McBrayne Drain (Re), 1995 ONAFRAAT 8

ONTARIO DRAINAGE TRIBUNAL

APPEAL:

McBRAYNE DRAIN (RE) Township of Harwich Murray Hebblethwaite

McBRAYNE DRAIN (RE), 1995 ONAFRAAT 08

STATUTE:

Drainage Act

HEARING:

April 18, 1995

DATE OF DECISION:

May 4, 1995 for Order May 11, 1995 for Reasons

NEUTRAL CITATION:

1995 ONAFRAAT 08

TOWNSHIP OF HARWICH

McBRAYNE DRAIN

IN THE MATTER OF:

An Appeal of Murray Hebblethwaite from the Report of E. P. Dries, P. Eng., on the McBrayne Drain, dated August 30, 1994, in the Township of Harwich, in the County of Kent.

DECISION

This Appeal came before the Ontario Drainage Tribunal on April 18, 1995, at the Township of Harwich Council Chambers, 1000 Highway 40 South, 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, E.P. Dries, P. Eng., who prepared and presented the Report dated August 30, 1994; the Appellant, Murray Hebblethwaite and other assessed owners.

The Deputy-Clerk of the Township of Harwich, Nancy L. Rumble, acted as Clerk of the Tribunal.

On hearing the evidence, the submissions and reading the materials filed:

1. IT IS ORDERED THAT:

The appeal of the Appellant, Murray Hebblethwaite, be dismissed.

2. IT IS ORDERED THAT:

The lands of Ronald Van de Hogen, comprising the NE of the SE Lot 13, Con. 1, E.C.R., Roll #6-946 be assessed the sum of $450.00 as Special Benefit for the access culvert at Sta. 65 across the unopened road allowance between Con. 1 and Con. 2 E.C.R.

3. IT IS ORDERED THAT:

The lands of Paul Kluka comprising the SE and NW Lot 13, Con. 2, E.C.R., Roll #6-984 be assessed the sum of $200.00 as Special Benefit for the access culvert at Sta. 65 across the unopened road allowance between Con. 1 and 2 E.C.R.

4. IT IS ORDERED THAT:

The Special Benefit Assessment levied against Allison Line, Township of Harwich, be reduced by the sum of $650.00.

5. IT IS ORDERED THAT:

The maintenance provisions on page 6 of the Report be deleted and the following substituted therefor:

"After completion:

(a) The road culvert at Sta. 245 shall be maintained by the Township of Harwich at the expense of the road;

(b) The access culvert at Sta. 64 shall be maintained by the Township of Harwich in the following proportions:

(i) 75 % of the cost of maintenance and repair shall be assessed against the upstream lands and roads in the same proportion as the outlet assessment in the Schedule of Assessment;

(ii) 15 % shall be assessed against the lands of Ronald Van de Hogen comprising the NE of the SE, Lot 13, Con. 1, E.C.R., Roll #6-946;

(iii) 10 % shall be assessed against the lands of Paul Kluka comprising the SE and NW Lot 13, Con. 2, E.C.R., Roll #6-984."

(c) The remainder of the McBrayne Drain shall be maintained by the Township of Harwich at the expense of all the lands and roads assessed and in the same relative proportions.

For the purpose of maintenance, the amounts assessed as Special Benefit shall not be considered in determining the proportions at which the lands and roads shall be assessed.

6. IT IS ORDERED THAT:

The lot number in the Schedule of Allowances on page 4 of the Report, shall be changed from 12 to 13.

7. IT IS ORDERED THAT:

The Township of Harwich shall be awarded the sum of $150.00 as costs against the Appellant, Murray Hebblethwaite, which sum shall be applied to the cost of the hearing.

8. IT IS ORDERED THAT:

There be no other 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: May 4, 1995.

Bernard J. Goodal, Chairperson

REASONS FOR DECISION

This Appeal launched by the Appellant, Murray Hebblethwaite, pursuant to s. 54 (1) of the Drainage Act, R.S.O. 1990, c. D. 17 (the Act) was heard on April 18, 1995.

