Ruth McFeeters v. Township of Mariposa, 1996 ONAFRAAT 25

McFEETERS DRAINAGE WORKS (RE)

Township of Mariposa

Ruth McFeeters

McFEETERS DRAINAGE WORKS (RE), 1996 ONAFRAAT 25

Drainage Act

November 26, 1996

DATE OF DECISION:

December 9, 1996

1996 ONAFRAAT 25

McFEETERS DRAINAGE WORKS

An Appeal to the Ontario Drainage Tribunal by Ruth McFeeters under Section 45(2) of the Drainage Act from the failure of Council to adopt the report of the engineer concerning the McFEETERS DRAINAGE WORKS, TOWNSHIP OF MARIPOSA.

Before:

Mr. Vernon Spencer, Chair; Mr. Andrew Osyany, Vice-Chair; Mr. Herb Todgham, Vice-Chair.

Appearances:

Mr. William Turville, counsel for the appellant Ruth McFeeters.

Mr. Dale McFeeters, on behalf of the appellant Ruth McFeeters.

Mr. Steve Karpazis, Reeve, for the respondent the Township of Mariposa.

Mr. Tom Pridham, P. Eng., the engineer who prepared the report for the proposed McFeeters Drainage Works.

DECISION OF THE TRIBUNAL

This appeal was heard in the Town Hall of the Township of Mariposa at Oakwood, Ontario on November 26, 1996. Mrs. Sandra Lloyd, Clerk of the Township of Mariposa (the Township), performed the duties of the Clerk of the Ontario Drainage Tribunal (the Tribunal).

Ruth and Dale Mcfeeters appealed to the Tribunal under Section 45(2) of the Drainage Act from the failure of the Council of the Township to adopt the June 1996 report of the engineer concerning the McFeeters Drainage Works.

Section 45(2) of the Act is as follows:

45(2) Where a report is not adopted by council, any petitioner may appeal to the Tribunal or, where lands used for agricultural purposes are included in the area to be drained, the Minister may refer the matter to the Tribunal. R.S.O. 1980, c. 126, s. 45.

The Background

After a decision of the Tribunal dated June 8, 1995, the Council of the Township appointed Mr. Tom Pridham, P. Eng., of R. J. Burnside & Associates Ltd., as the engineer to respond to the petition of Ruth McFeeters pursuant to Section 8(1) of the Drainage Act. A site meeting was held on September 28, 1995 with most of the owners in the watershed, one member of Council and the Drainage Superintendent in attendance with the engineer. The concerns raised at the site meeting were:

1/ The pasture section of the McFeeters lot needed improved drainage.

2/ two tile outlets from the Van Schaik lot outlet onto the surface of the ground then run through the northern portion of the Mcfeeters property.

A report, dated June 21, 1996, was prepared and filed with the Township. The report provides for the installation of 665 meters (2,182 feet) of tile drain and 160 meters (525 feet) of open drain improvements along with associated appurtenances. The tile sizes are 450 mm (18 inch), 400 mm (16 inch) and 350 mm (14 inch). The estimated cost of the work is $40,000.00 and it is proposed to be assessed as $30,000.00 benefit and benefit by cut off and $10,000.00 as outlet liability.

The area requiring drainage was determined by the engineer as part of Lot 1, Concession 13, comprising roughly 33.5 hectares. This entire area is owned by Ruth McFeeters and, therefore, in the opinion of the engineer, the petition complied with Section 4(1) (a) of the Act.

A meeting to consider the report was held on July 18, 1996. At the completion of the meeting to consider the report, Mrs. McFeeters left her name on the petition. The Council has not proceeded to adopt the report by by-law, and Mrs. McFeeters has appealed this decision of Council to the Tribunal.

The Issue

The issue before the Tribunal is whether or not the Council of the Township should be ordered to proceed with adoption of the June 1996 report of the engineer on the McFeeters Drainage Works.

The Evidence and the Findings

Mr. Steve Karpazis, Reeve of the Township, told the Tribunal that the Council is not against drainage. He said that if the current proposal had been presented as a mutual agreement or requisition drain rather than a petition drain, the Council would have proceeded. He said that the Council disputes the size of the area requiring drainage and the watershed. He said, based on the evidence presented to the Council by the landowners, the watershed shown in the report is larger than it should be, and the water runs are not properly shown. For these reasons the Council has not proceeded to adopt the report. He said that the Council was aware of the provisions of Section 45(2) and decided that, if the project was to proceed, it must be as a result of a decision of the Tribunal since, in the opinion of the Council, the engineer's report is flawed. Mr. Karpazis told the Tribunal that the Council is concerned about the Act and has asked the local Member of the Legislative Assembly to consider reviewing the Act and has also asked the rural municipalities to support its position that the Act requires amendments. He said that the Council is reviewing the drainage policies in the municipality and intends to make changes to these policies, but the timing of this hearing did not allow the Council to be in the position of telling the Tribunal what the new policies are.

