Erik v McDonald, 2017 ABQB 39

Court of Queen’s Bench of Alberta Citation: Erik v McDonald, 2017 ABQB 39 Date: 20170123 Docket: 1401 12164 Registry: Calgary Between: Mary-Lou Erik and 1196679 Alberta Ltd. Applicants - and - Debbie McDonald also known as Debbie Sparks, Doug Sparks, Ernest H. Domshy, Rose Domshy, Sanit Chanhao, Kanokwan Promcharoenwatana, and Her Majesty the Queen In Right of Alberta Defendants _______________________________________________________ Reasons for Judgment of the Honourable Madam Justice B.E. Romaine _______________________________________________________ I. Introduction [ 1 ] This is an application for

summary judgment involving a dispute among neighbors who own property in the Bearspaw area west of Calgary. Each of the applicants and the defendants other than the Crown own or reside on lands bordering a body of water known as the Pedersen Reservoir. [ 2 ] All of the parties agreed that a

summary trial procedure was appropriate, and it is apparent that resolution of the use and fencing issues will largely resolve the litigation. Given the nature of this dispute, a

summary trial is an appropriate procedure that meets

the needs of the parties: Hryniak v Mauldin , 2014 SCC 7 at para 2 . II. Facts [ 3 ] The Pedersen Reservoir was created in the 1960s by W.A. Stephenson, who applied for and obtained a licence to divert and use water under the then-in-force Water Resources Act . Mr. Stephenson applied for authority to divert water from a coulee on the N.E. quarter of 19-25-2 W5M for domestic purposes on the 160 acres of land that he held under agreement for sale. [ 4 ] Mr.

Stephenson was granted an interim licence, which authorized him to construct works necessary for the utilization of water from the coulee and he built a dam and culvert to divert the water and create the reservoir. [ 5 ] He was granted a final licence on January 25, 1968, which gave him and his assigns the right to divert water from the coulee for: ...domestic purposes as hereinafter specified and described, viz; -- watering of stock and similar purposes...

And to take and keep possession of the [stipulated quantity of] water for and during the period during which this license may be in force under the provisions of the Water Resources Act . [ 6 ] In 1972, the lands were subdivided. The original owners of the subdivided lands were the Watmores (Block 6), the Domshys (Block 7) and the Santins, (Block 9). [ 7 ] A restrictive covenant was registered on all of the subdivided land on August 4, 1972. The covenant covers lands “contiguous with the shores or covered in part or in whole by the water known as the Pedersen Reservoir”.

Among other things, it precludes the owners of these lands from doing any act that would pollute, broach or drain the waters of the reservoir. It provides that all owners have the obligation of paying their equal share of maintaining and repairing the reservoir. [ 8 ] The water licence was transferred to Joseph Santin in 1984. The licence was reissued to the Santins in 1986. [ 9 ] The reissued licence states that the Santins are licenced to divert and use the quantities of water prescribed in an interim licence, subject to the terms and conditions in the interim licence.

The purpose of the licence was stated to be “agricultural”. [ 10 ] The interim licence bears the same number as the interim licence granted to Mr. Stephenson. The terms of the interim licence include the following: 3. This interim license together with the resulting license remains valid only as long as the licensee continues to enjoy the right to occupy or otherwise affect the lands required in the operation of this project. ... 4. The licensee is responsible for the operation and maintenance of the works and for any damages that may result therefrom. 5.

The rights and privileges hereby granted are subject to periodic review and to modification to ensure the most beneficial use of the water in the public interest and more particularly to ensure preservation of the rights of other water users. ... 7. Following completion of the works herein authorized this interim license and its terms and conditions shall be attached to and become part of the license to use water issued under the provisions of the Water Resources Act . (emphasis added) [ 11 ] In 2000, the Santin land was subdivided. Ms.

