Huntley
vs March
(from John Johnston, Jan. 2006
(john.johnston@gto.net)
IN THE HIGH COURT OF JUSTICE
BETWEEN:
The Municipality of the Township of Huntley, Appellant,
and
The Municipality of the Township of March, and the Municipality of the
Township
of Goulburn,
Respondents.
AND BETWEEN:
The Municipality of the Township of Goulburn, Appellants,
and
The Municipality of the Township of March, and The Municipality of the
Township
of Goulburn,
Respondents.
PRESENT;
Mr. A.H. Armstrong, for the Township of March; Mr. L.A. Smith, for the
Township of Goulburn: Mr. W.J. Kidd, for the
Township of Huntley.
REPORT:
Trial at Ottawa on the 5th, 6th, and 7th days of January, A.D., 1909.
**NOTE**THIS COMPUTER FILE HAS BEEN MADE FROM A PHOTOCOPY FROM
ASSOCIATION OF ONTARIO LAND SURVEYORS (REPORTS FROM COMMITTEES) THERE
HAS BEEN NO ORIGINAL DOCUMENTATION FOUND AS OF AUGUST 5TH, 1996
(THESE THREE APPEALS HEARD TOGETHER)
The Carp River, which is the stream in question in this matter, has its
commencement at a point in the Township of Goulburn, some little
distance
easterly from Stittsville Station, and in close proximity to the
roadway of the
Canadian Pacific Railway. From thence it follows in an
approximate northerly
direction through the Townships of Goulburn, March, Huntley and
Fitzroy, finding
an outlet in the Ottawa River. The area described in the
petition, and which is
sought to be effectually drained by the drainage scheme which we have
under
consideration, is a section of the Township of March, lying in a corner
formed
by a jog between the Townships of Goulburn and Huntley, and lying on
either side
of the Carp River, in so far as it finds its way through the Township
of March.
As I have stated in my report on inspection, that area is composed
almost
entirely of low-lying lands, which are obviously rendered nearly,
if not
altogether, useless, because of lack of proper drainage
facilities.
The evidence is altogether uncontradicted that until about twenty years
ago the
Carp River was in excellent condition, and furnished such good
facilities for
the drainage of the area described in the present petition, that one of
the lots
had growing upon it in one particular year a crop of oats which took
the first
prize in the annual township competition, that being a township well
known to
have in it some of the best lands in the County of Carleton, which
again has in
it lands that are said to be second to none in the Province of
Ontario. Perhaps
no better certificate could be given of the value of the land, which is
said to
be fair average land within the drainage area, for ordinary
agricultural
purposes when it has proper drainage facilities, and perhaps there
could be no
better illustration of the advantages of proper drainage, and the folly
of
permitting a stream such as this to fall into such a state of disrepair
as to
deprive the persons owning the lands adjoining it of their proper
drainage
facilities.
Passing from the Township of March into and through the Township of
Huntley,
the Carp River is in very much the same condition as it is in March,
although
its banks gradually improve until a short distance below the Carp
village, a
point is reached where waters may be discharged without doing any
injury to the
adjoining lands and where there is therefore a sufficient outlet with
the
meaning of the Statute.
On the easterly side of the Carp River throughout the territory with
which we have to do, there is a high and irregular ridge or series of
hills, to which I
have referred in my report on inspection, and which is the watershed
between the
valley of the Carp and the valley of the Ottawa River, the result being
that the
amount of land the water from which flows into the Carp River form the
easterly
side is merely a long narrow strip which cannot contribute any serious
quantity
of water to the stream. On the other hand, the land to the
westerly side of the
Carp River slopes back for a long distance, and there are some half
dozen quite
important streams serving as a natural drainage for this land, and all
finding
their way into the Carp River within that part of it with which we have
to do,
and which is to be improved by the present scheme. It is clear
upon the
evidence that each year large quantities of earth and silt are brought
down by
these streams and deposited in the Carp River. The difficulty
arising in this
way is probably accentuated by reason of the fact that the height of
land back
from the river, particularly in the Township of Huntley, is very
marked, one of
the streams having, as we are told, an elevation of some seventy feet
above the
Carp in a comparatively short distance. There are the usual
number of drainage
improvements in this well settled and prosperous section of the county,
and in
this way each year finds the demands upon the main outlet
increasing. The
result has been that the stream, which twenty years ago afforded ample
drainage
facilities for the area described in the petition, has been gradually
growing
worse, until for the past ten years, or perhaps fifteen in some cases,
these
lands have been largely, if not altogether, useless for agricultural
purposes.
