, that he is the owner of the N ½ Lot 19, Con. 4 - 100 acres. His subsurface drainage system outlets into the Award Drain. There is approximately 3' of fall over his lands from north to south and 1 ½ ' of fall across his lands from east to west. By working his lands from east to west and by means of surface furrows, much of his surface waters are directed to outlet into North Otter Creek.
In 1962 to 1963, Lester L. Arnold, the predecessor in title to the Appellant Arnold, had installed lateral tiles reducing the spacing to 40'. He put in 14 more laterals in 1994 reducing some of the spacing to 20'. He intends to put in 28 more laterals when the proposed works are constructed. In the last few years, he has repaired the Award a number of times. In his opinion, it is undersized and almost impossible to maintain. Something has to be done to provide a sufficient outlet for his subsurface drainage system. He prefers a covered drain as an outlet. If it was an open drain there would be 90 outlet pipes requiring maintenance each Spring. Open drains are susceptible to ice and snow buildup, plugging the drain and causing flooding. An open drain interferes with farming operations. He supports the assessments as levied by the Engineer. He added, that if Crow and Anderson are not satisfied, the open drain could be omitted and they could put up a berm to stop the surface flows. The waters ponding north of the berm would then be his problem which he would be prepared to handle.
John Gonyou is the owner of the N ½ Lot 20, Con. 4. All of his lands drain to the Modde Drain. He has a fairly extensive subsurface drainage system. However, he wants to add more tile. He makes the same observations with respect to the old Award Drain as did Mr. Arnold. He needs a better outlet for his subsurface drainage system. This can best be provided by a covered drain. He opposes an open drain on the same grounds as Mr. Arnold. He realizes that the situation is rather serious and something must be done. He, too, supports the assessments as levied by the Engineer.
Juliana Crowe, a co-owner of the S ½ Lot 19, Con. 4, described the serious flooding that they experience on their lands even after a moderate storm event. They have lived on their farm for 32 years. They have lost eight wheat crops in succession. It is her view, that the assessment should be levied as things stand in 1995 not as they were in 1923. The covered drain serves solely the lands in the north half of the lots. They are the only ones that will outlet waters into the drain and receive any benefit from it. There is no reason to assess the southerly lands for the covered drain. They have petitioned for drainage work along the 3-4 Concession Road. However, they had not petitioned Council for a solution to the problems of the surface flows onto their lands from the north.
The other owner, Donald Crowe, also gave evidence at the hearing. He was rather bitter about the amount of flooding that they are subject to from the surface flows from the lands to the north. He continued to press that he did not agree to the shallow open drain. He had always wanted a deep open drain to provide for both surface waters and for the subsurface drainage systems. It is a simpler and a less expensive solution. The Engineer had calculated the cost of constructing, maintaining and keeping in repair an open drain over a 70-year life of a covered drain in excess of $40,000.00. Mr. Crowe takes issue with that calculation.
Donald Anderson also gave evidence at the hearing. He is of the same view, that the owners of the southerly half of the lots should not pay anything towards the cost of construction of the covered drain. He added that he agreed to go along with the covered drain and the shallow ditch; however, after he has seen the costs, he would prefer to go to an open drain. There was some discussion whether or not he preferred an open drain on top of the tile. His statement was that he would prefer an open drain "over the tile". Clearly, the statement is ambiguous. It could be interpreted as an open drain over top of the tile or as an open drain in substitution for the tile.
In reply, Mr. McGeorge stated, that he opted for the covered drain and the shallow open drain primarily on cost considerations and the apparent concurrence of the owners at the on-site meeting. He justified assessing the south part of the lots for the construction of the covered drain, saying that well-drained lands create a natural reservoir for the water, thus diminishing the quantity flowing to the south. This is a benefit to the lands to the south. It is difficult to determine the quantity; however, he had used his best judgment to do so. In assessing the costs of the covered drain, he could find no reason to deviate from the ratios used in assessing the costs of the Award in 1923.
The maintenance provisions for the two elements of the drainage system in the future were raised as a collateral issue. The covered portion of the drain is to be maintained in the ratios set out in the maintenance clause. The open portion of the drain is to be maintained solely by the lands to the south; that is, the S ½ Lot 19 to pay two-thirds of the maintenance cost and the S ½ Lot 20 one-third of the maintenance cost. Mr. Anderson strenuously objected to these maintenance provisions. Mr. McGeorge justifies them by saying that it is common to maintain drainage works in the ratio of the assessment levied. That is, for the covered drain. The open drain is solely for the benefit of the downstream lands and therefore should be maintained in its entirety by them.
In her final submissions, Ms. Lorie Hodgson, Counsel for Anderson, put forward three possible dispositions of the issues before us. She suggested, a modification of the drainage works to provide for the construction of an open drain only to accommodate the subsurface drainage and an equitable re-apportionment of the assessments accordingly.