The proceeding was initiated by the Council of the Township of Harwich in response to a Petition of George Laidlaw, the Township of Harwich Road Superintendent, pursuant to s. 4(1)(c) of the Act.

Although the propriety or the sufficiency of the Petition is not an issue, the Petition, to a great extent, was prompted by almost 20 years of relentless pursuit by the Appellant of the Township. We do not intend to recite all of the unpleasant history; but, it is necessary to recite some it, not only to support the issues properly raised before us on the hearing of the Appeal, but as support for categorizing much of the evidence led at the hearing as irrelevant to the issue in Appeal.

The McBrayne Award Drain was constructed in 1904 or 1905, pursuant to an Award of James A. Bell dated June 21, 1904. The Award can be found at Tab 1 of Exhibit #3, of the Township of Harwich Document Brief. The drain originated at the intersection of Pook Road and 12-13 Sideroad - Allison Line. It coursed westerly along the northerly limit of the N Pt Lot 12, Con. 1, E.C .R., now owned by the Appellant Hebblethwaite. It crossed Allison Line and coursed northwesterly across the SE Lot 13 (lands now owned by Paul Kluka), across the unopened road allowance between Con. 1 & 2 E.C.R. and over the easterly part of Lot 13 (lands now owned by Ronald Van de Hogen) to outlet into the Nichol Drain.

The evidence of the Appellant is that the drain had been repaired in 1923. However, the evidence of the Engineer who has searched the Township records and made inquiries of the Township Administration, is that there is no evidence that the drain was ever repaired after it was constructed. In any event, Paul Kluka, whose father acquired the SE 1/2 Lot 13, Con. 2, E.C.R. in 1937, cannot remember the drain every coursing over the lands of which he is now the owner. He admits that there is a water run along that direction; however, there was never any open drain there. He has now run his main tile along that route to outlet into the Nichol Drain. There is very little doubt there was probably no evidence of the drain, nor was anyone interested in the drain until 1977.

In 1977, the Appellant Murray Hebblethwaite purchased the NE Pt Lot 12, Con. 1, E.C.R. As soon as he purchased the lands, he proceeded to improve the drainage by installing a systematic subsurface drainage system. He financed a part of the costs of the tile drainage system through an Application and a Grant of a tile loan. As a condition precedent to the granting of a tile loan, it is necessary to show that the proposed drainage system will have a sufficient outlet. It was at that time when Mr. Hebblethwaite indicated that there was an Award Drain and since his lands were part of the Award, he was entitled to outlet his subsurface drainage system into the Award Drain. The only portion of the Award Drain that could be seen was a culvert where the drain crossed the Allison Line. Mr. Hebblethwaite determined that the culvert was low enough to serve as an outlet for his drainage system; however, there was no outlet for the culvert at its downstream end; that is, on the north side of Allison Line. At that point, there were two possible routes for an outlet for the tile system. Mr. Hebblethwaite wanted to have the outlet along the route of the old Award; whereas, Mr. Kluka objected that there was no drain there, if in fact there was ever one there, it had been abandoned and that Hebblethwaite had no right to drain his lands across the Kluka lands. The alternate route, was to use the northerly Allison Line ditch, which outlets into the Nichol Drain, as the outlet for the Hebblethwaite tile. After discussions with the Township Administration and the tile drainage Inspector, it was decided, that the northerly roadside ditch of Allison Line would provide an outlet for the proposed subsurface drainage system of Hebblethwaite. It is not clear as to how much work had to he done on that roadside ditch to provide the outlet, however, it appears as though it was minimal and served the purpose for some five or six years when the Appellant Hebblethwaite decided to put in additional subsurface drainage on his lands. In 1981, he again applied for a tile loan to construct that system. The loan was approved, and the system was installed.