There can, therefore, be no question whatever on the evidence as to the
necessity for the drainage of the area described, nor can there be any
serious
question but that the greater part of the non-repair of the stream is
the result
of its being over-burdened by the water and silt brought down from the
several
feeders of the Township of Huntley, as well as the Kemp Creek in the
Township of
Goulburn. There is of course a certain amount brought down from
the eastern
side in the Township of March as well as from the eastern side in the
Township
of Huntley, but I have already remarked that this must necessarily be
inconsiderable as compared with the amounts brought down from the
western side.
There is also the usual amount of carelessness on the part of the
property
owners along the stream itself.
The land has some use as pasturage, and it naturally has been used as
pasturage
in so far as it can be so used, and there is therefore the usual amount
of
damage by cattle. There is also the usual experience of
permitting farm bridges
to fall into disrepair, and the other minor obstructions which one
finds in such
a stream, but on the evidence I find that the non-repair and the
present state
of non-repair or disrepair of the river is mainly caused by the fact
that it has
been overburdened as an outlet for the several feeders which come into
it from
the west.
I purposely emphasize this finding because it has an important bearing
to my
mind upon the legal result.
I further find upon the evidence that the scheme as propounded by Mr.
Moore
will furnish effective drainage not only for the area in question but
for the
lands in Huntley, along the course of the river, so far as it is
intended to be
improved. I also find that the result of the work will be to give
to the
several feeders entering that portion of the river from the west
sufficient
outlets, within the meaning of the Statute, where they do not have
sufficient
outlets within the meaning of the Statute.
Different objections, all of a somewhat minor nature, have been urged
against
the scheme from an engineering point of view. These I mention for
the purpose
only of showing that I am not overlooking them. One of them
seemed at one stage
to be of considerable importance. It is the fact that about a
mile below the
proposed outlet there is a bridge with an opening of only eighteen feet
while
the proposed scheme at the outlet has a width of thirty feet. I
am not
altogether convinced that this may not be a detriment to the scheme and
that it
may not be found in the course of a few years that this obstacle may
have to be removed. For the present, however, I do not feel that
I would be justified in
finding that the engineer should have gone to the additional expense of
carrying
the scheme that far down stream.
I hope that the result will be as he himself says, that owing to the
distance
which the obstruction is below the proposed outlet, the water will take
care of
itself in sufficient time to prevent injury to lands. Mr. Kidd
has very
strongly urged upon me that I should find that a sufficient outlet can
be had at
a point further up the stream opposite Carp Village where Johnston's
Creek
enters into the Carp River. I accept Mr. Moore's evidence as to
why he carries
the work below Carp Village, as he does. He says it is in order
to get a better
grade, and his profiles show that by so doing he will get a better
grade. In
addition to that it appears to me that there would be, if only from
sanitary
reasons, a very serious objection to having the outlet of what is
really an
important drainage scheme immediately opposite a substantial settlement
such as
the village of Carp. The result is that I must approve of the
scheme as an
engineering proposition, and it only remains to discuss the proportion
of the
assessments as between the different municipalities. In doing so
I naturally
commence with the Township of Goulburn. As a matter of law I hold
that no lands
are liable to assessment for outlet liability unless the owners of
those lands
are actually draining their lands, and unless their water immediately
or
eventually finds an outlet in the proposed improvement.
