ONTARIO

SUPERIOR COURT OF JUSTICE

IN THE COURT OF THE DRAINAGE REFEREE

Fullarton v. Balfour (Township)

1994 ONDR 2

DATE OF DECISION:

1994-09-29

1994-02

STATUTE:

Drainage Act

HEARING:

BETWEEN:

THE CORPORATION OF THE TOWNSHIP OF FULLARTON

APPLICANT

AND

JEFFREY BALFOUR

RESPONDENT

ORDER

This Motion, made by the Appellant, for an Order pursuant to Section 66(1) of the Drainage Act, R.S.O. 1990, c.D.17 with respect to drainage of lands owned by the Respondent at Lot 24, Concession 9, in the Township of Fullarton, in the County of Perth to the Main Drain of the Harris Drain, came before me this day at the Court House, 1 Huron Street, Stratford, Ontario.

ON READING the application of the Appellant and the Affidavits of Donald Feeney and Jeffrey Balfour, filed, and the Minutes of Settlement entered into between the Appellant and the Respondent, and upon hearing the submissions of Counsel for the Appellant and Counsel for the Respondent:

1. IT IS ORDERED that By-law No. 157-1986 of the Appellant approving the Harris Drain be amended to provide for the attachment by the Respondent to catch basin 2+313 on the northern extension of the Main Drain to the southerly limit of the lands of the Respondent, in order to drain the Respondent's lands lying immediately south of the northerly limit of his lands and east of the house situate on his lands.

2. IT IS ORDERED that said By-law No. 157-1986 of the Appellant be amended to change the maintenance schedule for the Harris Drain so that the Main Drain include approximately five acres of land of the Respondent added to the Main Drain watershed, and to delete such acreage from the Branch A watershed.

3. IT IS ORDERED that the Respondent pay to the Appellant forthwith compensation in the amount of $2,500.00.

4. IT IS ORDERED that the Respondent pay to the Township the Engineer's costs of preparing the amended Maintenance Schedule referred to in paragraph 2 hereof.

5. IT IS ORDERED that the rights of James Miller as owner of Lot 25, Concession 8 in the Township of Fullarton are not to be prejudiced by the making of this Order.

6. IT IS ORDERED that any dispute relating to the implementation of the other provisions of this Order, or in relation to assessments in the maintenance schedule as set forth above, be referred back to the Drainage Referee.

There is to be no Order as to the costs of these proceedings.

Signed O'Brien

MINUTES OF SETTLEMENT

The parties agree to the settlement of all claims made in these proceedings on the following basis:

1. The By-law No. 157-1986 approving the Harris Drain be amended to provide for the attachment by Balfour to catch basin 2+313 on the northern extension of the Main Drain to the southerly limit of Balfour's lands, to drain Balfour's lands lying immediately south of the northerly limit of his lands and east of the house situated on the Balfour lands.

2. That the By-law be further amended to change the maintenance schedule for the Main Drain to include the approximately 5 acres of Balfour land added to the Main Drain watershed, and to delete such acreage from the Branch A watershed.

3. Balfour is to pay to the Township compensation in the amount of $2,500.00 forthwith.

4. Balfour to pay the engineer's cost of preparing the amended maintenance schedule mentioned in Paragraph 2.

5. This agreement is without prejudice to any rights of James Miller as owner of Lot 25, Concession 8.

6. That there be no order as to the costs of these proceedings.

7. That any dispute relating to the implementation of the foregoing or assessments in the maintenance schedule, be referred back to the Drainage Referee.

Dated at Stratford, this 29th day of September, 1994.

Perry C. Hill

Solicitor for the Appellant

John M. Skinner

Solicitor for the Respondent