Whitmore v. Chaster Date:, 2013 BCPC 364

Citation: Whitmore v. Chaster Date: 20130613 2013 BCPC 0364 File No: C1903 Registry: Powell River IN THE PROVINCIAL COURT OF BRITISH COLUMBIA BETWEEN: LEE WHITMORE CLAIMANT AND: JOLAYNE CHASTER DEFENDANT REASONS FOR JUDGMENT OF THE HONOURABLE JUDGE A.E. ROUNTHWAITE Appearing in person: L. Whitmore Counsel for the Defendant: G. Rief Place of Hearing: Powell River , B.C. Date of Hearing: June 11, 2013

Date of Judgment: June 13, 2013 [1] Lee Whitmore is suing his neighbour Jolayne Chaster for damages for trespass when she first cut back and subsequentlyremoved a six foot laurel hedge that he believes was on his property. Ms. Chaster does not deny cutting and then removing the hedge, buther lawyer Mr. Rief submits that she should not be required to pay damages because she believed the hedge was on the property line; shehad the Whitmores’ tacit or implied consent to remove it; and even if she were proven to have trespassed, Mr.

Whitmore has not provenhe suffered more than nominal damages. [2] The issues raised by the parties are as follows: 1. Has Mr. Whitmore proven on the balance of probabilities that Ms. Chaster committed the tort of trespass?

a) Has he proven that the hedge was on his property?

b) Did Ms. Chaster have the necessary intention for trespass?

c) Did the Whitmores’ actions constitute implied consent to Ms. Chaster removing the hedge? 2. If trespass is proven, what damages should Ms. Chaster pay? [3] The Trespass Act was mentioned during the parties’ submissions but it has no application to this case. I will explain mydecision by briefly outlining the undisputed facts and then considering each issue. Facts [4] Brian Stanley owned two adjoining lots in Powell River. When Mr. Whitmore bought one of the lots from Mr. Stanley in the1980s, there was a laurel hedge running down part of the side of his lot next to Mr. Stanley’s property. Ms.

Chaster began living withMr. Stanley in about 1995 and she became owner of his lot after his death in 2006. During Mr. Stanley’s lifetime, he and Mr. Whitmoreworked together to clip the hedge, each trimming the side of the hedge facing his property, and maintaining it at a height of about six feetfor many years. [5] Ms. Chaster had difficulty trimming the hedge after Mr. Stanley’s death. She thought the hedge was on the property line. In2008 she had the fence cut back to a height of about 2½ to 3 feet because she could not hold a chainsaw any higher than that for asustained period.

Believing that the shorter hedge permitted more deer to enter his flower and vegetable gardens, Mr. Whitmore built atemporary chain link fence beside the hedge to protect the garden. He stopped trimming the hedge because he wanted it to grow back. In2011, Ms. Chaster removed the hedge because the Whitmores weren’t trimming it and she was unable to do so because of her health. Shedid not discuss either action with the Whitmores in advance. Trespass Has Mr. Whitmore proven that the hedge was on his property? [6] Mr.

Whitmore testified that the hedge was in place when he bought his property in the 1980s; there were survey stakes on theproperty line at that time; and the hedge was on his side of the staked property line. In 2011 the hedge was removed before anothersurvey was done, so the more recent evidence about the location of the hedge is circumstantial. Mr.

Whitmore points to photographsshowing the boundary line established by a surveyor after the hedge was removed and the trench and root debris left after the removal.He testified that the hedge grew on his side of the property line with its branches and leaves extending to the line. Robert Moore testifiedthat in 2011 when he helped Mr. Whitmore measure the trench where the hedge had been, he observed disturbed soil and some roots thatindicated the hedge had been on Mr. Whitmore’s property. Ms.

Chaster said it grew on the property line, and points to contradictoryevidence about the distance between the hedge and the fence erected by Mr. Whitmore to argue that the hedge must have been located onthe line with its branches extending to either side. [7] I consider the photographs provided by the parties to be the best evidence available. They appear to show that before they wereremoved, the “trunks” of the laurel bushes came out of the ground on Mr. Whitmore’s property with the branches extending to the fenceon his side and to the property line on Ms. Chaster’s side (Exhibits 1A, B, D, E).

