2013 QCCQ 13801, 2013 QCCQ 13801

G.P. c. James 2013 QCCQ 13801 COUR DU QUÉBEC « Small Claims Court » CANADA PROVINCE OF QUÉBEC DISTRICT OF MONTRÉAL LOCALITÉ OF MONTRÉAL « Civil Division » N° : 500-32-126388-109 DATE : November 4, 2013 ______________________________________________________________________ BY THE HONORABLE SYLVIE LACHAPELLE, J.C.Q. ______________________________________________________________________ G. P. -and- M. P., represented by his mandatary, A. I.

Plaintiffs vs JOHN JAMES -et- NINA DIMARIA Defendants ______________________________________________________________________ JUDGMENT ______________________________________________________________________ [ 1 ] Plaintiffs, M. P. and G. P. (« P. ») are represented by their mandatory, A. I. (« I. »).

The latter lives at the same address. [ 2 ] I. alleges that their neighbours, the Defendants, Nina DiMaria (« DiMaria ») and John James (« James ») damaged P.'s property while they hired a firm to cut the trees on their property on August 2008. [ 3 ] I. alleges that James never repaired the damages on P.'s property and he evaluates these damages to $7,000. [ 4 ] James acknowledges that work was being done on their property in August 2008 namely the cutting and trimming of trees. [ 5 ] However, James alleges that they took I.'s word that extend of damage caused by the person they hired to trim and cut the trees were tire marks and James agree to correct and rectify the damages but I. would never have given access to the property. [ 6 ] James adds that I. never substantiated P.'s claim with an expert report or an estimation of the work to be done in order to rectify the alleged damages. [ 7 ] James filed a cross-demand claiming $6,999 from the P.s on the following grounds : 1.

P. would have removed and misappropriated James' dock in July, 2009 and it would have cost $1,844 to replace it. 2. P. harrassed James in piling debris and garbage on James' property, as appears from picture D-4 en liasse. They claim $5,155 for moral damages and loss of enjoyment of their property.

The facts [ 8 ] The parties are neighbours and they used to be good friends, inviting each other and sharing each other's equipment. [ 9 ] On August 2008, James had their trees trimmed and the truck of the company that they hired had to drive on P.'s property to access the James' property. [ 10 ] James approached P.s' and agreed to make the necessary repairs to P.'s property to their costs but when James scheduled work, I. was not available to allow him to access to his property. [ 11 ] I. argues that James promised to do the repairs but they never respected their engagement. [ 12 ] At the hearing, I. argues that the drainage pipes that are on James' property were crushed by the truck which caused P.'s property to be floaded.

[ 13 ] In addition, according to I., James would have blocked the drainage pipe in placing a rock in front of the pipe's exit close to the lake. [ 14 ] According to I., these pipes were installed twenty (20) years ago by the former owner, Mr.

Marsh. [ 15 ] James explained that notwithstanding the drainage pipes, these properties are always floaded at springtime but they dry by themselves in summer. [ 16 ] If James put a rock on the hole where the pipe exits that is on his side of the property, it is to avoid his children to trip in that hole. [ 17 ] From that point, it seems that the situation escalated. [ 18 ] I. decided to remove the dock that he argues he owns the property of it, but that was mistakently installed in front of James' property. [ 19 ] I. pretends that he let James used his dock without giving them any warning whatsoever. [ 20 ] James alleged that the dock was already in front of his property when they bought it. [ 21 ] Actually, a survey was done at the time he bought the property but the property line was not pegged.

Anyhow, James were not informed that the dock was incorrectly installed. [ 22 ] After I. decided to remove the dock without informing James in advance, James rather than discuss about the situation, decided to buy a new dock for which he paid $1,800 and they installed it at approximately in the same area where the former dock had always been. [ 23 ] In an attempt to cease conflictual discussions with I. regarding the line property, James suggested him to have their property line pegged and share the cost of $1,072.31 to do it. [ 24 ] I. refused to participate to that exercise, convinced that the line of property was where he said it was. [ 25 ] To make his point, I. started to dump garbage and pile of junks on a line between the two (2) properties, at is shown on several pictures filed at hearing. [ 26 ] James filed pictures that also shown, on July 1st, 2010, the surveyors pegging out the actual property line and where we see that the debris appeared to be on James' property. [ 27 ] It is to be noted that James informed the police and the City Hall that I. was acting in bad faith leaving all that junk on their property. [ 28 ] Finally, after a few days, P. removed the debris. [ 29 ] James filed pictures taken May 30 th , 2010 and July 1 st , 2010 showing that there is no damages on P.'s property.

