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Denault v. Barclay
Decision date: 2000-11-24
Court: British Columbia Expropriation Compensation Board
Cited: [2000] EXLAW 331; (2000), 71 L.C.R. 185
Reviewer: J. Bruce Melville
Interest: none

A long festering dispute between neighbours in Kaslo, British Columbia, has reached the Expropriation Compensation Board. The issue involves a water pipeline easement over property owned by Winston and Mary Barclay which benefits the property of a neighbour, Eugene Denault.

A 10 foot wide water pipeline easement over the Barclay property for the benefit of the Denault property has existed for decades and was negotiated under previous ownership. Denault holds conditional water licences issued under the Water Act. The Denault property obtains water from Curle Brook at a point located on the land of a third party adjacent to the Barclays. The water runs from the intake to the Denault property through a pipe buried under the Barclay property.

The dispute arose more than six years ago when the Barclays objected to the frequency with which Denault entered their property to inspect his pipeline. There was evidence that Denault's inspections occurred at least once a week and without advance notice to the Barclays. This dispute led to court action in 1994 that resulted in an order modifying the terms of the easement. The modified easement limited Denault's right to inspect the pipeline to one day per month.

The dispute heated up again earlier this year when Denault commenced action under the Water Act to expropriate a widened easement area over the Barclay property. Denault alleged that his age and health made it necessary for him to construct a road and bridge on the Barclay property to allow him to use a vehicle to inspect his pipeline and maintain the water intake. The expropriated easement would expand the width of the easement to 15 feet.

As the Water Act requires, Denault made application to the Expropriation Compensation Board for an order determining the nature and terms of the easement to be expropriated. The Barclays responded by applying for an order dismissing Denault's application on the basis that he was really seeking to re-open an issue that had already been resolved against him in the earlier court proceedings. The Board concluded that the previous court proceedings did not involve a Water Act expropriation so the Board was not prevented from considering Denault's expropriation. The decision appears to be correct.

The Board was not required to determine the nature and terms of the easement to be expropriated on this application. However the Board posed the question whether Denault's health and personal circumstances could have any bearing on the nature and terms of any easement which might be required.

British Columbia Water Act expropriations are not conducted under the procedures set out in the Expropriation Act. Instead, a simplified set of procedures is provided in the regulations. One of the differences between the two is that under the Water Act there is no requirement for prior approval of an expropriation by a separate politically accountable body.

An obvious question posed by the Denault expropriation is what justification could exist for an expanded easement when there is no proposal to expand the capacity of the existing water system. However, it appears that the Board may not have jurisdiction to decide whether an easement is reasonably required in these circumstances. The regulations permit it to enquire only into the nature and terms of the proposed easement. The decision to expropriate rests entirely with the licensee. Given the facts of this case, another question which should be asked is whether there can be any justification for exempting Water Act expropriations from the procedures in the Expropriation Act. The present system clearly invites similar disputes.

Although Denault was successful on this particular round with his neighbours, the neighbours' complaint nevertheless appears to have merit. The Water Act proceedings have allowed Denault to reopen the issue and perhaps circumvent the restrictions imposed by the earlier court order. This result would not likely have occurred if a regulatory body was given the power to approve the expropriation beforehand.

Aside from the interesting legal questions this case raises, the reviewer asks whether this particular water system actually requires the attention the owner has lavished upon it. It is quite likely that many larger community water systems do not get as much care and attention as this one does. The reviewer suspects that an engineering solution could easily be devised that would avoid the need for constant maintenance.

Counsel for Denault was E. Sigurd Ruud of Rossland. The Barclays were represented by Thomas R. Humphries of Kaslo.

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