Conflicting Use – Balancing Interests

Neighbours’ use of their adjoining properties sometimes conflict.  Where is the balance between the property rights of an individual to make reasonable use of his property and the rights of adjoining landowners to the protection of their property and the public interest?

In a recent decision of the Ontario Superior Court, the court considered an application by a municipality for an injunction and damages arising from a landowner’s blockage of a private drainage ditch causing flooding on neighbouring properties and jeopardizing the safety of a county road.  The County had proposed remedial work to clean the drainage ditch which drained a number of properties.  This work was completed on all of the adjoining properties but the respondent landowners refused to allow the work to proceed on their property.  Instead, they constructed an earth dam in the drainage ditch preventing entry of the water onto their property.  During spring runoff, the adjoining properties flooded because the runoff did not have its natural outlet in the drainage ditch.

In considering the respective property rights of these neighbouring landowners, the court determined that the drainage ditch needed to be graded to permit a proper flow of water and that the continuation of flooding would cause damage to both adjoining properties and the substrata of the County road.  The court stated:

“The main issue, in my view, is whether the actions taken by the respondents in damming the ditch amount to a public nuisance. 

“A public nuisance is any activity which unreasonably interferes with the public’s interests in questions of health, safety, morality, comforts or convenience … A public nuisance is conduct which amounts to an attack upon the rights of the public generally to live their lives unaffected by inconvenience, discomfort or other forms of interference.”

In determining that the landowners’ action in damming the drainage ditch constituted a public nuisance, the court commented:

“It is not enough to ask:  Is the defendant [respondent] using his property in what would be a reasonable manner if he had no neighbour?  The question is, Is he using it reasonably, having regard to the fact that he has a neighbour?”

Accordingly, the court granted the requested injunctive relief restraining the landowners from obstructing the drainage ditch located on their property and awarded damages to the municipality in the amount of the remedial cost to remove the obstruction.

Conflicting uses of neighbouring properties may be restrained where the offending use adversely impacts the property rights of neighbours or the public.  In determining the existence of a public nuisance the courts will consider a number of factors including the inconvenience created, difficulty to reduce the risk, utility of the activity, general practice of others and the character of the neighbourhood.

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