Pierce v. Rural Municipality of Winchester

The appellant brought an action for damage by flooding of his lands caused by the non-repair and obstruction of a drain or ditch situated within the territorial limits of the respondent municipality and par- 'tially built with the aid of the government of the province. Section 740 of the Muiticipal Act provides that " it shall be the duty of each municipality through which, or through any part of which, any drain, constructed wholly or partially by or at the expense of the Government of Manitoba, runs to keep such drain, or that portion of such drain, within its boundaries, properly cleaned out and in repair." Held, affirming the judgment of the Court of Appeal Man. R. ), Newcombe and Cannon JJ. dissenting, that section 740 was intended merely to make it clear that, as between the government of the province and the municipality, the duty was on the latter to keep such drains in repair, and that it was not intended to make the municipality liable to an action for damage caused to the owner of adjacent land by the municipality's failure to perform that duty.

The improvemenit or protection against flooding of adjacent land was not a purpose of the construction of the ditch, but the sole object of such construction was to facilitate the maintenance and use by travellers of the roadway. Thus the appellant, as owner, was not a person for whose benefit the duty of maintaining the ditch in repair was imposed on -the municipality by section 740, and he cannot therefore maintain *PRESENT:-Anglin CJ.C. and Newcombe, Rinfret, Smith and cannon JJ.

an action for damages against the municipality based solely upon its nonfeasance or neglect to perform a duty imposed by that section. City of Vancouver v. McPhelan, 45 Can. S.C.R. 194, at 209, applied. Per Newcombe J. dissenting.-Prima facie, a proprietor, whose lands are RuRAL flooded by reason of the neglect of the municipality to discharge its statutory duty to clear the drain, is entitled, in the absence of any =TER expression or necessary implication of the statute to the contrary, to recover from the municipality the consequential damages. The burden is upon the respondent to displace the ordinary and natural interpretation and effect of section 740; and no provision of the statute has been cited to justify the conclusion that section 740 was meant only to relieve the province of a possible liability against which it was desirous to protect itself.

.-Section 471 of the Municipal Act provides that ",the council shall not permit the damming up, obstruction of * * * any ditch in or upon any road * * * or elsewhere in the municipality"; and section 472 gives a recourse for damage alleged to have been done to a property in consequence of a violation of section 471. Therefore the appellant was entitled to recover damages to his property in consequence of a violation by the respondent of the provisions of section 471 and also of section 740 of the Municipal Act. That statute, expressly or by implication, does not exclude the right of action presently exercised by the appellant under these sections, section 472 merely creating an additional recourse.

APPEAL from the decision of the Court of Appeal for Manitoba (1), reversing the judgment of the trial judge, Armstrong C.C.J. (1), and dismissing the appellant's action for damages caused by the flooding of his land. The material facts of the case and the questions at issue are stated in the above head-note and in the judgment now reported.

The judgment. of the majority of the court (Anglin C.J.C. and Rinfret and Smith JJ.) was delivered by ANGLIN C.J.C.-We are of the opinion that this appeal fails and must be dismissed with costs, substantially for the reasons given by Mr. Justice Fullerton.

The improvement, or protection against flooding, of adjacent lands was not, in any sense, a purpose of the construction of the ditch in question. It was found by the courts below that the object (no doubt, they meant the sole object) of such construction was to facilitate the main- (1) (1930) 39 Man. R. 132; [19301 2 W.W.R. 752.

tenance and use by travellers of the roadway leading to the nearby town. That being so, it cannot be said that the plaintiff, as owner of adjacent lands, which he alleged to have been flooded in consequence of failure to keep in repair the ditch in question, is a person for whose benefit the duty of maintaining the ditch in repair was imposed on the cJ.c.

municipality by section 740 of the Municipal Act, notwithstanding the fact that the Manitoba Government had contributed to the expense of its construction. As indicated in City of Vancouver v. McPhalen (1), he, therefore, cannot maintain an action for damages against the municipality based solely upon its nonfeasance or neglect to perform a duty imposed by section 740. An analogous principle underlies the discussion of the case of The John Goodison Thresher Co. v. Township of McNab (2).

Section 471-the only other section invoked by the appellant-provides for the case of mis-feasance or of the noncompletion of a work by a municipality. (The word "permit" in that section, having regard to its context, should be read as meaning " give permission for," i.e., " actively sanction " not merely " passively allow.")

