ALAN SWARTZ v. SUSAN SWARTZ, 2011 NSSM 23

Claim No: 342868 IN THE SMALL CLAIMS COURT OF NOVA SCOTIA Cite as: Swartz v. Verrette, 2011 NSSM 23 BETWEEN: ALAN SWARTZ and SUSAN SWARTZ Claimants - and - MARCEL JOSEPH VERRETTE and COLLEEN VERRETTE Defendants REASONS FOR DECISION BEFORE Eric K. Slone, Adjudicator Hearing held at Dartmouth, Nova Scotia on March 22, 2011 Decision rendered on April 4, 2011 APPEARANCES

For the Claimants self-represented For the Defendants self-represented BY THE COURT: 1 The two families involved in this case are neighbours in the Mineville area of Dartmouth, Nova Scotia. 2 This is a semi-rural area of lots of approximately one acre each. The Swartz property is a slightly narrow, rectangulardouble lot. The Verrette property is squarer and abuts about half of the Swartz property to the north. According to the topographicalmap placed in evidence, the Verrette property sits several metres higher.

Both families have lived there since sometime in the 1980's. 3 The issue in this case is water drainage. The Claimants contend that the Defendants had some work done to level out theirproperty in 1991, which resulted in a change to the drainage pattern. Since about the spring of 1992, a large

section of the Swartz lot hasbecome very wet, to the extent that there have been some incidents of flooding into their basement. The photos placed in evidence showsignificant amounts of water in the yard. 4 According to Mr. Swartz, what happened was that there had been a small hill on the Verrette property that was largeenough to obscure his view of the Verrette house. That hill was essentially bulldozed away, and the fill was used to level off a low-lyingpart of the Verrette land.

At that same time, a drainage pipe or weeping tile was either put in place, or exposed, which had the effect ofdiverting considerably more water onto his property than had been draining before. 5 The Defendants do not dispute that this hill was flattened and their property levelled, but they differ as to where the hill wasand further argue that the effect of levelling their land would logically have had the effect of reducing, not increasing drainage. Theyoffer a couple of explanations for why the Claimants are experiencing the problem.

One of which was that the Claimants’ land hadalways had a wetness problem, which was partly confirmed by neutral witnesses. The other was the suggestion that the problem hasbeen created, or aggravated, by the loss of trees after Hurricane Juan in 2003. 6 Having heard all of the evidence, there is no doubt in my mind that there was a degree of wetness that the Claimantsexperienced, but that it increased significantly after the Defendants had their work done.

The Hurricane Juan theory is improbablebecause it did not occur until eleven years after the Claimants began to experience a significant problem. 7 It is not possible to know exactly why the earth-moving work had the effect that it did. As we all know, water flowsthrough both above-ground and underground streams and finds its way to lower ground. If its pathway is blocked or diverted, it will findanother way which may or may not seem logical. We may have no way of knowing what may be the consequences of changing thecontours of land.

Much of what is going on underground is concealed, although we may see the result. 8 The fact that the water increased significantly after the Defendants changed the contours of their land is too suspicious toamount to a pure coincidence. It is more probable than not that the work affected the water flow, and the Claimants are suffering anunintended result. The Law 9 Landowners have a right to make changes to their land, but must take responsibility if someone else is adversely affected. This legal principle has been clearly stated by our courts. In Loring v.

Brightwood Golf & Country Club Ltd. (1974), (NS CA), 44 D.L.R. (3d) 161, Chief Justice MacKeigan approved the following passage from the text Farnham on Law of Waters(1904) Vol. III at p.176:

With respect to water as it falls from the clouds the burden must rest where it falls so long as the water remains in a diffused state,without being gathered into any channel. In such condition the water will, ordinarily, do no particular harm, and if it is necessary toobtain drainage for it, resort must be had to the aid of the state by means of public drainage proceedings. While the water is in thatcondition any landowner may make such improvements upon his property as he chooses. He may build upon or change the surface atpleasure, without liability for the incidental effect upon adjoining property.

