Robert Brenner Plaintiff - v. -, 2018 SKPC 34

IN THE PROVINCIAL COURT OF SASKATCHEWAN CIVIL DIVISION Citation: 2018 SKPC 034 Date: May 10, 2018 File: 6 - 17 Location: Moose Jaw _____________________________________________________________________________ Between: Robert Brenner Plaintiff - and - James Christopher Lee Reid and Marie Aline Celine Reid Defendant - and - James Christopher Lee Reid and Marie Aline Celine Reid Plaintiffs to Third Party Claim - and - Vansa Farmland Ltd. Defendant to Third Party Claim Mr. Kenneth M. Cornea For the Plaintiff, Robert Brenner Mr. Gerald B. Heinrichs For the Defendants, James Christopher Lee Reid and Marie Aline Celine Reid

Mr. Grahame E. Quick For Third Party, Vansa Farmland Ltd. _____________________________________________________________________________ JUDGMENT D. KOVATCH , J _____________________________________________________________________________ Introduction [ 1 ] The plaintiff, Robert Brenner, owned three quarter sections of farmland in the RM of Wheatlands. In 2012, he sold these lands to the third party, Vansa Farmland Ltd. (Vansa) However, even after the sale to Vansa, the plaintiff remained on these lands. In 2015, Vansa sold these same lands to the defendants, the Reids.

The plaintiff brought this action claiming that the Reids wrongly converted a durum crop, hay bales, and other chattels to their own use and sold those. The Reids counterclaimed that Brenner had trespassed upon their lands and they suffered damages. The Reids also issued a Third Party Notice to Vansa alleging breach of their sales agreement. The Evidence [ 2 ] The plaintiff, Robert Brenner, testified that he now lives in Moose Jaw. He owned and farmed the three quarter sections of farmland that are the subject of this dispute.

In 2012, he dealt with and executed an Agreement for Sale for these three quarters of farmland. According to the Agreement for Sale and Purchase, the purchaser was F9 Farms Ltd. The principal involved in that company was David Fu.

Clause 22 of that original Agreement for Sale and Purchase states as follows: “The purchaser reserves the right to assign this agreement to a third party in whole or in part before the closing date upon notification to the vendor.” Apparently such notification was given prior to the closing date, as a result of which the lands were transferred directly from the plaintiff to the present third party, Vansa Farmland Ltd. It is significant to note that Mr. David Fu is also a principal in the third party, Vansa Farmland Ltd.

I am satisfied that Vansa Farmland Ltd. is the designated assignee of F9 Farms Ltd. and is properly named in these proceedings. [ 3 ] The plaintiff testified that he remained on these lands following this Agreement for Sale. He had a number of dealings with Mr. Fu, and farmed some other lands for Mr. Fu. In his Statement of Claim, he alleges that he continued in possession of these lands pursuant to a verbal lease agreement on a year to year basis. He testified that in 2012 there was a shared farming arrangement.

Then in 2013 he agreed to rent the land for $10.00/seeded acre and agreed to pay Vansa $.01/pound for standing hay that was harvested. Payment was to be made in the fall. He testified that in 2013 he paid Vansa slightly more than $1,300.00 rent for the lands. However, in 2014, he got sick and did not seed any of the lands and thus did not make any rental payment for 2014. [ 4 ] In 2015, he seeded 125 acres to durum. In addition, he harvested 223 hay bales and each bale weighed approximately 1,400 pounds. Prior to the sale of the land, he sold 34 bales at 7.5 cents/pound.

Using the same 7.5 cents/pound price, he calculates the value of the remaining 189 bales at $19,845.00. [ 5 ] During the summer of 2015, on two occasions, the Reids came to view the farmyard and other lands. The Reids then purchased these lands. The plaintiff testified that he agreed to be out of the house by October 1. Further, there was no discussion of bales or hay, no discussion of equipment or the other buildings. His understanding of the agreement was that he was to be out of the house by October 1, and that during the month of October he was to move out of the quonset and machine shed.