The facts in evidence in the case now before us do not bring it within section 471; nor is there any finding that would justify this appeal under that section.

Reference was also made in the course of the argument to section 625, in addition to section 624, both of which are mentioned by Fullerton J.A., towards the close of his judgment, as indicating the practice of the legislature of Manitoba, when intending to confer a right of action for nonfeasance by a municipality, to do so in explicit terms. Of course, the proviso of section 624 has no application to the present case, because, here, the overflow of water was not occasioned by ice or snow obstructions in the ditch, or by reason of unusual rainfalls. Nor has section 625 any application to the case at bar, because it has to do entirely with keeping in repair public roads, streets, bridges and highways and does not concern the overflow of water in ditches by reason of non-repair or otherwise. In both sections, however, the liability of the municipality for non-repair upon the works therein specified is recognized and a right of action is impliedly conferred in section 624, and explicitly conferred in section 625, upon the persons aggrieved by a non-performance of the duty of repair.

J. (dissenting). -By judgment of the County Court of Deloraine, Manitoba, the plaintiff recovered damages from the defendant municipality for the flooding of his lands, caused by the overflow of a drain constructed thereon by and within the limits of the municipality with the aid of the Government of the province.

Section 740 of the Municipal Act, R.S.M., 1913, c. 133, as amended, provides that

The majority of the Court of Appeal was of the opinion that this enactment did not operate for the benefit of the plaintiff or other proprietors in the vicinity, but that the purpose of the drain was to enable the defendant municipality to make roads in a low-lying district, and that, although, incidentally, it had the effect, while properly maintained, of draining the plaintiff's land and so improving it, the intent of the legislative provision was, nevertheless, merely to declare that, as between the Government and the municipality, the duty to repair fell to the municipality, and not to the Government; and that it was not intended to impose liability upon the municipality to a proprietor who had suffered damages by the flooding of his land, consequent upon the natural clogging of the ditch which it was the duty of the municipality to prevent; this view, it is said, is confirmed by sections 624 and 625 of the Municipal Act respecting public roads, by which it is not only provided that the roads shall be kept in repair by the municipality within which they lie, but expressly, that, for default in keeping the roads in repair, the municipality shall

But I am not satisfied with that interpretation, nor to reverse the decision of the learned County Court Judge. It is possible of course to speculate as to legislative motives in most cases depending upon the application or interpretation of statutes which come to be determined; but the meaning must be ascertained by interpreting the language which the legislature has used, not by substituting a different expression. It is more likely, I think, that the legislature would provide a sanction for the upkeep of the drains to the construction of which the province had contributed than that it would use the language of section 740 for no other purpose than to deny provincial liability; and I am unable to reject the meaning, so plainly expressed, that it is the duty of the municipality to clear out the drains described. If it were for the maintenance of the road that the drain was required, the neglect to repair it would, I should have thought, be actionable negligence which could be charged by any person who, in the lawful use of the highway, suffered damages by the neglect to repair. This would seem to follow from Lord Watson's judgment in the Privy Council in Sanitary Commissioners of Gibraltar v. Orfda (1), where, referring to the Mersey Docks case (2), he quoted the rule there enunciated by Blackburn J., which met with the approval of the House of Lords, that It is true that, as to the road itself, the civil liability to answer for damages caused by non-repair, is expressly provided by sections 624 and 625 of the Municipal Act. But the question of municipal liability for mere non-feasance in the maintenance of highways and bridges had been much agitated in Canada; and it had been viewed as an exception from the general law, for reasons which are to be extracted from a long line of cases, early examples of which include Thomas v. Sorrell (3), and the well known case of Russell v. Men of Devon (4); and the question had, for Nova Scotia at least, been determined by the judgment of the Privy Council in Municipality of Pictou v. Geldert (5), overruling a decision of this court and the provincial cases under the Municipal Act of that province. And subsequently, in this court, it was held, upon appeal from British Columbia, in the City of Vancouver v. McPhalen (6) (affirming the judgment of the Court of Appeal) that, quoting the words of the headnote,

Where a municipal corporation is guilty of negligent default by non- RVa feasance of the Statutory duty imposed upon it to keep its highways in good repair, and adequate means have been provided by statute for the

Iy OF purpose of enabling it to perform its obligations in that respect (v.g. 64 Vict., ch. 54 B.C.), persons suffering injuries in consequence of such NewcombeJ. omission may maintain civil actions against the corporation to recover compensation in damages, although no such right of sotion has been expressly provided for by statute, unless something in the statute itself or in the circumstances in which it was ennmdted justifies the inference that no such right of action was to be conferred.