Erik and her late husband became owners of two acres of the land, the Erik lands. In 2002, on the death of her husband, Ms. Erik became the sole owner of the Erik lands. In 2006, the Santins sold the remaining lands to 196679 Alberta Ltd. (the “119 lands”). The dam that was constructed under the Stephenson licence is located on the 119 lands and the Erik lands, and the culvert, which forms part of the dam, is located on the Erik lands. [ 12 ]

Section 58 of the Water Act, RSA 2000, c W-3, provides that licences and all works operated under a licence run with the land. Therefore Ms. Erik and 119 are the parties entitled to the benefits and subject to the obligations of the licence. [ 13 ] In 2005, the defendant Debbie McDonald became the owner of the Block 6 lands. The defendant Doug Sparks resides with her. The defendants Ernest and Rose Domshy, the owners of Block 7, are Ms. McDonald’s parents. [ 14 ] The defendants Sanit Chanhao and Kanokwan Promcharoenwatana also own lands contiguous to the Pedersen Reservoir.

The main protagonists in this dispute, however, are Ms. Erik, 119 and Ms. McDonald. [ 15 ] The dispute started in 2013 when Ms. McDonald decided that none of her neighbours should be allowed access to the parts of the Pedersen Reservoir that are within the alleged borders of her property. [ 16 ] Initially, Ms. McDonald erected an “No Trespassing” sign on an old platform in the reservoir that faced the Erik’s house. At Ms. Erik’s request, she moved the sign to the other side of the platform. Ms. Erik says that, the next day, Ms. McDonald sent her an email saying she was glad to see Ms.

Erik’s husband enjoying his last canoe ride on the reservoir. Their relationship deteriorated from that point. Ms. McDonald started to call the RCMP and allege that the Eriks were trespassing on her property. No charges were laid but

the RCMP came on numerous occasions for a period of time to investigate. [ 17 ] In March 2014, Ms. McDonald erected a fence across a part of the reservoir . She says her property line with 119 and Ms. Erik lies under this fence line. The fence effectively cuts off the occupants of the 119 property and the Ms. Erik from the largest portion of the reservoir.

The rather unattractive fence extends about 5 feet above the waterline, and to a certain extent below water, and faces the Erik residence. [ 18 ] Before the fence was erected, the reservoir was used by the Eriks and their child and guests for canoeing and kayaking in the summer and skating and hockey in the winter. The fence now interferes with these innocent enjoyments. There is some dispute about how frequently the Eriks accessed the reservoir for these activities in the past, but that is not relevant to this decision. [ 19 ] For her part, Ms.

McDonald has two horses and a goat on her property (although these animals were not acquired until early 2015), and she says the fence is necessary to prevent them from wandering off the property. She also says she is concerned about her liability if others use the portion of the reservoir that is on her property. [ 20 ] Both sides of this dispute allege harassment. There is no doubt that all the protagonists of the dispute have been guilty of nasty conduct. Commencing in 2014, Ms.

Erik and her partner and guests and the tenants of 119 appear to have frequently ignored the fence while kayaking, directing their kayaks and canoes over or under the fence. [ 21 ] One night without warning or consultation, Ms. McDonald equipped the fence with bright lights directed at the Erik residence. She says that these lights were an attempt to discourage beavers. The lights were eventually taken down when Ms. Erik agreed to install shore lights. Ms. McDonald has placed cameras directed at the Erik residence at a number of places above her property line. One Christmas prior to the erection of the fence, Ms.

Erik and her family had cleared snow from the reservoir in preparation for a Christmas day hockey and skating party with their children. Ms. McDonald shovelled the snow back over the cleared part of the reservoir. She has taken pictures of Ms. Erik’s dog straying on what she alleges is her lake property in the winter months. [ 22 ] Ms. Erik posted a critical comment about Ms. McDonald’s character on Ms. McDonald’s business website. Ms. McDonald alleges that her neighbors have left dead beavers on her shore line. The parties have had disputes about beavers in the area. Ms.