Further, he would then

have until April of the following year to remove the rest of his equipment. He testified that in October, when he was cleaning out the quonset, the defendant Chris Reid had a truckload of bales and was dealing with the bales. Further, that at this time Mr. Reid said to him that under his contract of purchase, he got the crop and bales and anything on the land. Further, Mr. Reid stated that he would not touch the plaintiff’s machinery and the plaintiff would still be allowed to remove his machinery.

The plaintiff testified that he was given the impression that he was not allowed to come back onto the land to remove bales or durum. As mentioned above, he calculated the value of the bales left on the land at $19,845.00. He testified further that he had 125 acres of seeded durum. In 2015, it was a wet fall. He was not able to get to the durum harvested. He wanted to get it off later, but was not allowed to do so. He estimated the durum crop had ten bushels to the acre, and thus estimated a total harvest from these lands of 1,250 bushels.

He valued the durum at $8.50/bushel, and on this basis estimated his damages for loss of durum at $10,625.00. [ 6 ] He also produced Exhibit P-3, a copy of his invoice for the purchase of a Big Iron water filter in May, 2007. The total amount of the invoice was for $4,892.00. He testified that under his Agreement for Sale to Vansa, he retained ownership of this Big Iron water filter which was located in the house. Under the Agreement, he was given the opportunity to remove this filter from the house. The water filter was downstairs in the house.

The water pipes connected directly to the filter, and all water for the house went through the filter. The piping then came out the other side of the filter to the rest of the house. [ 7 ] In October 2015, he asked the Reids to allow him to enter the house and remove the Big Iron water filter. The Reids refused to allow this, and took the position that the filter was a fixture and part of the home that they had purchased.

The plaintiff claimed this property was wrongfully converted from him, and claimed $2,000.00 in damages for the value of this filter. [ 8 ] Under cross-examination by counsel for Vansa, he agreed that he paid Vansa no rental funds for either 2014 or 2015. (It would appear that rental funds for 2015 would not be due and owing until the fall, when the harvest was completed. At this time, the property had already been sold.) He agreed with counsel that there is no right to sub-let and no discussion of the Notice to Terminate.

He agreed he did not pay any rent for the use of the quonset or some of the other buildings. He remembered being verbally advised that the Reids wanted to take possession during September 2015. He advised that was too early. He agreed he was required to vacate the house by October 1, and believed he did that. He disagreed he was required to vacate the lands entirely by October 1. He agreed there was no formal written lease agreement. [ 9 ] His son, John Brenner, testified that he helped move items off the property.

He testified that he believed the house was vacated by October 1 and the shed was vacated by October 15. He believed that he and his father did not go back to the property after October 15. [ 10 ] Another individual, Rowan Carrobourg testified that he helped with the move and yard clean up. He testified that the yard was in good shape when they left, and there was no rutting. Further, that various pieces of equipment remained on the hill behind the quonset. [ 11 ] Ms. Laurie Lunde testified for the defendant, Reids.

She is a real estate agent who acted as agent for the Reids with respect to the purchase of the property from Vansa in 2015. She testified that she drafted the Purchase Agreement which was ultimately executed by Vansa and the Reids. Prior to execution, there was a lot of discussion about when the plaintiffs would vacate the lands. She testified that the Reids wanted to take possession in July or August, but that could not be accommodated. Eventually, a possession date of October 1, 2015, was arrived at.

Following this possession date, she received a number of telephone calls from her clients, wherein the Reids were upset that the plaintiffs were on the lands and removing items from the lands. She contacted the third party Vansa, but received no response. She said his position was this was a “done deal”. [ 12 ] She pointed out

Schedule A to the Agreement for Sale between Vansa and the Reids. In

Schedule A, it indicates “the seller warranted” there were no leases on the land. She testified she knew and the Reids knew that there was a tenant on the land. However, this was not their concern, but was the seller’s concern. Further, he warranted there were no leases. [ 13 ] Under cross-examination, she agreed with Mr. Cornea that the plaintiff’s equipment was not sold with the land. She stated however, that it had to be off the land. Further, that if it was not off the land, it was forfeited. She adamantly stated that they did not need to have any agreement with the tenants, and that the Reids dealings were entirely with Vansa.