As time went by, the roadside ditch was silting in and was in need of a cleanout in order to continue to provide a sufficient outlet for Hebblethwaite subsurface drainage system. The Appellant gave notice to the Township that the ditch needs cleaning and that the Township should proceed to clean it. In his evidence, he stated, that when the arrangements were made in 1977 to use the roadside ditch for an outlet for his subsurface drainage system, he was led to believe, and he did believe, that the alternate route was being provided in lieu of the Award Drain and that the Township would maintain and repair the roadside ditch to provide a sufficient outlet for his tiles. There is no evidence, other than what the Appellant understood, as to what duty, if any, the Township assumed with respect to the maintenance of the roadside ditch as an outlet for the Appellant's tiles. Suffice it to say that the Council at the time balked at the request. It suffered the Appellant to do some cleaning of the ditch from time to time. However, it did not do any cleaning of the ditch itself.

We then enter a long period of controversy, threats, threatened court actions, notices, attendances at Council, dispute and civil proceeding and assault charges being laid back and forth between Kluka and the Appellant, of which we will say no more.

In the pursuit of his rights, the Appellant finally filed a Petition, although not very clear, which seems to request that the McBrayne Award Drain be brought under the provisions of the Act pursuant to s. 3(18) of the Act. Having received this Petition on November 7, 1991, Council considered the Petition and decided to proceed. They appointed an Engineer who held an on-site meeting on July 10, 1991. At the on-site meeting many issues regarding the drainage improvement for the Hebblethwaite lands were discussed. At the conclusion of the meeting, Mr. Hebblethwaite clearly indicated to the Engineer that he did not wish to pursue the matter any further under the provisions of the Act. No one else at the meeting expressed any desire to proceed any further either. Since Mr. Hebblethwaite in effect withdrew his name from the Petition, the costs incurred were assessed against his lands. The evidence seems to indicate that Mr. Hebblethwaite withdrew from the Petition because it was going to cost him money regardless of the alternative that would be adopted to provide a sufficient outlet for his tile. He once again resumed with vigour to pursue the Township to improve the outlet for his tiles. The Township Council and Administration continued to inform him that they could really do nothing for him. They urged him to take proceedings under the Act to get a recognized and a sufficient outlet for his tiling system. They continued to impress upon him, as they had done all along, that basically the Township had no control over the Award Drain. It is not a party to the Award except to the extent of the Allison Line which was party to the Award, it is therefore a private matter and they could not help him. They added, that if he proceeded under the Drainage Act by way of Petition, there is no doubt a proper and an efficient solution could be found for his problem.

The Appellant then threatened them with proceedings under s. 80 of the Act. He suggested the installation of an 8" diameter tile beneath the bottom of the Allison Line roadside ditch. Finally, on June 13, 1993, he went in with his own equipment and cleaned out a part of the roadside ditch and deposited the soil on the Kluka lands. It appears as though the Klukas were at church. When they returned, they found the Appellant digging in the roadside ditch and depositing the excavated material on their lands. Argument developed and finally physical contacts were made as a result of which one of the parties was assaulted and criminal proceedings were instituted. The Township immediately notified the Appellant to stop any work that he is doing on the roadside ditch and again reminded him that the proper procedure for improving the outlet is under the Act.

Seeing that there would be no end to the Appellant's pursuit, and because the roadside ditch was quite a bit deeper now and very near the travelled portion, it presented a hazard to the travelling public. As a result of the Appellant's excavation, a number of the hydro poles were beginning to lean and threaten to collapse onto the road, Council instructed the Road Superintendent, George Laidlaw, to Petition for drainage.

The Road Superintendent signed and filed a Petition for drainage on November 16, 1993. Council appointed an Engineer who held an on-site meeting on February I, 1994. All of the affected owners in the watershed were present at the meeting. The Engineer once again explained the procedure under the Act, reviewed the possible routes to provide an outlet, including the old Award Drain. The other two owners, Kluka and VandenHogen, had very little interest in the issue since basically it was a problem upstream of their lands. At the conclusion of the meeting, the Engineer recommended that the existing roadside ditch on the north side of Allison Line be considered as the most likely outlet and that the further investigation and design should proceed in that direction. The Engineer continued to keep the alternative of the Award Drain in mind. However, after field investigations were completed and the old Award thoroughly reviewed, it was found that even if the Award was maintained and repaired to the original depth, it would not provide a sufficient outlet for the Hebblethwaite tiling system. Furthermore, a course westerly along the northerly side of Allison Line is much shorter and much less expensive than to attempt to provide an outlet along the course of the old Award Drain.