Mr. Randy Love, an assessed ratepayer, filed several photos of the area with the Tribunal. These photos show the 1996 crop that was grown in part of the area the engineer says requires drainage. They also show a wet area that was used as pasture, and Mr. Love said that the ten-acre field kept ten head of cattle in pasture all summer. Mr. Love said that, in his opinion, the area is productive and in crop except for the ten acres. He said he was concerned that $40,000.00 is proposed to be spent on providing an outlet for this ten acres, and this amount of money could not be recovered from the production on this land. He also said he was concerned about the effect of the drain on his water supply. Mr. Love told the Tribunal that his land is "sharp" and naturally drains quickly as soon as the frost thaws in the spring. He said he is concerned that draining this area may leave his land subject to droughts. He also told the Tribunal that there is a considerable roll on the land in this area.

In response to questions from the Tribunal, Mr. Love said that water does not flow off his property, but it lies on the land and soaks in. He said that the engineer's report shows fairly closely the height of land on his farm.

Mrs. Mary Anne Knight, an assessed ratepayer, told the Tribunal that her only concern with the project was the possibility that it may interfere with the quantity of water in her well. She said that she has a drilled well but she was not sure how deep it was. She has the papers telling how deep the well is at home.

Mr. Ralph Holder, an assessed ratepayer, told the Tribunal that he is the former owner of the McFeeters property. He said that he farmed the property himself for 37 years and with his father for 10 years before that. According to Mr. Holder this farm is an early farm that dries quickly once the frost is thawed. There are a few wet spots on the farm, all smaller than an acre, except the nine acres or so in the pasture field. This field does not dry. He said that the last time it was worked and seeded was in 1958. Mr. Holder expressed concern that $40,000.00 is proposed to be spent to drain this field. He said that, in his opinion, the field would not produce enough to recover this cost.

In response to questions, Mr. Holder told the Tribunal that the ditches on the Van Schaik property were installed by the previous owner in the 1960s. He said that his fields were wet for some time after the ditches and tiles were constructed, but after about five years, he no longer noticed a problem. He said that he did not know how much tile drainage was installed on the Van Schaik land.

Mr. Holder said that the engineer's report approximately showed the height of land on his property. He said that water does not flow from the McFeeters farm onto his land. He said that if you put a piece of paper on the water it would move very slowly.

Mr. John Kuntze, P. Eng., told the Tribunal that for the past several years, he was the drainage superintendent for the Township. In his role as superintendent, he was asked by Mr. McFeeters for advice on how to obtain an outlet for this property. Mr. Kuntze filed with the Tribunal a letter to the Township outlining three options that he had discussed with Mr. McFeeters. These options were:

1/ Construct a drain at his own cost outletting in a southerly direction.

2/ Construct a mutual agreement drain.

3/ Petition for a drain under the Act.

Mr. Kuntze told the Tribunal that he has read Mr. Pridham's report and, in his opinion as a practicing engineer:

the report is in order,
the proposal will solve the problems that McFeeters has encountered, and
he would have designed a similar drain.

Mr. Kuntze told the Tribunal that an engineer designs a drain for the watershed area, not just the area requiring drainage. The reason for this is that the drain needs to accommodate the water that will flow to it from the entire drainage area, not just the water from the area that requires drainage.

When asked by Mr. Karpazis whether he agreed that water from the upper part of this watershed does not flow onto the McFeeters property, Mr. Kuntze stated emphatically that he disagrees with that statement.

Mr. Love questioned Mr. Kuntze on the possibility of a less expensive outlet for the area requiring drainage using an open ditch. Mr. Kuntze responded that he would not consider an open ditch following the proposed route, as that would divide the fields on the McFeeters property and not be a reasonable solution. Mr. Kuntze said there was the possibility of an open ditch across the Holder property to the county road and then parallel to the county road to the outlet creek but this may cost as much to build as the tile when you consider the cost of a culvert crossing on the Holder property and the value of the land taken for constructing the open ditch. Mr. Holder stated he was not in favour of an open ditch.