[ 14 ] Roderick Bouck also testified. He is a farmer in the Chaplin area and a friend and advisor of the defendant Reids. He testified that he visited the Reids’ farm a number of times during the fall of 2015. At the request of Mr. Reid, he inspected the standing durum crop. He testified that the crop was very short, past maturity and was “woody.” Further, that it was not a good crop, and was not worth harvesting. He testified that he would not pick it up as the cost of harvest would be greater than its value. Further, that if offered, he would not have taken the crop for free.

He advised Chris Reid to put the cows into this durum field. [ 15 ] Mr. Bouck also saw the hay bales. He testified that they were put up after they were most valuable. He further testified that he would have paid about $40.00/ton for these hay bales (I calculate the value of 189 bales, at 1,400 pounds/bale and at a value of $40.00/ton to equate to $5,292.00.) [ 16 ] Under cross-examination from the plaintiff’s counsel, he testified that the durum crop had no value even for grazing cattle, as it was not fenced.

The cost of fencing the land greatly exceeded the value to be obtained from grazing it. [ 17 ] The defendant, James Reid testified that he worked at the Mosaic potash mine near Belle Plaine. He was interested in going into farming. He bought these three quarter sections from Vansa Farmland Ltd., with a closing date of October 1, 2015. Laurie Lunde acted as the realtor. [ 18 ] He said he never met anyone representing Vansa. During the summer of 2015, he visited the farm and was shown the property by the plaintiff, Mr. Brenner. Mr. Brenner advised of some water problems.

He indicated that he assumed, but was never told that Mr. Brenner worked for Vansa. During these summer meetings, the plaintiff mentioned nothing about a lease on the land or durum or hay bales. [ 19 ] Mr. Reid testified that the first Offer to Purchase provided for a possession date in early August. There were a number of counter offers and matters went back and forth. Eventually it was agreed to an October 1 possession date. He pointed to the Agreement to Purchase from Vansa and the provision that there were no leases.

He indicated that this was important as he did not want to have any leases and wanted to immediately begin his own farming operation. He testified that he did agree to allow until October 15 for the plaintiff to vacate the quonset and that the plaintiff would have until April 15 to vacate the remaining buildings. This included moving a bunch of machinery that was on an island. I gather that this machinery had to be removed during the winter freeze up. [ 20 ] On October 1 he took possession. Mr. Reid immediately began preparations to move his mother, the other defendant, into the house.

He cut a trench and had electricians lay cable to the house. There was some conflict as the plaintiff and his people were, and continued to be, on the land after October 1. This went on throughout the month of October. The defendant said he felt trapped. He purchased this land, but could not explore or move around or deal with it. [ 21 ] Around October 16, the plaintiff was in touch with him and wanted to remove the Big Iron water filter from the home. He contacted Laurie Lunde.

They took the position that the water filter was a fixture and could not be removed. [ 22 ] He testified that on October 31 and November 1, he moved his mother into the home. At this time, he had a talk with the plaintiff. He advised the plaintiff that the land was to be vacated by October 1. Further, that technically everything was his. He stated, however, that he would not take this position or hold the plaintiff to this regarding equipment.

By November 15, the plaintiff finally had most of his stuff moved out. [ 23 ] The defendant Reid testified that there were approximately 190 bales on the land, when he took over. He said the plaintiff could have picked up those bales but did not. He testified that eventually he sold 120 bales for $70.00/bale to ranchers in Alberta. The Alberta ranchers transported the bales to Alberta, and then called to advise that they were disappointed with the quality. As a result, he refunded to them the sum of $1,260.00. One hundred and twenty bales at $70.00/bale equates to $8,400.00.