I find two sections of land in the Township of Goulburn which cannot be
said to
contribute water to the Carp River. The first of these is the
Village of
Stittsville, to which reference was made and as to which the engineer
has given
his consent-- if such consent is necessary-- to its being removed from
the
scheme. The other is a section of the Township of Goulburn which
I find to
consist of lots 14 to 18 in the 2nd concession of Goulburn.
My checking of the report indicates that the total assessment on these
lots is
the sum of $47.95, and that the total assessment on the Village of
Stittsville
is the sum of $30.02, making a total of $77.97.
To that extent I think the amount asked to be raised by the Township of
Goulburn is excessive and must be reduced, and as that amount must be
provided
for in some way, I direct that it be added to the amount to be provided
for by
the initiating township, the Township of March. Otherwise,
without considering
in detail the different objections that have been raised to assessment
of lands
in the Township of Goulburn, I find that the amount charged against
that
Township is properly charged.
In that connection I may shortly indicate what I understand to be a
proper
principle of determining outlet liability as applied to the facts of
the case.
I quite appreciate that there must be reasonableness imported into the
determination of the question of whether or not any particular lot does
or does
not find an outlet for its water in any particular stream. It
would, no doubt,
be absurd to endeavor to trace the head waters of the River Ottawa or
the head
waters of the Nipigon to the River St. Lawrence. But I see no
reason why in
this particular case I should not accept the fact, as disclosed by the
evidence,
that the waters from the different areas which are laid out upon the
plans filed
with the report in question in this matter do actually find their way
in short
time-- in most cases a matter of hours-- to the Carp River.
Outlet liability is
provided for, under sub-section 4 of the 3rd Section of the Act, as
arising in
the case of lands and roads using any drainage work as an outlet or for
which
when the work is constructed an improved outlet is thereby provided,
either
directly or through the medium of any other drainage work or of a
swale, ravine,
creek or watercourse. Some of the lands which are assessed in
this scheme do
and will use the proposed drainage work as an immediate or direct
outlet. This
is more particularly the case with certain of the lands bordering on
the Carp
River. The bulk of the lands assessed for outlet liability use
the drainage
work as an outlet through the medium of the several creeks or
watercourses which
I have described as feeders running into the Carp River from the
westerly side
of the stream, having their tributary drains, and as a result these
feeders
bring down to the Carp River much more water than would naturally reach
it. The
proposed work will furnish these feeders with improved outlets, which
are
necessary for them because of the fact that no one of them at present
has a
sufficient outlet. Each year the water brought down by each one
of these
streams, with its attendant silt and other material, deposits
obstruction in the
bed of the Carp River, which result in damage to the lands bordering on
the Carp
River.
There is no sufficient outlet for these lateral feeders or for any of
them.
The scheme in question will give to each an improved and proper outlet
and the
lands using these feeders for their drainage purposes will therefore by
provided
with an improved outlet by reason of the construction of the proposed
drainage
work. It may be that this brings us very close to the line of
distinction
between outlet liability and injuring liability, but the practical
result would
be the same in either case, and no question has been raised by Counsel
in that
respect.
Of the many cases in which the law has been discussed I need only refer
to
Sutherland vs. Romney, 30 S. C. R. 495, Orford vs. Howard, 27 A. R. 223
and Elma
vs. Wallace, 20 W. R. 198. The cases are well collected and
discussed in Mr.
Proctor's recently published work, in the notes under Section 3,
subsections 3
and 4.
I must not overlook the fact that it is contended that on the evidence
I should
find that there is no artificial drainage on certain of the lands in
the
Township of Huntley, these being the Bayless property, the Argue
property and
the McKay property.
r. Bayless gave evidence as to his own property and that of his
brother, as
well as the property of his neighbor, Mr. Argue, who was not
called. Mr.