Mr. Dale McFeeters spoke on behalf of the owner, Mrs. Ruth McFeeters. Mr. McFeeters told the Tribunal that she has owned this property since 1992. He said that in two of the past four years, the land was flooded. This past summer, the water that ran from the Van Schaik property across the McFeeters property did not dry, to the best of his knowledge. He said that the water from the Van Schaik property does run all the way across this farm.

Mr. McFeeters told the Tribunal that the reason for asking for a petition drain was:

1/ to build a drainage system to serve the area and

2/ to obtain assurance for future maintenance.

He said that he has faith in the Act, that the future of the drain will be secure and that a workable project will be built for the money spent.

The Tribunal examined all of the evidence and made the following findings.

The Tribunal is at a loss to understand the objections of Council to a petition drain, while at the same time it is prepared to support a requisition drain. The difference is simply on procedures to follow not in the physical result. Mr. Karpazis was either unable or unwilling to explain Council's position on this matter despite probing questions from the Tribunal.

Mr. Karpazis offered two reasons for Council's decision not to adopt the report. First, in the opinion of Council, the area requiring drainage is much smaller than determined by the engineer, and second, the report is flawed in that water from the upper watershed does not flow to the lower area of the watershed.

The Tribunal did not understand the significance of the argument on the area requiring drainage. If the Council felt the area was larger than the area determined by the engineer, there is a possibility that the petition was not valid. In this case, the entire area found by the engineer to require drainage is owned by Ruth McFeeters. She has signed the petition. The Council feels that the area is smaller than that determined by the engineer. This would have no effect on the validity of the petition since the area is still all owned by Ruth McFeeters.

In the opinion of the Tribunal, there appears to be confusion on the use made of the term "area requiring drainage". In order for a petition of landowners to be valid it must contain the signatures of the majority of the owners in the area requiring drainage as determined by the engineer, or the owners of 60% of the land in the area requiring drainage as determined by the engineer. Section 4 of the Act specifies the signatures required for other valid petitions. Once this area is determined by the engineer and the petition is determined to be valid by the engineer, the only other function the "area requiring drainage" serves is to determine the upstream end of the proposed work. It has long been established that, in most situations, the engineer cannot go upstream of the area requiring drainage to provide drainage improvements. It is also long established that the determination of the area requiring drainage, and the validity of the petition is the responsibility of the engineer and not the Council. The Tribunal agrees with Mr. Kuntze's statement that, once the petition is determined to be valid, the engineer then has to design a solution to the problem that will service the watershed area - not just the area that requires drainage. To size a drain without regard for the total area that contributes to the flow would be inappropriate.

In this case, the Council has concerns about the definition of the area requiring drainage. The Council asked its engineer for additional information to clarify the situation and was told that the engineer stood by his findings as set out in the report. Council, rather than seeking additional advice or opinions, deferred any decision on the report, recognizing that the petitioner could appeal to the Tribunal if Council did nothing. The appeal was filed, just as the Council expected, and the decision to proceed or not has been transferred from the Council to the Tribunal.

The second issue raised by the Council is that the report is flawed. Mr. Karpazis told the Tribunal that, in the opinion of the Council, the engineer relied on the advice received from Mr. McFeeters rather than on his own judgement in determining the drain should be a tile drain and in determining the flow of water on the McFeeters land. Mr. Karpazis said that the other owners in the watershed had told the Council that water does not flow from their lands to the McFeeters property. The Council accepts the opinion of these owners and therefore considers that the report is flawed because it indicates that water does flow. It appears to the Tribunal that there is a misconception about the flow of this water, and that misconception is best illustrated by the evidence of Mr. Holder. Mr. Holder said that water does not flow from the McFeeters property onto his property. He said, "You could put a piece of paper on the water and it would move slowly". It appears to the Tribunal that Mr. Holder thinks the water has to run with some velocity onto his property before it can be considered to "flow". The function of the proposed drain is to provide an outlet for the water that will reach it. Whether that water flows with velocity or migrates through the soil or across the land slowly is not the question. The question is, how large does the drain have to be to accommodate the water when it does get there? Since the McFeeters property is downhill from the Van Schaik and Love properties, it follows that water from these properties must flow onto the McFeeters property at some time, and there is evidence that this does, in fact, happen. Therefore, the tile must provide capacity for that water.

Mr. Karpazis, Mr. Love and Mr. Holder all questioned the cost-benefit of the proposal. All questioned whether the cost could be recovered from the increased production on the ten acres of pasture on the McFeeters land that will be improved by the work. Mr. Kuntze told the Tribunal that the waters collected on the Van Schaik property that flow across the McFeeters property will be provided with a legal outlet once this water reaches the drain. It is long established in Ontario that an owner cannot improve his land by collecting the water that falls on it, concentrating that water in a ditch or tile and discharging it to the detriment of a lower landowner. The owner of lower land is not subservient to the owner of higher land. The owner of the higher land is required to take the collected water to a sufficient outlet, and if he does not, he is liable for the damages that result. Owners of lower land can block this flow, even though the result is flooding of the higher land. This principle is the foundation of the assessment for outlet liability in the Act.