This sum less a $1,260.00 refund equates it to $7,140.00 in the hands of the defendant. [ 24 ] The defendant testified that he sold or gave away approximately 50 other bales. He said he got money for about 15 to 20. As he recalled, he got about $50.00/bale. This amounts to approximately $1,000.00.

[ 25 ] He testified that the durum was worth nothing. In May, 2016, he seeded right overtop of the existing durum crop. [ 26 ] Mr. Reid testified that there was a lot of garbage and junk left lying on the land. He estimated it took 128 hours to clean up this mess, and that during this time he took 20 trailer loads of loose material to the dump. He claimed damages against Vansa for this on the basis they did not turn over vacant possession of the land to him. [ 27 ] Under cross-examination, he agreed with Mr. Cornea that Ms. Lunde was his agent, and that she prepared the Offer to Purchase document for his execution. This included a

Schedule A. He agreed the tenant was mentioned in the Schedule. However, he did not know who the tenant was. He did not keep any receipts for the funds paid to take loads of junk to the dump. [ 28 ] Under cross-examination by counsel for Vansa, Mr. Reid agreed that he read the purchase document and

Schedule before executing. He also agreed that it contained a term that he accepted the house and yard “as is and where is on September 15.” [ 29 ] Dongliang Frank Su testified that he lives in Saskatoon where he works there as a realtor. He presented Exhibit D-1, the Offer to Purchase from the Reids to Vansa for its execution. Laurie Lunde acted for the purchasers. [ 30 ] Later he received a phone call from Laurie Lunde advising that the tenant had not vacated the property. He then spoke to Mr. Fu from Vansa and advised there was nothing they could do. [ 31 ] Under cross-examination by Mr.

Cornea, he advised that he was aware there was a tenant on the property. He knew the tenant was living on the property and farming some land, but believed the tenant was farming one quarter only. He had little recollection beyond the sale and purchase document. [ 32 ] Mr. D. Chow Fu, also known as David Fu testified that he lives in Regina. He is a principal in F9 Farms and Vansa Farmland Ltd. The original Offer to Purchase from the plaintiff was made through F9 Farms. That agreement contained the assignment clause.

Prior to the possession date, they utilized the assignment clause and decided to put the farmland into the name of Vansa Farmland Ltd. [ 33 ] After the original purchase from the plaintiff, the plaintiff continued to live on the land. They farmed together during the first year, and the plaintiff provided some training. Even though the plaintiff continued to live on the land there was no written agreement to this effect. He just let the plaintiff live there.

He testified he received no payments from the plaintiff in 2014 or 2015. [ 34 ] He was shown the contract of sale to the Reids, and in particular the clause that the seller warrants there are no leases of any kind. Mr. Fu said there was a verbal agreement with the plaintiff, however he did not believe this constituted a Lease Agreement. He did agree the plaintiff offered to pay $10.00 per seeded acre. [ 35 ] He testified that the Reids wanted to take possession in July 2015. He knew the plaintiff was there and was trying to protect the plaintiff. There were counter offers.

When the agreement regarding the possession date was reached, he advised the plaintiff, “most likely by phone”. He did not recall the plaintiff requesting any more time to move off the property after October 1. He did testify that he knew the plaintiff had seeded some land. However, he did not know of any standing crop or hay bales. He stated that the plaintiff was never employed by Vansa Farmland, but did some contract farming for it. [ 36 ] In cross-examination, Mr. Heinrichs suggested to Mr. Fu that Vansa breached the clause regarding vacant possession.