The variation in testimony about the distance betweenthe hedge and the fence may be explained by the width of the hedge having increased as it grew with little trimming from 2008 until2011. I accept that the combination of the testimony of Mr. Whitmore and Mr. Moore and the photographs proves on the balance ofprobabilities that the hedge grew on Mr. Whitmore’s property. [8] Moreover, even if the hedge grew on the property line, Ms. Chaster was not entitled to remove it without Mr. Whitmore’sconsent. In Anderson v. Skender, (BC CA), [1993] B.C.J. No. 1769 (B.C.C.A.) the B.C.

Court of Appeal considered“border trees,” referring to trees with trunks standing on or beside the property line at ground level, and with roots or branches extendinginto adjoining properties. The Court said that generally an owner of land is entitled to cut branches or roots of a neighbour's trees thatextend over the property line but not to enter the neighbour's property, nor to cut any part of the tree which is on the neighbour's side ofthe property line without consent.

Did Ms. Chaster have the necessary intention for trespass? [ 9 ] I accept that Ms. Chaster believed the hedge grew on the property line. If she were correct, not knowing the law would not excuse trespass. If, as I have found, the hedge was on Mr. Whitmore’s property, Ms. Chaster did not take adequate measures to find out whose property the hedge was on. As she seemed to acknowledge, she could have had a survey done before removing the hedge. She could also have talked to Mr. Whitmore to find out where he believed the property line to be. Thus, not knowing that the hedge was on Mr.

Whitmore’s land is not a defence to the Claim. Not finding out whose property the hedge was on amounts to negligent trespass. Did the Whitmores’ actions constitute implied consent to Ms. Chaster removing the hedge? [ 10 ] A person does not trespass if they enter land with the owner’s consent, either express or implied. Ms. Chaster concedes she did not have the Whitmores’ express consent to reduce the hedge’s height in 2008 or remove it in 2011. She didn’t discuss either action with them before proceeding. [ 11 ] Mr. Rief argued that there were circumstances from which it was reasonable for Ms.

Chaster to infer consent. I accept that some years before 2008 when both were involved in Citizens on Patrol, Ms. Chaster had talked to Mrs. Whitmore about how a high hedge prevented neighbours from watching each other’s yards for burglars. However, they did not discuss cutting down the laurel hedge, and this conversation could not reasonably be interpreted several years later as constituting consent to cut back or remove the hedge. [ 12 ] Mr. Whitmore testified that when he discovered Ms.

Chaster had cut back the hedge he complained immediately: he asked her what she was going to do about this and she said nothing. He said the same thing happened after she removed it. Ms. Chaster said Mr. Whitmore did not complain after she cut back the hedge, but given the strained relations between the parties and the fact that Mr. Whitmore erected a fence after she cut back the hedge, I accept that Ms. Chaster would have known Mr. Whitmore was unhappy about her action. [ 13 ] Mr. Rief, also submitted that consent could be implied from the fact that Mr.

Whitmore stopped trimming the hedge after it was cut back and from Ms. Chaster’s testimony that Mrs. Whitmore said they had left room between the fence and the hedge so Ms. Chaster could trim both sides. Mrs. Whitmore denied this conversation, but if it occurred, I cannot accept that it would be reasonable to infer that the Whitmores consented to removal of the hedge. The fact that the Whitmores were unwilling to trim the hedge after its height was reduced is more consistent with their wanting it to grow, or being angered by Ms. Chaster’s actions, than with their consenting to its removal.

Conclusion [ 14 ] I conclude that Mr. Whitmore has proven that Ms. Chaster or her agents trespassed on his property when she had the hedge cut back and later removed. Damages [ 15 ] An award of damages for trespass should restore the Claimant as closely as possible to the position he would have been in had the trespass not occurred. Damages may provide compensation for loss of value of the land or the cost of restoring it to its previous condition. [ 16 ] If a person sues for trespass without proving that damage has occurred, only a nominal amount will be awarded. Mr. Rief submits that Mr.