Bayless is a young man and presumably has owned the property, in so far
as he
has an interest in it, for a comparatively short period. His
evidence, while it
was no doubt honestly given, was flatly contradicted by the engineer,
Mr. Moore,
whose evidence in turn is corroborated by the fact that his plans,
which were
made immediately after a personal inspection of the property, have
traced upon
them actual drains which Mr. Moore says exist, but which Mr. Bayless
says do not
exist. If it were necessary to find as between the two, I take it
to be
somewhat obvious that I would have to prefer the evidence of the
engineer, but I
do not propose to make any deliberate finding as between the two, for
the reason
that after all the amount is not sufficient to disturb the proportion
of
assessment between the two townships, and this is a matter which can be
adjusted
by the Court of Revision. Mr. Argue himself is not called, and Mr.
McKay
qualifies his evidence by pointing out that he has some drainage
through or
along a road ditch between himself and his neighbor.
The evidence as to his district in Huntley, contradictory as it is, is
not at
all satisfactory to me, not at all like the evidence as to the district
to which
I have referred in the Township of Goulburn, and I cannot feel that I
can safely
relieve this property from assessment. I repeat that, as to all
of it, the
amount is not sufficient to seriously affect the assessment of the
Township of
Huntley as a whole, and the matter can safely be left to the Court of
Revision
of that township. I therefore can find no reason for interfering
with the
assessment in Huntley because of any evidence that has been given as to
any
individual lots. Mr. Kidd argues with much force that in a
general way the
proportion of assessment between Huntley and March is unfair because of
the very
evident fact that the persons whose lands border on the Carp River are
going to
receive an amount of benefit from this proposed drainage scheme largely
in
excess of the amount which they will be obliged to contribute to the
cost of the
scheme. The most that anyone is called upon to pay is twelve
dollars an acre,
while it appears that there will be a uniform actual benefit of about
thirty-five dollars an acre. One can only hope and trust that
this will be the
actual result, and that the people in March as well as in Goulburn will
be able
to congratulate themselves in years to come upon the success of the
scheme.
I cannot find anywhere in the evidence any evidence upon which I could
be asked
to disturb the engineer's proportion of assessment as between the two
townships,
except one piece of evidence which figures out the difference in the
amounts
charged per lineal foot to March for outlet liability. In view of
the fact that
the Act requires a great many things to be taken into consideration in
estimating liability for outlet as well as any other kind of liability,
I cannot
find that a comparison of the mere length is of any assistance to
me. Mr. Moore
has obviously gone into this matter with very great thoroughness.
His plans are
most elaborate. When he was giving his evidence he had before him
a multitude
of memoranda which were stated to be original, and the more the
evidence was
gone into the more evident it appeared that he had exercised the
greatest
possible care in working out his assessments in this matter. He
was under oath;
he had unusual reason for being independent in his judgement, because
at the
time he was making this report he was engineer for the Township of
Huntley. A
previous experience had taught him that a decision which would not be
pleasing
to the Council of Huntley meant the loss of that position and the
income
pertaining to it. Had he borne that in mind he would have had the
ordinary
human reason for carefully protecting the interests of the people of
Huntley.
As it is we find that he subsequently lost the position, and the only
thing that
one can gather from that is that Mr. Moore did not allow the duty which
he
assumed when he entered into this work to be interfered with in any way
by the
fact that he was engineer for one township or the other. I am
satisfied that
his work was honestly and independently done. Even if I were not
thoroughly
satisfied as I am with that, there is no evidence upon which I could
attempt to
re-adjust the assessment as between the townships. I therefore
must confirm the
proportion of assessment as between Huntley and March.
The result of my judgement therefore is, and I must so find and report,
that
both of these appeals must be dismissed, subject, however, to the
variation of
assessment as between Goulburn and March, to which I have referred, and
if I am
wrong in my actual figures these can easily be corrected.
