The Rural Municipality of Bifrost v. Stadnick

J.-The appeal concerns the right of the respondent to recover damages due to the flooding of her lands in 1921, 1922 and 1923. She is the owner of the S.E. quarter section of sec. 26-22-2 within the municipality of Bifrost. Past the east boundary of the respondent's land runs a road known as the Jacobson Road, extending southward to the Icelandic River and north for a distance of about ten miles from the river.

In 1920, the appellants applied under the Good Roads Act of Manitoba for approval of an extensive scheme of road construction, including the Jacobson Road, and a branch road extending eastwardly for two miles from the Jacobson Road along the town line between townships 22 and 23. The scheme was approved and the Order in Council was passed on 1st April, 1920, which required that the roads be improved (inter alia) by draining, and the Jacob- 8.C.R.

son Road and the branch road were constructed, in the years 1920 and 1921, with appurtenant ditches, on the routes prescribed in the Order in Council.

The respondent alleges that the flooding of her property was the consequence of the negligent construction of these roads and ditches. The learned trial judge, and the majority of the Court of Appeal, agreed in the view that the appellants had negligently failed to provide an adequate outlet for the waters collected by the roads and ditches, and that to this negligence the damages complained of were due.

These findings of fact could only be successfully impugned in this court by pointing to some specific error in the courts below, vitiating the findings, and this counsel for the municipality has quite failed to do. It would serve no good purpose to discuss the evidence in detail. The appeal must be considered on the footing that the respondent's loss, owing to the flooding of her land, was due to the failure to make reasonable provision for the discharge of the surplus water collected in the roads and ditches constructed by the appellants.

On behalf of the appellants, the grounds of appeal now to be considered are, first: that the works mentioned were constructed under the authority of the Good Roads Act, 1914, and in accordance with the provisions of that Act, and, such being the case, the municipality is not responsible for any injury arising from the execution of the works, and, second: that by virtue of the provisions of the Municipal law of Manitoba, the only remedy of the respondent, if she has any, even for negligence, is to proceed to arbitration under those provisions.

As to the first of these contentions, the difficulty in the appellants' way appears to be this. In order to establish the defence based upon the allegation that the work was constructed under the authority of the Good Roads Act, it was necessary to identify the work authorized under that statute. The Order in Council, approving the decision of the Good Roads Board, in respect to certain works in the municipality, is produced, and these works include what has been referred to above as the Jacobson road and the branch road to the east. The Order in Council provided for the improvement of the roads by draining, grading and gravelling the same. But the report of the engineer, the maps, plans, drawings, profiles and specifications of the works which should have accompanied the report of the engineer, and which would shew in detail the character of the work authorized under the statute, including the measures for dealing with waters collected by the works contemplated by the scheme, which it was the duty of the Board to transmit to the Clerk of the Municipality, were not produced. In the absence of these documents, which would have afforded authentic information as to the precise nature of the work authorized, with the concomitant protective measures, if any, the learned trial judge, and the judges of the Court of Appeal, were obliged to determine as best they could, whether the flooding of the respondent's land was in truth due to works executed pursuant to the plan and approved by the Good Roads Board, and so under the authority of the statute. Facts were adduced in evidence, of more or less cogency, pointing to the conclusion, that as a part of the statutory plan, the municipality had contemplated the construction of an outlet leading from the eastern terminus of the eastern branch into a lake called Crooked Lake, and thence into Icelandic River, at a point much below the outlet actually provided.

Such an outlet would have given the most natural and effective method of freeing the roads actually constructed, and the adjacent lands from the menace of flooding.

It was in point of fact in 1923, actually put into execution. In addition to that, certain ditching constructed in the year 1923, considerably added to the accumulation of surplus water, and there is no pretence for suggesting that this ditching formed any part of the statutory scheme.

The evidence seems to indicate that the government engineer visited the works only occasionally, and that the works were really under the control of the municipality.

The learned trial judge, as well as the majority of the Court of Appeal, were convinced that the works, as actually executed, did not make reasonable provision for the escape of the water collected, and, on general principles, the appellants can only escape responsibility by shewing that the very thing which they did was that which the statute authorized.

There is no satisfactory ground for differing from the view of the courts below, that the appellants have failed to shew that their works were executed according to the plans approved.

The decision on this point, it will be observed, turns entirely upon the issue of fact. The appellants fail because they have not shewn that the injury caused by the works executed by them was caused -by a work authorized and executed according to plans approved under the provisions of the Good Roads Act. Had this been established, it would have been necessary to consider the appellants' contention that, in such circumstances, they are not answerable in an action by a plaintiff, who alleges that in consequence of the works he has suffered damage, and that his remedy, if any, must be found in some statutory provision for compensation, if there be any.

I now turn to the defence advanced by the appellants, based upon sections 634 and 684 of the Municipal Act. I have no hesitation in holding that the provision for compensation in s. 634 applies only to damages suffered by reason of diversion of " water from its original course." agree with the majority of the court below that this section has no application to flooding by surface water, and that it contemplates only a diversion of water flowing in a defined water course.

Sec. 684, which is the enactment dealing generally with the right to compensation for damages caused by municipal works, accords compensation for " damages necessarily resulting" from such works, and has no application here.

The appeal should be dismissed with costs.

Appeal dismissed with costs.