2013 QCCQ 2817, 2013 QCCQ 2817

Besner c. Price 2013 QCCQ 2817 COURT OF QUEBEC Small Claims Division CANADA PROVINCE OF QUEBEC DISTRICT OF MONTREAL Civil Division No: 500-32-124605-108 DATE: March 28, 2013 ______________________________________________________________________ PRESIDED BY THE HONOURABLE DAVID L. CAMERON, J.C.Q. ______________________________________________________________________ STEPHEN BESNER […] Dollard-des-Ormeaux, Quebec, […] Plaintiff v.

ESTEE PRICE GABY ROCKEACH […] Dollard-des-Ormeaux, Quebec, […] Defendants ______________________________________________________________________ JUDGMENT ______________________________________________________________________ [ 1 ] Stephen Besner, owner of a residence at 45 Inglewood, Dollard-des-Ormeaux, sues the owners of the bordering property, Estee Price and Gaby Rockeach for damages alleged by in the amount of $ 8,400, which he reduces to $ 7,000, the maximum permitted in the Small-Claims Division. [ 2 ] The claim arises out of the decision taken by Mrs Price and Mr Rockeach to remove a row of cedar trees in proximity to the boundary line between the two properties.

Mr Besner had, with the previous owner of 15 Dana, treated this hedge as common property. The former neighbour took care of having the trees trimmed from time to time and the two neighbours shared the expenses proportionately. Mr Besner therefore alleges that his new neighbours had the obligation of consulting him before doing anything with respect to the cedars. [ 3 ] Mrs Price and Mr Rockeach contest the action alleging that they had every right to cut down these trees, which they assert were entirely on their property, according to measurements made by their surveyor.

They state that these trees were in bad state having not been properly maintained and that they were well in excess of the maximum height permitted by the city by-laws. [ 4 ] Subsidiary, they argue that the claim is exaggerated as a new row of cedars to form a hedge could be installed for less than $ 3,000. Issues [ 5 ] The Court must determine whether the Plaintiff has demonstrated that he was the co-owner of the trees and, if he meets his burden of proof in that regard establish the value of the compensation he is entitled to as a result of their removal.

Facts [ 6 ] Mr Besner and his family have lived at 45 Inglewood since 1997. Their backyard and that of the neighbour was separated by a hedge of cedar trees. This hedge was part of what made the property attractive to Mr Besner when he decided to purchase it. [ 7 ] The neighbour at that time, Mr Jack Miller, bought his house in 1987. The trees were already well established by then. He sold the property in 2007.

During the time he and Mr Besner were neighbours, he carried on a practice that he had established with the previous owner, that of having the hedge clipped every few years and splitting the costs proportionally. [ 8 ] He states that at the time of his previous neighbours, the trees were approximately eight feet high and when he sold in 2007, they were close to 10 to 12 feet high, still robust and solid. [ 9 ] Mr Miller speaks of the hedges as being common in an email sent to Mr Besner on June 2, 2010. [ 10 ] The Defendant filled a written statement of Arnold Wolfe the original owner of 15 Dana dated October 8, 2010.

In this written testimony, Mr Wolfe asserts that he built the home in 1975-1976 and that he planted a line of trees entirely on his own property at his

own expense. He refers to the surveyor Rabin & Rabin as having established the property lines. [ 11 ] Mr Rockeach also filed a certificate of staking, which shows that the hedge as having the centerline of their trunks within the Defendants' property.

It is referred to as a "large cedar hedge" and the drawing shows that the branches of the hedge extend considerably over both properties. [ 12 ] The hedge, centered on the Defendant's property line, continues along the property to the West at a right angle to the border of the property with Mr Besner. [ 13 ] It was on basis of this certificate that Mrs Price and Mr Rokeach decided they were entitled to cut down the hedge and preceded to do so on or about June 1, 2010.

The goal was to obtain several feet of additional useable space, to erect a fence for privacy and security and to carry out other improvements to the in back yard. [ 14 ] Mr Besner was shocked when his neighbours' contractors cut down the trees and complained first by speaking correctly to Mrs Price and then through a series of letters culminating in a letter of demand and this lawsuit. Analysis [ 15 ] In reading the correspondence and in hearing his testimony, the Court notes that it is as much a question of him being offended by having not been consulted as it is a question of rights.