Nothing now remains except the question of costs, always a somewhat
difficult
question. This is a large scheme, one which apparently has
occasioned some
little feeling in the community, and I do not know that any particular
party can
be blamed for having thought proper to have a more thorough examination
of the
merits of the scheme in Court. I therefore think that a fair
adjustment of this
matter is that each municipality should pay its own costs out of the
funds to be
provided by each municipality for the drainage scheme in such a way
that no
amount of the costs incurred in this litigation by any one of the three
municipalities shall be charged against lands or roads in any other
municipality. If this direction is not sufficiently clear, I will
be pleased to
have the parties interested speak to it later, and I will make my
meaning more
clear. My intention is that the lands and roads in each township
shall pay the
costs of that particular township of and incidental to these
proceedings.
(Signed,) GEO. F. HENDERSON,
Drainage Referee
REPORT ON INSPECTION
Pursuant to my appointment, I inspected the proposed drainage works in
this
matter on the 7th day of November, A.D., 1908, accompanied by Mr. A.H.
Armstrong, Solicitor for the Township of March (J.H. Moore, C.E., with
him), Mr.
L.A. Smith, Solicitor for the Township of Goulburn, and Mr. W.J. Kidd,
Solicitor
for the Township of Huntley, Mr. E.T. Wilkie, C.E., being with
them. This
report is made immediately after my arrival back in Ottawa on the
afternoon of
that day, when the whole matter is fresh in my recollection.
We met at Stittsville Station, on the Canadian Pacific Railway, and
first
inspected Stittsville and its immediate locality. The village is
situated in
what some of the parties appropriately called a "saucer," it being
practically
surrounded by a ridge, through which the railway cutting is the only
outlet.
The soil is largely sand and gravel, such as would readily absorb
moisture.
Leaving Stittsville, we drove a couple of miles westerly in
Goulburn. After
about a mile the land became rocky; evidently of small value for
agricultural
purposes. The head of the Argue Award drain is about the limit of
the good land.
Returning to the east of Stittsville, we proceeded to the head waters
of the
Carp River, where there is quite an extended swale. At the
railway crossing
there are three culverts, one on the north, one on the south, and one
crossing
under the track on the east side of the road, indicating the run of
water there.
There was a difference between the engineers as to the water-shed
between the
Carp and Jock Rivers-- this difference was not very great.
Obviously the whole
of this territory requires drainage.
By the road from this point into March the course of the Carp would be
readily
followed by the eye. There are scarcely any banks, and extensive
flats on
either side are evidently useless because of overflowing. This
condition
continued along until we reached the residence of Mr. Thomas
Richardson, where
we stayed for the mid-day meal.
Following along through March, we walked from Mr. Richardson's along
the stream
to a point beyond the town line between March and Huntley. The
area described
in the petition is in March, and the Carp River running through
it. The general
character is pretty much the same throughout March, a large section
evidently
rendered useless because of the condition of the river, which is very
winding
and full of weeds, silt and other obstructions, to such an extent that
there
cannot be said to be any continuous flow at any particular depth;
at the
townline the condition is especially bad.
Passing into Huntley, the banks became slightly better, and gradually
improve
(with variations of course) until at and below Carp village they are
fairly
good, though never high. There are the usual obstructions which
are commonly
found in streams which have not been kept in order.
All the way through March and Huntley a high ridge of the Laurentian
formation
runs along at a distance of approximately one-quarter of a mile from
the river.
This is a peculiar condition, and an important one, as this ridge forms
a
barrier which prevents the water from March generally reaching the
Carp.
(Signed,) GEO. F. HENDERSON,
Drainage Referee
November 22nd, 1909
RE: TOWNSHIP OF HUNTLEY AND TOWNSHIP OF MARCH
Municipal Corporation – Drainage – Assessment for Outlet – Drainage
Area –
Benefit – Report of Engineer – Evidence – Appeal.
Appeal by the Corporation of the Township of Huntley against the
judgement of a
Drainage Referee confirming (with a variation) the report and
assessment of an
engineer made under the provisions of sec. 3 of the Municipal Drainage
Act.
The proceedings were begun by a petition to the council of the township
of
March praying that, in order to drain a described area in that
township, the
Carp river, which commences in the township of Nepean, flows northerly
through
the townships of Goulbourne, March, Huntley, and Flynn, and finally
empties into
the Ottawa river, might be deepened and improved.