There is no tire marks left on the ground. [ 30 ] Edwin Webb (« Webb ») knows very well the area and the actual owners and former owners of these properties close to the lake has he lives also in the neighbourhood for more than thirty (30) years. [ 31 ] Webb does not have drainage pipes on his property and according to him, it is not as a result of a pipe that the water is drained because the water on these lands goes off by itself every summer. [ 32 ] According to Webb, the dock was on James' property and I. took it back. [ 33 ] I. argues that according to

Article 988 of the Civil code of Québec ("C.C.Q."), an owner bound to give access to his land is entitled to compensation for any damage he sustains as a result of that sole fact and to the restauration of his land to its former condition. [ 34 ] Regarding the dock, I. argues that according to Articles 925, 928 and 933 of the C.C.Q., James did not prove the right they are exercising as the presumed owners of the dock.

Decision [ 35 ] It is Plaintiff who has the burden of the proof. [ 36 ] Regarding I.'s claim for tire marks on P.'s property, the Court does not see any evidence whatsoever of remaining damages as it is shown by the pictures. [ 37 ] In addition, P. did not file any expert report or any estimation of these alleged damages to support I.'s testimony. [ 38 ] Thus, P. is not entitled to any compensation has he did not prove that he sustained any damages on his property. [ 39 ] It is the same situation with respect to the damages allegedly caused to the drainage pipes. [ 40 ] P. did not present to the Court anything else than a factual hypothesis.

P. argues that his property had been floaded because the pipe would have been crushed in the course of the work done on James' property. For the Court, P. did not present anything else than a

factual evidence. [ 41 ] Thus, the Court concludes that P. did not succeed to prove his claim and consequently, his Motion Introductory of Suit is dismissed. [ 42 ] With respect to the counter-claim, the Court is of the opinion that James succeeded to prove that the property line was not where I. believed it was based on the survey report. [ 43 ] The certificate of location ( D-1 ) shows no encroachments, no tolerances or servitudes registered against James' property in favour of P.. [ 44 ] In fact, the evidence shows that P.'s behaviour towards James is abusive and marked of bad faith contrary to Articles 6 and 7 of the C.C.Q. [ 45 ] P. removed the dock that was in front of James' property without any right. [ 46 ] James was the possessor of the dock and according to

Article 928 of the C.C.Q. that reads as follows : " 928. A possessor is presumed to hold the real right he is exercising.

A person contesting that presumption has the burden of proving his own right and, as the case may be, that the possessor has no title, a defective title, or defective possession." [ 47 ] P. who pretends was the owner of the dock did not prove his own right. [ 48 ] Consequently, the Court concludes that James is entitled to be compensated for the replacement of the dock for which they disbursed $2,081.42 including taxes. [ 49 ] However, the proof reveals that the previous dock was quite old and thus, the Court applies a depreciation and arbitrarily sets the amount of the compensation granted to the cross-claimant to $600 for that item. [ 50 ] The Court also believes that P. should have requested a survey report to identify the property line. [ 51 ] Instead, I. put garbages on a portion of the property he thought was P.'s whereas the survey requested by James reveals it was not the case. [ 52 ] Thus, the Court condems P. to pay the disbursements for the survey report which reaches the amount of $1,072.31 ( D-4 ). [ 53 ] Since the Court has no hesitation to believe that defendants had their vacation with their family disturbed by I.'s behaviour, an additional amount of $1,000 for harrassment, trouble, inconveniences and loss of enjoyment of the property is granted. [ 54 ] The total amount of the condamnation reaches $2,800 plus costs.

FOR THESE REASONS, THE COURT : DISMISSES Plaintiffs' Motion Introductory of Suit; WITH COSTS . GRANTS partially Defendants' cross-demand; CONDEMNS Plaintiffs cross-defendants to pay the amount of $2,800, with interest and the additional indemnity according to

Article 1619 of the Civil code of Quebec as of the demand letter dated October 25, 2010 ; PLUS COSTS . __________________________________ SYLVIE LACHAPELLE, J.C.Q. Hearing date : May 13, 2013