The witness disagreed. [ 37 ] Under cross-examination from Mr. Cornea, he agreed that F9 and Vansa did not purchase the Big Iron water treatment system

and the plaintiff had the right to remove that from the property. He testified that he thought the plaintiff had moved the Big Iron system well before possession date. He agreed with Mr. Cornea there were a number of conversations with the plaintiff, but at no time was there ever any written notice to vacate the property. He also agreed that the plaintiff had paid $1,300.00 in rent during the time that Vansa owned the property. Argument [ 38 ] The plaintiff argued that following the sale of the farmland to Vansa, he continued on the land on a year to year lease basis.

The Reids were fully knowledgeable about this tenancy arrangement, and took the property from Vansa subject to the lease. The plaintiff was entitled to six months notice to terminate the year to year lease, which never occurred. Under The Agricultural Leaseholds Act , RSS 1978, c-A-12 [ Act ] even after sale, the tenants still had the right to harvest and remove the crops. The plaintiff also had a right to remove the water filter treatment system.

The Reids effectively barred the plaintiff from the property, converted the crops and the water treatment system to their own use, and the plaintiff suffered damages. [ 39 ] The defendants argued that there was no Lease Agreement for this property, and the plaintiffs remained in possession under a licence arrangement. The plaintiff had a lot of notice to vacate the property and did not. Further, the Act sets out a procedure for the plaintiff to give notice and re-enter upon the lands to harvest and to obtain his crops. He did not utilize that procedure and made no attempt to get the crops.

As a result, he has abandoned or forfeited that interest. [ 40 ] The Third Party Vansa also argued that the arrangement was more akin to a licencing arrangement. He too argued that the plaintiff had not complied with the Act and thus could not now claim for the crops. With respect to the defendants’ claim that Vansa had breached the agreement by not turning over vacant possession to the Reids, counsel for Vansa pointed to the “as is where is” provision in the agreement. He said that the Reids inspected the property and accepted “as is and where is”.

Having done so, they cannot now complain or claim damages because the property and buildings were not cleaned up to their satisfaction. Analysis WHAT IS THE NATURE OF THE AGREEMENT BETWEEN THE PLAINTIFF AND VANSA FARMLAND LTD. THAT EXISTED FROM 2013 TO 2015? HOW DOES THIS AGREEMENT AFFECT THE PURCHASE AGREEMENT BETWEEN VANSA AND THE DEFENDANT REIDS? [ 41 ] There was considerable debate between counsel as to whether the relationship between Mr. Brenner and Vansa Farmland was a landlord and tenant or leasehold arrangement, or Mr. Brenner was simply on the land under some kind of licence arrangement.

I have determined that there was a tenancy agreement and a landlord and tenant arrangement. The Landlord and Tenant Act , RSS 1978, c L-6 [ Tenant Act ] says: “Tenant includes lessee, occupant, subtenant, undertenant, and his or their assigns and legal representatives.” The same Tenant Act also refers to crops, landlord, standing crops, etc. It seems to me to deal with precisely the kind of tenant arrangement that we had in this case. In Snyder v Lepard , 2002 SKQB 21 , 215 Sask R 302, Mr.

Justice Klebuc quoted from Anger and Honsberger , Law of Real Property , 2 nd ed. vol 1, regarding a tenancy at will: Tenancy at Will A tenancy at will is a tenancy by which a tenant is in possession of that property under an express but more often an implied agreement. The tenancy is determinable at the will of either party. It may be expressly created on the termination of a lease by authorizing the lessee to continue in possession as a tenant at will.

In such a case, in the absence of a contrary intention being shown, the terms and conditions of the original lease apply to the tenancy at will so far as they are consistent with such tenancy. A tenancy at will may arise by implication in many circumstances, for example, when an intending purchaser enters into possession before the conveyance to him, or where a person is given the right, upon payment of taxes, to occupy the premises until a purchaser is found, or if a tenant with the consent of the lessor remains in possession after the expiry of his lease.