The petition was referred to a civil engineer, who prepared a report,
plans,
specifications, and an assessment of the lands in the townships of
Nepean,
Goulbourne, March, and Huntley, and in the villages of Spotsville and
Carp,
which, in his opinion, would be benefited by the proposed work.
Huntley now appealed to the Court of Appeal.
The appeal was heard by Moss, C.J.O., OSLER, GARROW, MACLAREN, and
MEREDITH, JJ.A. E.D. Armour, K.C., and W.J. Kidd, for the appellants.
F.B. Proctor and A.H. Armstrong, for the
respondents.
The judgment of the Court was deliver by GARROW, J.A., who, after
setting out
the facts, said: - The river as it is, with its slight fall, is no
longer
efficient to carry away and dispose of the waters which, by nature, and
artificially by means of drains, come to it, without backing up and
overflowing,
and thereby causing injury to the low lands up stream in Huntley and
March. The
drainage area to the east in the township of Huntley is very narrow and
of
little consequence, but to the west the land slopes for several miles
towards
the river, which is the natural outlet for the drainage of the last
mentioned
area, either directly or by means of several smaller streams or
watercourses
which, passing through the area, empty into the river. These streams …
have
sufficient fall and current to carry to the river the drainage waters
which, by
means of the various drains which have been constructed along their
several
courses, fall into them, and no difficulty arises until the river is
reached.
Acting upon the impression that the drainage, directly and through the
medium
of these streams, is not carried to a sufficient or satisfactory
outlet, the
engineer assessed the lands in the last mentioned area using these
streams for
their immediate outlet, for outlet liability, while other low lands in
the
township were also assessed for benefit.
The real difficulty in the case grows out of the circumstances of the
lands so
assessed for outlet, the contention being that, as they are
comparatively high
lands, they have already a sufficient outlet, and do not need and will
not use
the proposed new outlet.
The mere size of the area is of little consequence in considering
whether or not
the assessment is one which might lawfully be made. Drainage water must
go not
merely to an outlet by means of which it satisfactorily escapes from
the lands
which are being drained, but to a “sufficient outlet,” which, as
defined in sec.
2, sub-sec. 10, means the “safe discharge of water at a point where it
will do
no injury to lands and roads.” And sec. 3, sub-sec. 4, as it now
stands, shews
that it is not sufficient in order to escape from liability simply to
shew that
the first discharge was into a “swale, ravine, creek, or watercourse.”
See Young
v. Tucker, 26 A.R. 162; Township of Orford v. Township of Howard, 27
A.R. 223;
Re Township of Elma and Township of Wallace, 2 O.W.R. 198.
There must, of course… appear to be a reasonable connection between the
source
of the injurious water and the outlet in question, and, if such
connection is
established, the legal right to assess under the statute, however large
the
area, seems to follow.
The question, therefore, is largely one of fact, and is to be passed
upon in
the first instance by the engineer, necessarily an expert, and who,
using his
expert skill and experience, determines not only how the proposed work
is to be
done, but also what lands will benefit by it, and should therefore be
assessed
for its cost. His conclusions may, of course, be called in question by
an
appeal, but, in my opinion, his results ought not be disturbed, unless
it is
satisfactorily proved that they are either erroneous in fact or that he
proceeded illegally… . He found as a fact that these so-called high
lands, which
drain directly into the lateral streams, contribute a substantial part
to the
injury complained of, that the river is, therefore, in its present
condition,
not a sufficient outlet for the drainage which comes to it form such
lands as
well as from the other lands also entitled to drain into it; and he,
therefore,
as I think he might, assessed them for the proposed improved outlet….
In my opinion, no illegality of any kind appears in the procedure of
the
engineer: and there is nothing in the evidence to justify disturbing
his
assessments for outlet or otherwise in the township of Huntley.
Appeal dismissed with costs.