The Report recommends, that in order to provide a sufficient outlet for the tiles of the Appellant and for Allison Line an open drain be constructed along the northerly Iimit of Allison Line (over private lands) originating at the intersection of Pook Road and Allison Line coursing westerly 350 m to outlet into the Nichol Drain. The culvert under Allison Line (which provides the outlet for the Appellant's tile) outlets into this drain at Sta. 245. The existing access culvert on the unopen road allowance (Con. 1 & 2 E.C.R.) shall be removed and that part of the old road ditch filled in and a new access culvert is to be installed at that point, same size but 10 m long rather than the 6 m long that is there now. The work is to be done under the Act. The drain is to be called the "McBrayne Drain". It serves a watershed of 15 ac. at an estimated cost $9,400.00.

The Engineer, in his usual concise manner, applying accepted principles of assessment, set out the particulars in Exhibit #4. Of the $9,400.00 of estimated cost, $6,300.00 has been assessed as a Special Benefit Assessment against the Township for Allison Line. The balance of $3,100.00 has been apportioned, 60% ($1,860.00) as Benefit Assessment and 40% ($1,240.00) as Outlet Assessment. Of this sum, he has assessed the sum of $930.00 by way of Benefit and the sum of $755 .00 by way of Outlet against the lands of the Appellant, comprising the NE Pt Lot 12, Con. 1 E.C.R. for an affected area of 10 ac (4 ha).

The balance of the $3,100.00 he assessed as Benefit and Outlet against Allison Line and Pook Road. He has not levied any assessment against the lands of Paul Kluka or Ronald Van de Hogen. They have each been given an allowance for the land taken for the drain in the sum of $1,175.00 and $240.00, respectively.

Much of the evidence of the Appellant consisted of the recital of his pursuit to have the Township maintain and repair the northerly Allison Line road ditch to provide an outlet for his tile. His evidence is that he was led to believe, and did believe, that in 1977 when he made his application for the first tile loan, the Township undertook to maintain the roadside ditch as a sufficient outlet for his tile system. This was done in lieu of maintaining the Award. And therefore, the Township was bound by what he believed to be an agreement to provide an outlet for his tile. To support this position, he relies primarily on the actions of the Township. There is nothing in writing to support the alleged agreement. There are only the inference from the actions of the Municipality. As the Appellant put it, "He was led to believe that".

He does not object to the outlet assessment levied against his lands. However, he is of the view that there should be no benefit assessment levied against his lands. He further contends that the lands of Kluka and Van de Hogen should be assessed. In his view, these lands get a cutoff benefit by the construction of the proposed drainage works and consequently should be assessed. Furthermore, it is his submission that both Kluka and Van de Hogen should be assessed part of the costs of constructing the access culvert over the unopened road allowance at Sta. 64. In support of the submissions, he points to the Report which was prepared by the same Engineer on the Nichol Drain, where the Sonneveld culvert was installed. He points out that Mr. Sonneveld was assessed 50% of the cost of the access culvert, and the rest of it was assessed against all upstream lands. He can see no reason why the same should not be done here. He then points to the Report prepared by the Engineer on the Polowick Drain, where his lands were assessed for cutoff. This was entirely a new drain coursing in the east-west direction, immediately south of the Appellant's lands. The fall in the lands is from the southeast to the northwest. Therefore, when the Polowick open drain was constructed, the Appellant's land received a benefit by way of cutoff of the surface waters.

We find no merit in the Appellant's objection to his Benefit Assessment. We have carefully reviewed the principles and the methodology applied by the Engineer and can find no fault with it. Therefore, the Appellant's appeal with respect to his assessment is dismissed.