In the latter case a tenancy may be implied from the payment and acceptance of rent although the overriding consideration is the intention of the parties. . . [cites omitted] It seems to me that this was a tenancy at will situation, and the Tenant Act is applicable. [ 42 ] Similarly, The Agricultural Leaseholds Act , is also applicable. It says:

1(d) “lease” means any agreement creating a bona fide tenancy between a landlord and tenant in respect of agricultural land, which provides for payment of the rent reserved, or any part thereof, or for payment in lieu of rent, by the tenant delivering to the landlord or to his order a share of the crop grown or to be grown on such land, or the proceeds of such share. [ 43 ] I hasten to add however, that I would apply these two pieces of legislation to this fact scenario, even if I agreed with counsel that the relationship between Brenner and Vansa Farmland was of a licence nature, and not a tenancy per se.

I would also conclude that even though it is a tenancy at will situation, and the landlord may at will terminate the agreement, he must still provide reasonable notice to terminate. In the present case, I am satisfied that the landlord did provide reasonable notice, and that the tenancy at will ended at September 30, 2015. This determination however, has only incidental effect upon the ultimate decision reached in this matter. [ 44 ] Sometimes, in an investigation or analysis of a matter, someone will say “follow the money”. In this case, to reach a decision, I have really “followed the property”.

In particular, I have followed the crops from this property and the chattels that remained on this property. [ 45 ] In argument, counsel for Vansa Farmland and for the Reids seemed to assume that crops and chattels remaining on the property when the Reids took possession on October 1, 2015 automatically became the property of the Reids and they were then free to dispose or deal with that property as they saw fit.

With respect, I entirely disagree with any such assumption or conclusion. [ 46 ] I begin this part of the analysis by going back to the summer of 2015, the period of time immediately preceding the Reids completing the purchase agreement and coming into possession of these lands. The Reids and their real estate agent, Ms. Lunde, placed considerable emphasis upon

Schedule A of the Agreement for Sale and Purchase, wherein “seller warrants that there are no leases in place on the land of any kind”. In my view, the situation was not well handled by Ms. Lunde, and she did not adequately advance the interest of the Reids. The warranty by the seller that no leases existed was meaningless. This is particularly so because of the further provisions in the

schedule referring to the tenant, and advising when the tenant will vacate the home quarter, quonset, remaining building and lands. I suspect that Vansa was warranting that there was no written lease for the property. There was however, a clear reference to the tenancy agreement and the tenant had rights upon the land. It would seem to me that Vansa should have been required to terminate any tenancy agreement and require the tenant to entirely vacate the property in advance of the sale being concluded. [ 47 ] During the summer of 2015, the plaintiff Brenner grew crops of both hay and durum on the lands.

He had in existence a tenancy agreement that required him to harvest these crops and pay a portion of those crops or proceeds to Vansa as the landlord. Brenner also had a lot of chattels on the property. Some of those chattels were junk and virtually worthless, others had some value. However, in September, everyone knew that these crops and these chattels were Brenner’s property, and that he was entitled to remove them from the lands.

Schedule A of the Agreement for Sale and Purchase between Vansa and the Reids states as follows: Current tenant in the home quarter will vacate house by October 01, 2015, quonset by October 15, 2015 and remaining buildings by April 15, 2016. Whatever is left behind by the tenant past April 15, 2016, it will become the buyer’s possessions. It is a fundamental and elementary proposition of law that one cannot pass a proprietary interest to another, if the transferor has no proprietary interest to transfer or pass on.

I ask by what rule of law or by what legal process could Brenner’s property and rights in crops and chattels pass on to Vansa, and then be transferred by Vansa to the Reids. It seems clear to me that the ownership and property in those items remained with the plaintiff Brenner, and that Vansa had no ownership or property in those items that he could transfer to the Reids. [ 48 ] I accept that in the vast majority of land sale situations, whatever is left on the land transfers to the new owners of the land. However, that is because the seller of the land also owns the chattels or other items left on the property.

