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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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