Nor can we support his submission that the lands of Kluka and Van de Hogen should be assessed for cutoff benefit. The situation here is entirely different than that on the Polowick Drain. Here, the lands of Kluka and Van de Hogen lie north of on the other side of Allison Line. The road being raised considerably above the height of the lands acts as a dam to cut off the surface flows flowing naturally to the northwest. The only point at which the waters can get to the lands north of Allison Line is through the culvert at Sta. 245, which serves as an outlet for the Appellant's subsurface drainage system and in which a hole has been cut, probably by the Appellant, to inlet surface waters. Surface waters that can be inletted through the hole in this culvert, which is a 450 mm diameter, can readily be accommodated and carried away by the existing roadside ditch westerly to outlet into the Nichol Drain. Certainly, during the course of extreme storm events and when the drain is blocked with ice and snow, there is some overland flow across the Kluka lands along the course of the old Award. However, this will likely be the case even with the new drain and therefore there will be no cutoff of any added waters than there are now, when the proposed drainage works are constructed.

Therefore, there is no cutoff benefit accruing to the lands of Kluka and Van de Hogen. For this reason, the submission of the Appellant that those lands should be assessed with cutoff benefit cannot stand.

We do, however, feel that there is merit in the Appellant's submission that Kluka and Van de Hogen should be assessed for the access culvert at Sta. 65. If there had not been a road allowance at that point, the owner on the other side of the access culvert would have been assessed 50% of the cost of the culvert. The situation here is that the land on the other side of that access culvert is the unopened road allowance. It is not clear from the evidence, as a matter of fact, there is no evidence on the point, as to who installed the culvert that is there now. From what has been said, we would conclude that probably that culvert had been installed by the Township to provide access not to the unopened road allowance, but to provide access to the lands of Van de Hogen which would otherwise not have an access, lying east of the Nichol Drain and west of the unopened road allowance. The Township has requested that when the new drainage works are constructed, that this culvert be replaced with a new culvert of the same size but with proper end treatment. The cost of this work was estimated at approximately $3,000.00. All of this has been assessed as a Special Benefit Assessment against the Township as owner of Allison Line.

In our view, this is not fair to the taxpayers of the Township of Harwich. This is an unopened road allowance. The public as a whole has no right to pass over it, nor is there any roadway over it. It is alleged that it is now used primarily by Van de Hogen to access his lands which would otherwise have no access and from time to time by Kluka. It appears as though hunters go to the bush, which lies somewhat northwesterly across the road allowance and on the Van de Hogen and Kluka lands. Some of the other farmers northwest of the Allison Line also use it from time to time. However, the road allowance remains an unopened road allowance. It is perhaps imprudent for the Township, even though they do not encourage the use of his road, to suffer the use of that unopened road allowance by members of the public, which includes all of the landowners who abut on it. They are probably exposing themselves to liability. Even though the evidence on behalf of the Township seems to indicate that they want to have the culvert there for the purpose of the road allowance, it seems quite clear and unmistakable that the basic purpose for constructing this culvert is to provide an access to Van de Hogen lands. That being the case, in our view, the lands of Van de Hogen should contribute to the cost of that culvert.

Kluka is in a somewhat different position. If the access culvert is not installed, he has other access to his lands from Allison Line and from the Centre Line Road. In his evidence, Mr. Kluka stated that he does not care whether the culvert is put in or not. However, if in fact it is installed, whenever it is convenient for him to use it, he will use it. In our view, that being the case, a benefit accrues to him and consequently his lands should also be assessed for the cost of constructing the culvert.

As we have already stated, in the normal circumstances, the owners of the land on the other side of the culvert would be paying 50% of costs of the access culvert. That is, the road allowance. However, because the culvert is primarily constructed to provide access to Van de Hogen and coincidentally provide a convenient access for Kluka; we would assess the lands of Van de Hogen the sum of $450.00 as a Special Benefit for the access culvert at Sta. 65, the lands of Kluka the sum of $200. 00 as a Special Benefit for the access culvert at Sta. 65 and the balance of the costs of the access culvert at Sta. 65 against the Township for Allison Line.

The Special Benefit Assessment which we have levied against the lands of Van de Hogen and Kluka for the access culvert at Sta. 65 shall be applied to reduce the Special Benefit Assessment levied against the Township of Harwich as owner of Allison Line.