Erik alleges that beavers that reside on the McDonald land are clogging the entrance to the culvert, which is on the Erik land, and causing significant erosion around the lake. Ms. Erik is responsible for the maintenance of the dam and culvert. She sought co-operation from Ms. McDonald to allow professional trappers to remove and relocate the beavers, but Ms. McDonald refused permission to enter onto her lands. [ 23 ] Ms. McDonald attempted to have Transport Canada become involved in the dispute.

Transport Canada takes the position that, since the reservoir is not navigable, it is not subject to, the federal Navigation Protection Act . It advised in a letter dated June 5, 2014 that: Furthermore, a main purpose of the NPA is to regulate works and obstructions that risk interfering with navigation in Canada’s busiest navigable waters listed on the

schedule of the Act . Since the Pedersen Reservoir is not on the schedule, the NPA does not apply to this body of water. In closing, Transport Canada is of the view that this situation is a neighbor dispute, which should find its solution under the common law. [ 24 ] The RCMP have now declined to act on Ms. McDonald’s frequent complaints until there has been a determination by a civil court about whether the fence was lawfully erected. [ 25 ] Ms. McDonald has also been in contact with Rocky View County, and says that she was told she could build the fence. No one from Rocky View was called to give evidence.

Both parties have been in contact with Alberta Environment and Sustainable Resources, Ms. McDonald provided hearsay evidence of her conversations with an employee of Alberta Environment and an email that refers to an undisclosed internal document and provides a heavily-hedged opinion that Ms. McDonald would be allowed to erect a fence and deny access.

The author of this email was not called to give evidence. [ 26 ] A January 15, 2014 letter from Kevin Brayford, Senior Water Administration Technologist with Alberta Environment and Sustainable Resource Development addressed to residents adjoining Pedersen Reservoir was attached to Ms. McDonald’s affidavit. It reads as follows: Our office has received several inquiries from the residents adjoining the Pedersen Reservoir about the adjoining landowners’ rights in regards to this man-made reservoir. The land under the reservoir is private property . The water in the reservoir is not private property.

All water in Alberta is owned by the Crown and managed by the province under section 3(2) of the Water Act . Crown ownership exists regardless of whether the water is on public or private land or whether the water is held in a naturally occurring water body or a man- made water body. Residents (and others) who have legal access to the land adjoining the reservoir can traverse in or on the water within the reservoir, but they do not have the right to access other private land surrounding the reservoir or private property (such as docks) constructed within the reservoir without permission from the landowner.

Residents will also need permission from the landowner prior to touching or accessing the bed (the land portion) of the reservoir. Water Act requirements

Any diversion of water from the reservoir requires a licence under the Water Act unless the diversion is exempt under

Section 21 of the Water Act (water for household use) or under

Schedule 3 of the Water (Ministerial) Regulation .

Schedule 1 of the Water Act (Ministerial) Regulation identifies activities which are exempt from the requirement for an approval. Placing, constructing, installing, maintaining, or removing a fence in or adjacent to a water body is one such activity that is exempt. In other words, landowners are allowed to fence their property boundaries (private land); however landowners are advised that they must comply with all other legislation and this does not mean that you have an authority under federal legislation such as the Navigable Waters Protection Act or the Fisheries Act .

Please check with Transport Canada and the Department of Fisheries and Oceans relating to the application of Federal laws. [ 27 ] Mr. Brayford was not called to give evidence. Ms. McDonald attached to her affidavit a follow up letter from Alberta Environment and Sustainable Resources Development that stated that the provincial Crown had not claimed ownership of the land and shore of the Pedersen Reservoir under

Section 3 of the Public Lands Act , that the provincial Crown owns and governs the right to divert and use all water within the province of Alberta under Section 3(2) of the Water Act , and that, if she chose to erect a fence on her own private lands, that fence would not be the property of the Crown. The author of the letter was not called to give evidence. III. Issues [ 28 ] The issues are: (

a) the extent and limits of rights of the owners of land bordering the reservoir over the use of the reservoir waters; and (

b) whether the fence built by Ms. McDonald and Mr. Sparks was lawfully erected. IV. Analysis [ 29 ] Pursuant to Subsection 3(2) of the Water Act , RSA 2000, c W-3, the Crown owns “the property in and the right to the diversion and use of all water in the Province”. If the Pedersen Reservoir is a “permanent and naturally occurring” body of water, the Crown would have title to its bed and shore. A representative of Alberta Environment has referred to the reservoir as “man-made”.

