2 total
Appeal allowed; artificial alteration of driveway drainage causing flooding to neighbour's property constitutes actionable nuisance.
The appellants appealed a Small Claims Court decision dismissing their claim for damages caused by storm water flowing from the respondent's property.
The respondent had regraded and repaved his driveway, altering the natural drainage and causing water to flow into the appellants' basement window wells.
The Divisional Court allowed the appeal, finding that the trial judge erred in relying on outdated law regarding natural water flow.
The court held that the respondent's artificial alteration of the driveway surface, which directed water onto the appellants' property, constituted an actionable nuisance.
Judgment was entered for the appellants for $14,000 to install a protective curb.
The successful applicant was awarded $2,250 in partial indemnity costs following mixed success on cross-motions.
The applicant sought partial and substantial indemnity costs for her partially successful motion to set an issue for trial and for successfully opposing the respondent's motion for production and Office of the Children's Lawyer involvement.
The respondent, self-represented, opposed the costs, claiming his motion was in good faith and seeking costs for his lost time.
The court found the applicant to be the successful party overall, though only partially successful on her own motion, and awarded her partial indemnity costs.
