Hyperlawhypertext legal database Grandview v. Doering [1976] 2 SCR 621

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Grandview v. Doering

[1976] 2 SCR 621 Court SCC Decision date 1975-10-27 English

PartiesTown of Grandview (Defendant) Appellant; and Arthur Herbert Doering (Plaintiff) Respondent

Counsel (4)
Knox B. Foster and Rodney Stevenson, for the defendant, appellant.
Walter C. Newman, Q.C., and L. J. Lucas, for the plaintiff, respondent.
Solicitors for the defendant, appellant: Aikins, MacAulay & Thorvaldson, Winnipeg.
Solicitors for the plaintiff respondent: Newman, MacLean, Winnipeg.

Judges Laskin, Bora; Martland, Ronald; Judson, Wilfred; Ritchie, Roland Almon; Spence, Wishart Flett; Pigeon, Louis-Philippe; Dickson, Robert George Brian; Beetz, Jean; de Grandpré, Louis-Philippe

Delivered by Majority

On appeal from Manitoba

Subjects Action

Contents

The judgment of Laskin C.J. and Spence, Pigeon and Beetz JJ. was delivered by

Prior to the 1st day of January, 1967, the defendant operated a dam in the said River at a point in the said River within the corporate limits of the defendant corpo­ration. The said dam was operated in such a manner as to during the fall and winter seasons impound water and cause to be built up the water up stream from the dam

[Page 625]

to an artificially high level but after spring break up the defendant would cause the dam to be adjusted so as to return the water level to its natural height during the crop growing season. In 1966 the said dam was damaged, and was replaced by a mound of earth, stones and large pieces of waste concrete constructed by or on behalf of the defendant as a makeshift dam and no attempt was made except as hereinafter stated to reduce the level of the water impounded up stream by the said mound during the growing season in each year.
The said farm land of the plaintiff has a layer of natural aquifer consisting of sandy soil about four feet below the surface of its top soil and in consequence of the defendant maintaining the water up stream at an artificially high level since 1967 during the growing season including where the said river runs through the plaintiff's land causes the water to enter the aquifer and to saturate the soil to such an extent that either crops cannot be sown or if they are sown then crops fail to grow on some 40 acres more or less thus causing the plaintiff damage.
The plaintiff has repeatedly demanded that the defendant reduce the height of water to its natural level during the growing season and has advised the defendant repeatedly of the damage caused but the defendant has refused or failed to do anything to eliminate the said cause except once just prior to the 1973 growing season when the said mound that serves as a make-shift dam was opened up in time to enable the plaintiff to sow his 1973 crop and for it to grow unaffected by the satura­tion aforesaid.
The acreage affected by the said saturation has never been less than 34 or more than 46 acres and the plaintiff has had to work the land whether or not he harvests the crop.
In consequence of the said wrongful actions of the defendant the plaintiff has suffered the following crop losses during the undermentioned years including interest, namely:

Footnotes

  1. [1] [1975] 1 W.W.R. 321, 52 D.L.R. (3d) 395.
  2. [2] [1939] A.C. 1.
  3. [3] [1970] S.C.R. 608.
  4. [4] [1971] S.C.R. 637.
  5. [5] (1962), 37 D.L.R. (2d) 16, affirmed [1963] S.C.R. vi.
  6. [6] [1974] S.C.R. 1111.
  7. [7] [1975] 1 S.C.R. 273.
  8. [8] (1843), 3 Hare 100.
  9. [9] [19231 2 K.B. 432.
  10. [10] (1958), 15 D.L.R. (2d) 638.
  11. [11] (1879), 4 App. Cas. 801.
  12. [12] (1920), 50 D.L.R. 435.
  13. [13] [1965] 2 All E.R. 4.
  14. [14] [1975] 2 S.C.R. 248.
  15. [15] [1939] A.C. 1.