He asserts his claim on the basis of common ownership, i.e. that the hedge is so close to the line it must be common, as he and his previous neighbour believed.

It was his expectation that his neighbour would not affect the status quo without his consent. [ 16 ] But, the Civil Code permits any owner of land to fence his land by erecting a fence near the boundary subject to restrictions imposed by municipal authorities, so long as it is entirely own his property. [ 17 ] He also has the right to compel his neighbours to join with him in the erection and the maintenance of the common fence or hedge on the property line, on a shared-cost basis. [ 18 ] The relevant articles are as follows: 1002.

Any owner of land may fence it, at his own expense, with walls, ditches, hedges or any other kind of fence. He may also require his neighbour to make 1/2 of or share the cost of making a fence which is suited to the situation and use made of the premises, on the dividing line to divide his land from his neighbour's land. 1003. A fence on the dividing line is presumed to be common.

Similarly, a wall supporting buildings on either side is presumed to be common up to the point of disjunction. [ 19 ] Thus, the question is whether the Plaintiff has fulfilled his burden of proving that the existing fence was common property. [ 20 ] The practice of placing stakes to establish property lines for erection of fences and hedges is quite common. Certificates of location and of staking do not have a probative value sufficient to render them legally biding on owners who must proceed to a legal request to establish boundaries, according to

article 978 of the civil code if they are in dispute on the matter. [ 21 ] Therefore, in the present case the certificate of staking has only a relative probative value, and does not establish real [1] rights, a determination that is not within this Court's jurisdiction in any event. It is, however, an indication that the Court may consider in the balance of probabilities in an action in damages. [ 22 ] According to Mr Rabin, the center of the trunks is clearly on the Defendants' property.

Photographs that show the sixteen-inch trunks of the cedars, after they had been cut down, confirm that they were indeed planted within the boundaries of 15 Dana. [ 23 ] A continuation of the hedge over the remainder of Mr Besner's property to the West beyond the Defendant's property appears to be differently oriented, perhaps closer to or even centered on the property line, but it is difficult to be certain.

This appearance nevertheless, would be consistent with Mr Wolfe having planted the trees, deliberately, on his property and with someone else continuing the row of trees at a slightly different angle on the next lot over. [ 24 ] On the whole of the evidence, Mr Besner did not succeed in proving his common ownership over the hedge. It is more likely that the trunks of the trees were entirely on the Defendants' property, which is what the Defendants believed on the basis of the certificate of staking they obtained.

The subsequent discussion with surveyor Rabbin, who also spoke to the Plaintiff, gave them no reason to doubt that the initial opinion was both sincere and reasonable. [ 25 ] Having found that Mr Besner has not established his rights, it not necessary for the Court to explore the other issues raised such as the legality of the hedge, whether it was still in a good enough condition to withstand a severe pruning and the appropriate means and costs of its replacement. [ 26 ] Mr Besner has the benefit of several quotations, including those obtained by the Defendants, and the cost is certainly affordable. [ 27 ] In the Court's view, the Defendants did not have the duty to discuss the matter with their neighbour before acting.

They were very reluctant to discuss the matter with Mr Besner as they learned through a real estate agent that he may have strong feelings on the matter. They did not want to explore the possibility of a common fence, preferring to act unilaterally as the Civil Code permits them to do. [ 28 ] This is, perhaps, regrettable. Mr Besner is, without any doubt, a reasonable person and a good neighbour. That being said, the decision not to communicate did not constitute a fault, in law, on the part of the Defendants.

[ 29 ] Unfortunately, and perhaps inevitably, a conflict arose but both parties acted with the appropriate dignity and serenity in submitting that conflict to the Court for a resolution. [ 30 ] This is an example of a case where there should be no award as to costs. FOR THESE REASONS, THE COURT: DISMISSES the Plaintiff's demand; WITHOUT costs. __________________________________ DAVID L. CAMERON, J.C.Q. Date of hearing: January 28, 2013