DATE: 20051101

DOCKET: C41470

COURT OF APPEAL FOR ONTARIO

DOHERTY, FELDMAN and LANG JJ.A.

B E T W E E N :

GILBERT MEYER

Donald Good for the appellant

Appellant

• and -

DONALD MYLES MCLENNAN AND CYNTHIA ANNE MCLENNAN

Tracy Lyle for the respondents

Respondent(s)

Heard: October 25, 2005

On appeal from the judgment of Justice Gerald R. Morin of the Superior Court of Justice dated February 5, 2004.

BY THE COURT:

[1] This is an appeal from the judgment of Justice Morin that awarded the respondents damages of $1,375.65 and ordered the appellant to return his property to its pre-existing condition.

[2] The appellant blocked a channel that ran between his property and the respondents’, causing water to back up on the respondents’ property. The respondents brought an action to require the appellant to remove the barrier blocking the channel and restore the channel to its pre-existing condition.

[3] It is common ground that, while the appellant may be entitled to block surface water drainage from the respondents’ property, he is not entitled to block a natural watercourse running from the respondent’s property onto his.

[4] Accordingly, the evidence at trial focussed on whether the water flowing from the respondents’ land over the appellant’s land was surface water or a natural watercourse.

[5] In determining that the water flowed through a natural watercourse, the appellant argues that the trial judge made two errors; first, in finding that the flow of water in this case met the definition of a natural watercourse when, in part, the watercourse was artificially made; and second, in finding that the watercourse lost its character as a watercourse when it changed into flooded lands further north on the appellant’s property.

[6] In determining that the flow of water was a natural watercourse, and not a flow of surface water, the trial judge referenced the requirements for a natural watercourse: a definite channel with banks or sides with a bottom or bed where water runs seasonally or all year round. For this principle, the trial judge relied on an extract from Corpus Juris Secundum, (Brooklyn: American Law Book, 2005) Vol. 93. That extract continued to say, “a natural watercourse does not lose its character as such by the fact that a part of its channel has been artificially created, and it is not necessary that a watercourse should originate exclusively as a work of nature.”

[7] Applying that law, the trial judge was satisfied on the evidence, including the expert evidence, that the channel in question was a defined channel running from the respondents’ land onto the appellant’s and that it had been “partially augmented by the hand of man since 1926” that “enhanced and deepened” the channel over a “relatively short distance.” Moreover, the trial judge found that “generally the channel running across the properties … has defined banks and a bottom or bed and has carried water in it on a permanent, in the sense of habitually periodic, basis for centuries.”

[8] We see no palpable and overriding error that would permit us to interfere with these findings, which were supported by the evidence, including the expert evidence.

[9] On the second issue, the appellant argues that the trial judge erred in misconstruing the evidence of the appellant’s expert and finding a continuous watercourse over the appellant’s property. He argues that his expert testified that downstream on the appellant’s land, immediately north of the property line, the watercourse ended and became merely a collection of surface water.

[10] This argument about the character of the water at or near the property line appears not to have been raised at trial. The respondents’ expert was not cross-examined about the state of the watercourse after it passed onto the appellant’s land. Indeed, at trial, the focus of the evidence was on the nature of the water on the respondents’ land, although the respondents’ expert also gave evidence that the channel immediately adjacent to the property line was well defined on both sides of the property line. This appears evident from the photographs entered at trial.

[11] The dispute at trial focused on certain artificial changes in the watercourse at or near the property line. In so far as the evidence addressed the watercourse as it moved across the appellant’s property, it referred to a watercourse with ever increasing definition and higher banks as it approached the Madawaska River. Against that evidence, the appellant asks this court to isolate one of the many satellite photographs produced at trial and draw an entirely different conclusion.

[12] We are satisfied that on the trial judge’s consideration of the whole of the evidence there was ample support for the finding that the channel was particularly well defined, both at and immediately after the boundary and was a natural watercourse at the point where the appellant blocked its flow.

[13] For these reasons, the appeal is dismissed. The respondents are entitled to their costs fixed at $10,079.03, inclusive of disbursements and GST.

RELEASED: D.D.

November 1, 2005

“D.H. Doherty J.A.”

“K.N. Feldman J.A.”

“S.E. Lang J.A.”