If, as appears to be the case, the reservoir was created by a dam on part of a naturally occurring coulee, it cannot be said to be entirely man- made, but it was certainly transformed into a reservoir by Mr. Stephenson under the authority of his interim water licence. There is no evidence that any excavation of the bed of the reservoir was required, but the reservoir would not exist in its present form without the culvert and dam.

However, this does not end the analysis. [ 30 ] The parties disagree over whether the reservoir, while man-made, can nevertheless be characterized as a “permanent and naturally occurring” body of water. Ms. Erik and 119 submit that it is clear, based on a Rocky View County map attached to the Agreed Statement of Facts and on an Alberta Land Titles Spatial Information System map put in evidence, that a body of water known as the Twelve Mile Coulee runs through the McDonald lands, the 119 lands and the Erik lands and eventually feeds into the Bow River.

They rely on the Ontario case of McLennan v Meyer , 2004 CarswellOnt 402 at paras 72-74 for the proposition that there are circumstances under which an artificially enhanced body of water may be considered a natural body of water. The question in McLennan was whether the defendant had damned up a natural water course. The Court heard expert evidence on the characteristics of a natural watercourse, and referred to Corpus Juris Secundum for guidance. This included the following.

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. It may be created as a result of the settlement of adjacent territory, and in its creation it may be aided by the hand of man. Thus if a permanent man-made watercourse has a defined bed, visible banks, and a recurrent flow of water, it should be considered a natural watercourse if it has been maintained for a sufficient length of time. [ 31 ] Ms.

Erik and 119 submit that Section 3(3) of the Public Lands Act , RSA 2000, CP–40 supports their submission that the Crown owns the bed and shores of the reservoir. Section 3(3) states that “...a river, stream or watercourse does not cease to be naturally occurring by reason only that its water is diverted by human act.” [ 32 ] Section 3(1)(

a) of the Public Lands Act provides that title to the beds and shores of all permanent and naturally occurring bodies of water belongs to the Crown. [ 33 ] Ms. McDonald disagrees that Twelve Mile Coulee is the source of the water in the reservoir, and submits instead that man- made ponds on a golf course north of the reservoir are its source. She also disagrees that water flows through the property. [ 34 ] I find Ms. Erik and 119’s submissions on the source of the reservoir water to be persuasive.

The reservoir has been in existence since 1968, roughly 48 years, and otherwise appears to meet the characteristics of a natural watercourse described in McLennan . While Ontario’s water law may be different from the regime in Alberta, the issue in the McLennan case did not rest on those differences. If the Pedersen Reservoir falls within Section 3(1) of the Public Lands Act and title to the land beneath the reservoir rests with the Crown, the rights of access of the contiguous owners would be resolved through riparian rights and principles. While Ms. McDonald attached Mr.

Brayford’s opinion to her affidavit evidence, it is hearsay and would not bind this Court in any event. [ 35 ] In this

summary trial, I did not have the benefit of expert testimony on the source and character of the reservoir. However, I have concluded that it is not necessary for me to decide whether the Pedersen Reservoir is a naturally occurring body of water to decide the issues before me. [ 36 ] Even if the land under the reservoir is private property, the water in the reservoir is not private property. Therefore, as noted

by Mr. Brayford, residents who have legal access to land adjoining the reservoir (in this case by virtue of their ownership of the land thatadjoins the reservoir ) are entitled to traverse in or on the water within the reservoir as long as they do not trespass on a private shorelineor touch the allegedly privately-owned bed of the reservoir. [37] Without the fence, Ms. McDonald would no right to prevent her neighbours from using the water or reservoir for recreationalpurposes. She has sought to interfere with the rights of the landowners with legal access to Crown-owned water by erecting the fence.She relies on

Schedule 1 of the Water Act (Ministerial) Regulation, which allows the erection of a fence “in or adjacent to a water body”. [38] In context, the regulation makes sense: owners of agricultural land who wish to prevent their stock from wandering orlandowners who wish to provide additional security against trespassers on their property may well wish to place a fence “in or adjacentto” the water that encroaches on part of their land.