In this case, the Tribunal recognizes a larger benefit area than the pasture field of McFeeters. Mr. Van Schaik will gain security for the outlet of his tile system. The Tribunal was told this system comprises some 12,500 feet of tile drainage. With no legal outlet, the continued existence of this system and the associated improvement in crop yield it produces for Mr. Van Schaik is in jeopardy. Since no evidence was brought to the Tribunal on the issue of cost vs benefit, the Tribunal cannot, at this time, make a finding on this question. However, the Tribunal is of the opinion that the project proposal is worthy of further consideration by the Council and the property owners.

The Tribunal recognizes that Council has some concerns about the provisions of the Act, however, in the opinion of the Tribunal, the Council has an obligation to deal with the drainage problems that are in progress while it attempts to have the Act revised and while it reviews the Township's drainage policies.

The evidence of the two engineers who testified was that the report is appropriate for the affected lands. The Tribunal reviewed the report and could not find any evidence of a flaw in the report or an area where the requirements of a report as set out in the Act have not been met. In the opinion of the Tribunal, the project proposal is worthy of further consideration.

For these reasons, the Tribunal decided that the report should be adopted and the process of the Act be allowed to flow.

In the opinion of the Tribunal, the cause of this hearing was the general philosophical approach the Council took to this drainage works. The Tribunal agrees that the Council has an obligation to review a report and, if it finds a problem with the report, the Council should seek clarification. It did that in this case and sought clarification from the engineer on the question of the area requiring drainage. Council received the opinion of the engineer and still did not agree with the engineer, but rather than seeking an alternative opinion from another expert, the Council merely deferred any decision on the project and forced the appellant to seek this hearing. In the opinion of the Tribunal, the Council acted in an irresponsible manner in that it took no steps to deal with the issues about the report that it was raising. The end result was this hearing before the Tribunal at a substantial cost to the Township, Mrs. McFeeters and the Province of Ontario. In the opinion of the Tribunal, the Council must accept the consequences of its actions.

For this reason, the Tribunal directs that the Township shall pay from its general revenues:

1/ All the Township costs for the hearing, including the cost of Mr. Pridham, both fees and expenses.

2/ Mrs. McFeeters' cost of the hearing, which the Tribunal fixes at $1,200.00.

Decision and Reasons

After careful examination of the evidence before it, the Tribunal decided to order the Township to adopt the June 1996 report of R. J. Burnside & Associates Limited for the McFeeters Drainage Works. The report is to be adopted at the next regular scheduled meeting of Council following the date of this decision. The Court of Revision is to be set for a date not longer than 30 days from the date of adoption.

The reasons for this decision are:

1/ In the opinion of the two engineers who testified, the report is appropriate for the affected lands.

2/ The Tribunal reviewed the report and could not find any evidence of a flaw in the report or an area where the requirements of a report as set out in the Act have not been met.

3/ In the opinion of the Tribunal, the project proposal is worthy of further consideration by the affected landowners.

The direct cost to the Province for this hearing is in the order of $2,500.00. The Tribunal considered awarding costs against the Township in favour of the Province, but, while not understanding the position that the Council took on this issue, the Tribunal was convinced that the Council did not force this hearing out of malicious intent or frivolity. Therefore, no costs will be awarded to the Province for this hearing.

ORDER OF THE TRIBUNAL

After consideration of the evidence, the Tribunal orders that:

1/ The report dated June 1996 on the McFeeters Drainage Works is to be adopted by the Council of the Township at the next regular scheduled meeting of Council following the date of this decision.

2/ The Court of Revision is to be set for a date not longer than 30 days from the date of adoption.

3/ All the Township costs for this hearing, including the cost of Mr. Pridham's fees and expenses, are to be paid by the Council of the Township from the general funds of the Township.

4/ Mrs. McFeeters’ cost of the hearing, which the Tribunal fixes at $1200.00, is to be paid by the Council of the Township to Mrs. Ruth McFeeters from the general funds of the Township, and it is to be delivered to Mrs. McFeeters within 45 days of the date of this decision.

5/ None of the cost of this hearing may be charged to the drainage works.

Dated at Chatsworth, Ontario, this 9th day of December 1996.