The Supreme Court of Canada, after hearing counsel for both parties, refused the motion with costs.
Co. Geo. F. Henderson K.C. for motion.
S. Clark contra.
THE BOARD OF
TRUSTEES
OF
THE LETHBRIDGE NORTHERN
APPELLANT; IRRIGATION DISTRICT (DEFEND- Ma1 *May ANT) ................................
*Oct. 5. AND
HENRY FREDERICK MAUNSELL
R
AND OTHERS (PLAINTIFFS).......
ESON.E ON APPEAL FROM THE APPELLATE DIVISION OF THE SUPREME COURT OF ALBERTA
Irrigation-Seepage-Flooding of land in vicinity-Liability of irrigation district board-Irrigation Districts Act, Alta. (R.S.A., 1922, c. 114)-Irrigation Act (R.S.C. 1906, c. 61)-Railway Act (D. 1919, c. 68; R.S.C. 1906, c. 87).
Defendant, a body corporate by virtue of The Irrigation Districts Act, Alta. (R.S.A. 1922, c. 114), and administering an irrigation district formed under that Act, applied under The Irrigation Act (R.S.C., 1906, c. 61, and amendments) for the water required and for authority to construct the necessary works for utilization thereof, and, having obtained this authority, constructed and maintained a main irrigation canal. At some point of the canal, not discovered, a seepage occurred, and by underground channels the water found its way to and flooded plaintiffs' ranch (which was not contiguous to the canal).
Plaintiffs sued for damages.
Held, having regard to the provisions of The Irrigation Act, and of The Railway Act thereby made applicable, the defendant could not justify its flooding of plaintiffs' lands without compensation by claiming to have merely exercised its statutory rights without negligence; by the flooding the defendant had interfered with plaintiffs' rights over their lands, had exercised in respect thereof a veritable easement, which, as well as the right of interference, it could acquire only by following the course prescribed under The Railway Act, viz., a notice to treat and expropriation proceedings with the payment of proper compensation; no notice to treat having been given the defendant was in the position of a trespasser; the principle relied on in Hanley v. Toronto, Hamilton & Buffalo Ry. Co., Ont. L.R., 91), should be applied, and plaintiffs-were entitled to recover damages in an action at law; they were not restricted to having the damages determined by arbitration under The Railway Act; it was for defendant to initiate proceedings thereunder.
The damages awarded 'were restricted to *PRESENT:-Anglin C.J.C. and Idington, Mignault, Newcombe and Rinfret JJ.