However, the fact that the erection of such a fence water does not require the approvalof the Director under the Water Act does not mean that a fence creates ownership of the Crown-owned water that it encloses, oreliminates the rights of others to access such water. [39] There can be no trespass of property that one does not own. [40] Ms. McDonald’s reliance on the Water Act or its predecessors is misplaced in these circumstances. The Act is concerned withthe diversion and conservation of water. The water licence that has devolved upon Ms.

Erik and 119 relates to the right to divert water tocreate the reservoir and to operate and preserve the dam and culvert that make the reservoir possible. [41] Section 22(3) of the Water Act is noteworthy in this respect. It provides: Nothing in this Act is to be construed so as to repeal, remove or reduce any rights held at common law by a riparian owner other than theright to the continued flow or diversion of water. [42] Thus, while riparian rights have been abrogated by the Water Act to the extent that they conflict with licenced uses under thelegislation, they have not been completely abolished: David R.

Percy, “Water Rights in Alberta” 1977) 15 Alta LR 142 at 160-161.Certain common law riparian right remain unabrogated. [43] Ms. Erik and 119 rely on the water licence and riparian rights for their submission that they are entitled to access to thereservoir for their recreational activities. Again, reliance on a water licence issued under the Water Act is misplaced with respect to theuse of the reservoir for these activities.

The water licence was and is necessary for the diversion of water, but the rights of all landowners that hold property contiguous to the reservoir for use other than those regulated by the Water Act are the same and, in this case,are governed by common law principles. [44] Ms. McDonald relies on the decision of Western Irrigation District v Trobst, (AB KB), 1990 CarswellAlta310. The facts in Western Irrigation District are distinguishable from this case.

In that decision, the lake at issue was entirely artificial innature; the Western Irrigation District owned the land under the lake; and the issue was the authority of the Western Irrigation Districtunder the Irrigation Act to impose a water benefit change on the land owners contiguous to the lake. [45] However, Justice Virtue, considered the land owners’ submission that they had riparian rights that entitled them to take waterfrom the lake for ordinary and domestic purposes.

As noted by Professor Arlene Kwosniak in “Alberta’s Wetland: A Law and PolicyGuide” (Edmonton: Environmental Law Centre, 2001 at pg. 49-50), there are a range of riparian rights, including rights relating to useand quantity and rights of access.

It is clear that the Water Act abrogates riparian rights relating to use and quantity, but, as noted inSection 22(3) of the Water Act, does not affect riparian rights not regulated by the Act. [46] The Court in Western Irrigation District found that the circumstances in that case did not give rise to a riparian right to usedomestic water from the reservoir free of charge, or create an exemption from the provisions of the Irrigation Act: para 25. [47] Virtue, J. commented on the issue of whether riparian rights can exist with respect to artificial bodies of water.

He began hisanalysis with reference to a statement in Halsbury’s Law of England to the effect that the right to the flow of water in an artificial channelmust rest on some grant or arrangement from or with the owners of the land from which the water is artificially brought or on some otherlegal origin: para 19. [48] The Court noted at para 22, however, that: The fact that the defendants’ lands abut on the artificial, as opposed to a natural body of water, does not end the matter. Singh v Pattuk,supra, was an appeal to the judicial committee of the Privy Council from the High Court at Bengal.