The Agreement for Sale and Purchase implies or expressly provides that the seller is transferring ownership of everything left on the property to the new purchaser. In the present case, Vansa did not own the crops or the chattels and was legally incapable of transferring those items to the Reids. [ 49 ] As mentioned above, I have concluded that the tenancy arrangement between Brenner and Vansa was properly terminated by Vansa on September 30. The ownership of land and buildings was properly transferred to the Reids, effective October 1.

This necessarily created practical problems for Brenner in terms of accessing and removing those crops and other chattels. However, those practical problems did not and could not result in the actual conveyance or transfer of ownership of those items to the Reids. Some of these practical problems were specifically referred to and dealt with in The Agricultural Leaseholds Act . That Act specifically allowed either the Reids or Brenner to make application to the Provincial Mediation Board for an order. That order would have allowed Brenner

to remove his crops from the property failing which, I would presume that the Board could terminate and extinguish Brenner’s rights in the crops. It is clear however, that both parties had no knowledge of the existence or the applicability of this legislation and made no application for any order. Both parties argued the other was in breach of this Act. It is clear neither complied with the Act and both were in breach. However, I do not think either party’s breach materially affects the assessment of damages.

The Hay Crop [ 50 ] The hay bales left on the property represented the hay crop that was harvested by Brenner during 2015. Based on the above, these bales remained Brenner’s property when the Reids assumed possession of the farmlands. It would appear that most of these bales were sold by Mr. Reid. In selling these bales, he clearly converted Brenner’s property to his use and is liable in damages. Mr. Reid testified that he sold 120 bales at $70.00/bale for a total sale price of $8,400.00.

The purchaser then advised that he was very disappointed with the quality of the bales, as a result of which Reid then refunded $1,260.00, leaving a net sales price of $7,140.00. Mr. Brenner testified that he was obligated to pay $.01/pound of hay to the landlord. One hundred and twenty bales at 1,400 pounds/bale equals 168,000 pounds. At $.01/pound, Mr. Brenner was obligated to remit $1,680.00 to the landlord. Clearly this amount must be charged against the net sale proceeds. $7,140.00 less $1,680.00 equals $5,460.00.

The plaintiff is entitled to receive damages in this amount for bales sold to the customer in Alberta. [ 51 ] Mr. Reid further testified that he sold approximately 50 other bales. He said he gave some away. He said he received approximately $50.00/bale. This accounts for 170 bales in total, which is the lion’s share of what was left behind by the plaintiff. Fifty bales at $50.00/bale equals $2,500.00. The weight of these 50 bales would be 70,000 pounds. The amount owing to the landlord for this would be $700.00. As a result, the plaintiff is entitled to $1,800.00 representing the sale of the balance of the bales.

Total damages representing the bales equals $7,260.00. The Durum Crop [ 52 ] The evidence was that Mr. Brenner had seeded 125 acres to durum. He estimated that he would receive 10 bushels per acre or 1,250 bushels in total from this land. He gave the durum a value of $8.50/bushel, and claimed total damages of $10,625.00. There are several problems with this claim however. Firstly, for the most part, I accept the evidence of Roderick Bouck. Mr. Bouck has said the durum crop was almost worthless.

He said it was very short, past maturity and was “woody.” He indicated that it was not worth harvesting, in that the cost of harvest would be greater than the cost of grain obtained. On the basis of Mr. Bouck’s evidence, I would conclude that the value of durum that could possibly be obtained from this land was much less than $10,625.00, the amount estimated by Mr. Brenner. In addition, Mr. Brenner would clearly have incurred expenses through the harvest. The notional value of these expenses must be deducted from the value of the grain in assessing Mr. Brenner’s damages. In addition, Mr.

Brenner indicated that he agreed to pay Vansa $10.00/seeded acre. One hundred and twenty-five acres at $10.00/acre equals $1,250.00. Clearly this sum must also be deducted from the notional value of grain in assessing damages. Taking all of this into consideration, I am only prepared to allow the plaintiff nominal damages of $1,000.00 for the loss of durum crop. The Big Iron Water Filter System [ 53 ] In my view, this system became a part of the plumbing fixtures in the house. The evidence was clear that a pipe brought water from the well system to the filter system located in the basement.