By her calculations, if the Engineer had used the length proportions rather than the dollar proportions in the Award, the ratios would have been different and more equitable for the southerly lands. They would still be out of proportion, however, closer to what they should be. She maintained that there is no benefit accruing to the southerly lands from the covered drain. The drain has been designed to provide for the subsurface flows from the 200 ac. in the two northerly halves of the lots. There is, therefore, no provision nor capacity for any waters from the southerly lands. There is no justification for assessing the southerly lands for the covered drain. Therefore, all of the costs of the covered drain should be borne by the northerly lands. The benefit, alleged to accrue to the southerly lands by the Engineer is really not there, since the crucial time is the Spring when the ground is frozen. Regardless of the capacity of the well-drained lands to soak up surface waters, it cannot do so because of the frost in the ground, and consequently, that benefit is of no or next to no value to the downstream lands.
We concur with the submissions of the Appellants Crowe and Anderson, that they should not be assessed for the construction of the covered drain. There are no provisions or capacity for outletting any of their waters into the drain. The only benefit, as maintained by the Engineer, is the ability of the intensely tiled northerly lands to retain more water and thus decreasing the flows to the south. Theoretically, this argument has some reason to it. Certainly, during the months when the ground is not frozen, there probably is added capacity in that soil to the north of the drain to retain more of the surface waters and consequently less water reaches the southerly lands. However, since the main problem arises in the Spring or during the late Winter when there is frost in the ground (particularly the loss of wheat crop) this advantage is of very marginal value. It seems to us, assessing the lands of the south for the covered drain cannot be justified. They cannot be assessed for outlet liability and we discount the dubious advantage that is alleged to accrue to the lands due to the capacity of the northerly lands to retain more of the surface waters because of the more intense tiling of the lands.
In justifying the assessment levied against the southerly lands for the construction of the covered drain, the Engineer relied on the assessment levied against them when the Award Drain was constructed. In his view, conditions have not changed and therefore those lands should be assessed as they were under the Award.
The abstract of title of Lot 19, Con. 4, shows that in 1921 the whole lot was owned by Gertrude M. Wenner. That year, she conveyed the north half of the lot to Joseph Modde and the south half of the lot to Peter Van Troost. Shortly thereafter, a requisition was filed with the Clerk of the Township to appoint an Engineer under the Ditches and Water Courses Act.
The Township appointed William Graham McGeorge, O.L.S. & C.E., who made the Award dated November 9, 1923. The Award originates on the line between the N ½ Lot 19 and N ½ Lot 20, Con. 4. It courses westerly along the southerly limit of the N ½ Lot 19, Con. 4, 1,957 ft. to outlet into Otter Creek which courses along the westerly limit of Lot 20, Con. 4. It is a covered drain housed in a 12" diameter tile.
On the basis of the history of the ownership and the date of construction of the Award Drain, it is reasonable to conclude that the Award Drain was constructed as a cut-off drain for the subsurface drainage system in Lot 19. The fall of the lands is from north to south. The subsurface drainage system for the lot would be in the north-south direction. Since the lot was in the hands of one owner, the outlet would be at the 3-4 Concession Road.
When the ownership of Lot 19 was divided, the subsurface drainage system in the north half continued to outlet through the subsurface drainage system in the south half. A requisition for an Award was filed and an Award made to construct the Modde Drain as an outlet for the subsurface drainage system of Modde and a consequent relief or cutoff of the waters from the subsurface drainage system in the north half outletting into the subsurface drainage system in the south half. In the circumstances, it was proper to assess both the north half and the south half of the lot. The north half for benefit and outlet and the south half relief from the burden of providing an outlet for the north half.
Regardless of the theory applied to levy an assessment against the south half when the Award was constructed, the conditions are entirely different now. As we have already said, there are no grounds for assessing the south half of the lots any of the costs of constructing the covered drain.
The primary purpose of the open drain is to intercept the waters by way of cut-off, take them to an outlet to stop the flooding on the southerly lands. The primary benefactors are the lands to the south. It is our view, however, that the open drain will also aid the northerly lands in a more efficient and direct removal of surface flows. Since the fall is basically from north to southwest, the waters at the easterly side of the lands will be picked up much quicker and much more efficiently and conveyed to Otter Creek. With the open drain there, surface flows may also be redirected to more efficiently drain those lands. For this reason, we are of the view, that a part of the costs of constructing the open drain should be assessed against the northerly lands.
An Order will therefore go:
(i) That assessments shall be levied against the lands and roads in the watershed in accordance with the revised Schedule of Assessment annexed hereto as Exhibit "A":
(ii) That the provisions for future maintenance of the said drainage works set out on Page 3 of the Report of August 22, 1994, be deleted from the Report and the following substituted therefore:
"The covered portion of the drainage works shall be maintained by the Township of Chatham at the expense of the lands and road as shown in the attached Revised Assessment Schedule under the heading 'Value of Benefit - Covered Drain' and in the same relative proportions.
The open portion of the drainage works shall be maintained by the Township of Chatham at the expense of all lands as shown in the attached Revised Assessment Schedule under the heading 'Value of Benefit - Open Drain' and in the same relative proportions".
There will be no Order as to costs, and all parties are responsible for their own costs.
Dated: June 8, 1995.
Warren Jenner, panel member
H.H. Todgham, P. Eng., Vice-Chairperson
Bernard J. Goodal, Chairperson