The Engineer made certain provisions for the future maintenance of this Drain on page 6 of the Report. The first paragraph of the Maintenance Provisions overlaps and is inconsistent with the second paragraph. Further, the provisions for the maintenance of the access culvert were modified by the Court of Revision, even though they have no authority to do so. In order to clarify the future maintenance provisions and so that they are consistent with the changes that we have made in the assessment levied against the lands in the watershed, an Order will go deleting the provisions for future maintenance on page 6 of the Report and substituting the following therefor:

"After completion;

(a) The road culvert at Sta. 245 shall be maintained by the Township of Harwich at the expense of the road;

(b) The access culvert at Sta. 64 shall be maintained by the Township of Harwich in the following proportions:

(i) 75 % of the cost of maintenance and repair shall be assessed against the upstream lands and roads in the same proportion as the outlet assessment in the Schedule of Assessment;

(ii) 15% shall be assessed against the lands of Ronald Van De Hogen comprising the NE % of the SE%, Lot 13, Con. 1, E.C.R., Roll #6-946;

(iii) 10% shall be assessed against the lands of Paul Kluka comprising the SE and NW Lot 13, Con. 2, E.C.R., Roll #6-984".

(c) The remainder of the McBrayne Drain shall be maintained by the Township of Harwich at the expense of all the lands and roads assessed and in the same relative proportions.

For the purpose of maintenance, the amounts assessed as Special Benefit shall not be considered in determining the proportions at which the lands and roads shall be assessed.”

One of the members of the Tribunal noted that there is an error on page 4 of the Report. The lot referred to in the Schedule of Allowances is shown as Lot 12. This should be Lot 13. The Report will therefore be amended to substitute 13 for 12 on page 4 of the Report under the "Schedule of Allowances".

For over a decade and a half, the Appellant has persevered in his vigorous pursuit of an alleged right to outlet his waters into the Old Award. In his evidence, which we accept, Mr. Kluka testified that in 1937, when his father purchased the lands, there was no evidence of the Old Award except the culvert under Allison Line. As a matter of fact, no one had mentioned the Award until 1977 when the Appellant needed an outlet for his subsurface drainage system. On the basis of this evidence, it is clear. that the Old Award had been abandoned. Even if it had not abandoned the evidence of the Engineer is that it did not have sufficient depth to accommodate the Appellant's tile. Therefore, even if the right to drain into it existed, restoring it to its original grade would serve no useful purpose in solving the Appellant's problem.

In 1977 when the Township gratuitously agreed to make available the Allison Line roadside ditch as an outlet for the Appellant's tiles would tend to indicate that this was in lieu of any rights that the Appellant may have had to outlet into the Old Award. There is no evidence that the Municipality committed itself to maintain the roadside ditch as an outlet for the Appellant's tile. Furthermore, it was gratuitous and therefore in law unenforceable. After failing to coerce the Township into maintaining the roadside ditch, the Appellant took matters into his own hands to clean it out. At that point the situation got out of hand with the consequent laying of criminal charges.

The Appellant then filed a Petition. However, after finding that it was going to cost him money, withdrew from it. He continued to harass the Township to do something. The Township finally succumbed and filed a Petition. The assessments levied against the lands of the Appellant for the Benefit and Outlet that is being provided for him are most reasonable. Out of the total cost of $9,400.00, the Appellant has been assessed the sum of $1,685.00, approximately one-sixth of the total cost. Keeping in mind that the primary purpose and probably the only purpose of these works is to provide an outlet for the Appellant's lands, in the circumstances, it is our view that not only is the appeal of the Appellant frivolous, it borders on the vexatious. For this reason, an Order will go awarding costs to the Township of Harwich in the sum of $150.00 against the Appellant, Murray Hebblethwaite, which sum shall be applied to the cost of the hearing. Even after this award of costs, the greater burden of the cost of this hearing will be borne by the Township of Harwich (the taxpayers of the Township), since their share of the costs of these works is $7,715.00.

There will be no other Order as to costs, and all parties are responsible for their own costs.

Dated: May 11, 1995.

H.H. Todgham, P. Eng., Vice-Chairperson

Judy Clark, panel member

Bernard J. Goodal, Chairperson