The plaintiff claimed that thedefendant had placed dams in the irrigation works passing through the defendant’s lands so as to divert the irrigation waters fromflowing through the irrigation system to the plaintiff’s lands, as it had formerly done. According to the evidence in the case, the systemof irrigation had existed beyond living memory. The Privy Council concurred with Lord Denman C.J. in an earlier case that [4 App.

Cas.at 127]: [T]he proposition that a water course of whatever antiquity, and in whatever degree enjoyed by numerous persons, cannot be enjoyed soas to confer a right to the use of water, if proved to have been originally artificial, is quite indefensible; but, on the other hand, the generalproposition that, under all circumstances, the right to water courses, arising from enjoyment, is the same, whether they be natural orartificial, cannot possibly be sustained.

The right to artificial water courses, as against the party creating them, surely must depend uponthe character of the watercourse, whether it be of a permanent or temporary nature, and upon the circumstances under which it is created. [49] The law with respect to access to artificially-created water thus appears, to be focused on the rights of parties than the partycreating the body of water. The true issue, if this is an artificially-created reservoir, may be whether Ms. McDonald and the otherdefendants have rights of access to the reservoir that was created by Mr.

Stephanson, and whose maintenance and upkeep has devokedupon Ms. Erik and 119. However, the comments of Lord Denman are also appropriate in this case with respect to all landowners whoseproperty abuts the reservoir.

[ 50 ] The Pederson Reservoir is 48 years old, and was in place and enjoyed by the Erik family prior to Ms. McDonald acquiring her lands. She was aware of the water licence. She was aware of, and is bound by the restrictive covenant, which obliges all contiguous owners to help pay for the maintenance of the reservoir. However, Ms. Erik and 119 bear the obligation under the water licence to maintain the dam and the culvert. [ 51 ] Ms. McDonald does not require the fence for agricultural purposes: she could prevent her horses and goat from leaving her property using a fence that is adjacent to the shoreline.

Her fears about occupier’s liability are unfounded. [ 52 ] In the circumstances of the creation of the reservoir and its long history, I find that both the applicants and the defendants have the right to access the reservoir for recreational purposes, despite its man-made nature. The erection of the fence interferes with that right, and it must be removed. As long as the applicants do not cross the shore of Ms.

McDonald’s lands, they are not, and have not been, trespassers. [ 53 ] As noted by Cory, J in dissent in Welsh v Marentette , 1985 CarswellOnt 724 at para 63 : In this province, the water belongs to the Crown. All owners with the right of access to the water should be entitled to use that water for all reasonable purposes. The only limitations upon their use should be that it does not unreasonably interfere with the rights of the other riparian owners.

The law should discourage neighbours from interfering with those living near to them by unduly inhibiting the reasonable use and enjoyment of the water that flows between their properties. [ 54 ] While the case is distinguishable on its facts, the principle expressed in the quote is equally applicable in this case. Fences do not always make good neighbors when they are erected to interfere with innocent enjoyment of Crown-owned water. V. Conclusion [ 55 ] The applicants are entitled to an order: (

a) declaring that the defendants Debbie McDonald and Doug Sparks do not have the right to erect and maintain a fence on the alleged mid-reservoir property line between the McDonald lands and the 119 lands and Erik lands; (

b) granting a permanent injunction requiring Ms. McDonald and Mr. Sparks to remove the existing fence; (

c) declaring that the applicants and the defendants, along with their successor in title, have the right to recreational use of the Pedersen Reservoir, including traversing it by canoe or kayak, without interference from each other; and (

d) granting leave to seek the balance of the relief claimed in the Statement of Claim or any amendment thereto at a later time. [ 56 ] If the parties are unable to agree on costs, they may make written submissions, on the issue. Dated at the City of Calgary, Alberta this 23 day of January, 2017. B.E. Romaine J.C.Q.B.A. Appearances: C. Richard Jones / Marc-Elie Scott for the Applicants Mary-Lou Erik and 1196679 Alberta Ltd. Gillian S. Holowisky for the Defendants Debbie McDonald and Doug Sparks