He cannot, however, by artificial means gather the waterupon his property together and throw it upon the property of his neighbor, whether the grade of the latter's land is higher or lower thanhis. The property of the neighbor is under no servitude to furnish artificial drainage for his property.

Furthermore, the upper ownercannot change the course in which the water flows over the surface of his property, nor can he render his surface impervious so as tocollect the water at his boundary and cast it on to his neighbor, nor can he do anything to relieve himself of the water at his neighbor'sexpense. 10 The matter was also discussed earlier in Smith v. Autoport Ltd. (1973) (NS SC), 11 N.S.R. (2d) 569 asbeing a specific example of the law of nuisance: 38 This whole subject is merely a particular application of the law of nuisance.

The essence of nuisance is a condition or activity whichunduly interferes with the use or enjoyment of land. The general principles are set out in paragraph 1393 of Clerk & Lindsell on Torts,13th Ed., as follows: The acts which constitute public nuisances are all of them unlawful acts. In private nuisance, on the other hand, the acts constituting thenuisance are not necessarily or usually unlawful. A private nuisance may be and usually is caused by a person doing on his own landsomething which he is lawfully entitled to do.

His conduct only becomes a nuisance when the consequences of his acts are not confinedto his own land but extend to the land of his neighbour by (1) causing an encroachment on his neighbour's land, when it closelyresembles trespass, (2) causing physical damage to his neighbour's land or buildings or works or vegetation upon it, or (3) undulyinterfering with his neighbour in the comfortable and convenient enjoyment of his land. It may be a nuisance when a person doessomething on his own property which interferes with his neighbour's ability to enjoy his property by putting it to profitable use.

It is alsoa nuisance to interfere with some easement or profit or other right used or enjoyed with his neighbour's land. 39 In Sedleigh-Denfield v. O'Callagan and Others, [1940] 3 A.E.R. 349, Viscount Maugham stated at page 354: On the other hand, there is no doubt that, if an owner of land for his own convenience diverts, or interferes with, the course of a stream,he must take care that the new course provided for it shall be sufficient to prevent mischief from an overflow to his neighbours' land, orthat he will prima facie be liable if such an overflow should take place: Fletcher v.

Smith (5), as to which see Greenock Corpn. v.Caledonian Ry. Co. (2). It would be a defence to prove that the overflow was due to a rainfall or a storm so exceptional that it should beregarded as

an act of God. No doubt it would also be a defence, subject to a qualification which I will mention later, to prove that theoverflow was caused by the interference of a trespasser. The distinction between a natural use of land, or of water flowing through it, andthe consequences of constructing some artificial work on land which alters the flow of water and causes damage to a neighbour has beendrawn in a number of cases. The principle is not limited to the case of the diversion of a natural stream.

I will cite three cases in supportof that proposition, though, in my view, the present case does not differ from one in which a natural stream is interfered with. 11 The upshot is that there is a kind of status quo with respect to water drainage that must be maintained, failing which theperpetrator of the change is liable for any damage that results. 12 I do not for a minute suggest that the Defendants knew that the consequence of doing the work on their property would havethe effect that it did, but intention is not an element in the law of nuisance. 13 Although the event in question happened almost twenty years ago, the damaging effect is an ongoing one and the Limitationof Actions Act has no application.

Statutes of limitations only begin to run after all of the damage has been suffered. Damages

14 The Claimants are seeking a practical solution that will have the effect of draining the excess water away from their home and create a “dry well” that will capture much of the excess water. They supplied two estimates for such a system. One estimate is for $5,650.00 (including HST) while the other is for $4,800.00 or $5,100.00 - plus HST - depending on the choice of certain options. I am prepared to award the lower of the estimates, which is $5,650.00. In my view this is a conservative measure of the damage suffered. 15 The Claimants shall also be entitled to their filing costs of $179.35 plus $50.00 for service of the claim, for a total judgment of $5,879.35. Eric K. Slone, Adjudicator