Whitmore has not proven he suffered damage as a result of the hedge being removed. However, the evidence establishes that the Whitmores placed a high value on the privacy and security the hedge had given them for thirty years. Their back garden has been ‘their domain,” the place where they spent a great deal of time, tending both flower and vegetable gardens, relaxing over afternoon tea, and wearing whatever they choose. Their use of the garden changed, and their privacy and enjoyment in it lessened, after the hedge was reduced and removed. Moreover, a hedge has aesthetic advantages over a chain link fence.

I find that the evidence does establish that Mr. Whitmore suffered loss of enjoyment and privacy as a result of Ms. Chaster’s trespass. [ 17 ] There was no evidence about the effect of loss of the hedge on the value of Mr. Whitmore’s property. In order to restore his property to its previous condition he wishes to replace the hedge with another hedge or a panel fence, but he is only entitled to install another hedge at Ms. Chaster’s expense, not a more expensive fence. [ 18 ] The parties differ on their estimates of the length of the hedge that was removed: he says 110 feet; she says 60. Mr.

Whitmore measured the trench left when the hedge was removed; Ms. Chaster’s measurement was based on her recollection of where the hedge had been. Based on a photograph in Exhibit 3 showing the entire hedge, and accepting that there would be a margin of error in Mr. Whitmore’s measurement because the trench would have extended past the ends of the hedge, I consider that 90 feet is a reasonable estimate of the length of the hedge. [ 19 ] There are a number of reported cases on trespass involving laurel hedges in B.C.

In many of those cases there was expert evidence on the replacement value of a mature laurel hedge. There was no such evidence in this case. Perhaps because large laurel bushes may not be widely available, Mr. Whitmore provided an estimate for supplying and planting 110 feet of 5-6 foot Emerald Cedar hedging (45 shrubs with 2.5 foot centres) for $4800 plus GST . Ms. Chaster provided an estimate of $509 for twenty 2 gallon laurel bushes having a height of about 1½ feet and soil, and an estimate of $852 plus GST to provide top soil and plant laurel bushes supplied by others.

She argues that the 2 gallon plants are sufficient because they will grow quite rapidly, possibly attaining heights of 6 feet in about 7 years. Mr. Whitmore points out that he is 75 years old and needs taller plants sooner in order to regain privacy in his garden while he is still able to enjoy it. [ 20 ] I have taken into account that the two-year time limit provided by the Limitation Act for suing Ms. Chaster for cutting back the hedge in 2008 expired in 2010, but I consider that Ms. Chaster’s actions amount to a continuing trespass: in 2008 she removed the top half of the hedge; in 2011 she removed the rest.

These similar tortuous acts were committed in pursuit of a single objective – removing something she felt unable to maintain.

[ 21 ] There being no evidence about the cost of replacing a mature laurel hedge, I conclude that Mr. Whitmore’s proposal for 5 to 6 foot cedars will restore him more closely to his previous position than would Ms. Chaster’s proposal for 2 gallon laurels. However, Mr. Whitmore’s estimate amounted to a cost of over $100 per shrub to supply and plant a hedge and I find this highly excessive. [ 22 ] If a 110 foot hedge would require 45 cedars as indicated by Mr. Whitmore’s estimate, a 90 foot hedge would require 36 cedars. Taking into account Ms. Chaster’s estimate for planting, and reducing Mr.

Whitmore’s cost per plant to a more likely amount, I consider $2500 a reasonable sum to replace the laurel hedge. There will also be an award of $500 to compensate Mr. Whitmore for his loss of enjoyment of the property. There was no claim for punitive damages in this case. [ 23 ] I therefore order that Ms. Chaster pay Mr. Whitmore $3000 plus filing and service fees of $156. A. E. Rounthwaite Provincial Court Judge