Clearly the pipes were affixed directly to the filter system so that the water could directly flow into the filter system. Similarly, pipes were affixed to the filter system to remove water from the filter system and pipe it throughout the house. Under the Agreement for Sale and Purchase between Vansa and the Reids, the Reids were a bona fide purchaser for value of the house. The Big Iron water filter system was a fixture in and was a part of the house. The Reids properly became the owners of this system and were quite entitled to refuse Brenner access to the house to remove that system.

Brenner cannot obtain damages from them because they acted in that fashion. Reids ’ Claim Against Brenner for Trespass [ 54 ] Mr. Reid claimed that Mr. Brenner left a number of ruts in the yard. He claimed that these ruts were created by Brenner trespassing on the land and moving equipment around. This claim for damages was eight hours of labour at $25.00/hour. He claimed the labour was essentially for grading and levelling the land to alleviate the ruts. I would note however, that Mr. Reid dug a substantial

trench and laid electrical cable to the house. Undoubtedly, he would have to grade and level following this work, in any event. In addition, he attempted to charge $25.00/hour for his labour in doing this work. He did not pay anybody $25.00/hour and in my view, did not suffer the damages. This claim is dismissed. The Reids ’ Claim for Breach of the Vacant Possession Clause [ 55 ] The Reids advanced a claim against Vansa for breach of the sales contract, by not providing the Reids with a vacant possession on October 1. Essentially Mr.

Reid claims that the property was not cleaned up and loads of junk were left lying on the property. He claims both labour charges and charges to dump junk at the municipal landfill. [ 56 ] Firstly, it must be noted that the Agreement for Sale was solely between Vansa and the Reids. As a result, any action based upon failure to turn over vacant possession must be solely against Vansa and not Brenner. It is a breach of contract allegation. The same contract indicates that the Reids inspected the property prior to sale, and accepted the property where is and as is.

In addition, all property left behind was to become the Reids’ property. Given that the Reids purchased the property where is and as is and got to keep all property left behind, they cannot then complain that they had to clean up the junk and carry it away. In addition, as part of this claim, Mr. Reid claims thousands of dollars for his labour involved in the clean up. For the reasons mentioned above, I would not be prepared to allow his claim for labour expense. He also claims approximately $1,600.00 for dump fees however, he has saved and presented no receipts to verify this expense.

The claim for breach of vacant possession must be dismissed. Conclusion [ 57 ] The plaintiff’s claim against the Reids is allowed and total damages are set at $8,260.00. In addition, the plaintiff will have costs, $100.00 to issue the claim and the cost of service upon the Reids. [ 58 ] The Reids’ counterclaim against the plaintiff is dismissed without costs. The Reids’ claim against the third party, Vansa Farmland Ltd., is dismissed with costs.

At para. 65 of Vansa’s written argument they set out costs as follows: a) $15.00 paid to Frank Su pursuant to a subpoena; b) $89.42 for travel to and from Moose Jaw to Regina (at the rate of 42.83 cents/km) for two days including a per diem of $14.00/day for dinner for Mr. Fu; and c) $110.92 for travel to and from Moose Jaw to Saskatoon (at the rate of 42.83 cents/km) for one day, including a per diem of $14.00/day for dinner for Mr. Su; Total out of pocket costs for Vansa $215.34.

Vansa will have judgment against the Reids for costs in the amount of $215.34. [ 59 ] It is apparent from this judgment that the plaintiff still has some machinery and other chattels on the island at the Reids’ farm. This Court does not have the jurisdiction to grant equitable or injunctive relief and thus I can make no specific order regarding the plaintiff being allowed access to obtain such articles. I would recommend that the parties reach agreement allowing the plaintiff access to the island after freeze up next fall or winter to remove these items. ______________________ D. Kovatch, J