Per Fitzpatrick, CJ., and Duff, J.-The common law obligation under which the inhabitants of parishes, in England, through which highways passed were responsible for their repair has no application in the province of British Columbia.

It was therefore very natural that in Manitoba they should introduce special provisions with regard to the highways and bridges; but the reasons did not exist for any express declaration of civil liability as to the ditches which did not form part of the roads; and as to these I would not draw any inference of an intention to exempt the municipality from liability for flooding caused by the neglect of its statutory duty to repair.

The question therefore is, whether the Assembly, in enacting section 740 of the Municipal Act, expressed, as it is, without any qualification, has shewn an intention to exclude the proprietors of contiguous lands from the benefit of its general provisions; and the answer, I think, is to be found in the dissenting judgment of Blackburn, J., in Coe v. Wise

The majority was reversed by the Exchequer Chamber

(2), which maintained the action for the reasons stated by

Blackburn, J., to the effect that in view of then recent decisions in Gibbs v. Trustees of Liverpool Docks

(3), and Mersey Docks Board v. Penhallow (4), the enquiry was reduced to one question, namely, whether the statute had imposed on the Drainage Commissioners a duty to take due care that the sluice was maintained as unqualifiedly as the duty which the law cast upon the Mersey Docks

Board to take care that their docks were reasonably safe.

He quoted the statute and proceeded to say that

Nothing has been pointed out on the argument, and I have not myself discovered anything to qualify this enactment, which certainly seems to

(1) (1864) 5 B. & S. 464, at 465.

(2) (1866) L.R. 1 Q.B. 711.

(3) (1858) 3 H. & N. 164.

(4) (1861) 7 H. & N. 329.

My conclusion therefore is that, prima facie, a proprietor whose lands are flooded by reason of the neglect of the municipality to discharge its statutory duty of clearing the drain would, in the absence of any expression or necessary implication of the statute to the contrary, be entitled to recover from the municipality the consequential damages; and I see no reason why that intention should be regarded as improbable. The burden is upon the municipality to displace the ordinary and natural interpretation of the clause which creates the duty; and our attention has not been called to any provision of the statute to justify the competing suggestion, which seems to rest upon nothing more real than conjecture, that the clause in question was meant only to relieve the province of a possible liability against which it was desirous to protect itself.

The argument by which it is sought to limit the application of the statute by reference to its headings has been held to be inadmissible in cases like this where the enactment is clear. But if the headings may be invoked, it should be observed that section 740, along with the two next preceding sections, is itself included in a separate group led by the words " Protection of Property "-an introduction not inapt for a clause intended to impose a duty of care to prevent the flooding of property.

I would allow the appeal and restore the trial judgment, with costs, both in this court and in the Court of Appeal. J. (dissenting).-Under section 471 of the Municipal Act, being chapter 133 of the Revised Statutes of Manitoba, 1913, the council of any municipality must make full and adequate provision for conveying off the water and preventing its lodgment on any place, or the overflow thereof on contiguous lands; and, accordingly, Section 472 gives a recourse for damage alleged to have been done to the property of an individual in consequence OF of a violation of section 471.

Moreover, under section 740, the municipality had the duty to keep properly cleaned out and in repair this drain which had been constructed and reconstructed partially at the expense of the government of Manitoba.

The above statutory duty being imposed, in my opinion, on the respondent, for the benefit of individual landowners like the appellant, the following questions must be answered:

The answer must be in the affirmative, in view of the findings of the trial judge and the uncontradicted evidence of the plaintiff.

I reach the conclusion that the statute contemplates the conveying off of the water and preventing its lodgment or the overflow thereof on contiguous land; the damages claimed by the plaintiff resulted to his property from the very mischief mentioned in the above section.

My answer is in the negative. Section 472 creates an additional recourse, but does not do away with the jurisdiction of the ordinary courts to enable an individual to recover damages to his property in consequence of a violation by a municipality of the provisions of sections 471 and 740 of this statute.

Appeal dismissed with costs.