Caissie v. Assels,

• Jurisdiction: New Brunswick
• Judge: Riordon, J.
• Neutral Citation: 2012 NBQB 110
• Citation: (2012), 386 N.B.R.(2d) 185 (TD),2012 NBQB 110,386 NBR(2d) 185,(2012), 386 NBR(2d) 185 (TD),386 N.B.R.(2d) 185
• Date: 14 February 2012
• Court: Court of Queen's Bench of New Brunswick (Canada)

Caissie v. Assels (2012), 386 N.B.R.(2d) 185 (TD);

    386 R.N.-B.(2e) 185; 999 A.P.R. 185

MLB headnote and full text

Sommaire et texte intégral

[English language version only]

[Version en langue anglaise seulement]

.........................

Temp. Cite: [2012] N.B.R.(2d) TBEd. AP.019

Renvoi temp.: [2012] N.B.R.(2d) TBEd. AP.019

Claude Caissie and Wendy Caissie (plaintiffs) v. Grant Assels (defendant)

(N/SC/117/2011; 2012 NBQB 110; 2012 NBBR 110)

Indexed As: Caissie v. Assels

Répertorié: Caissie v. Assels

New Brunswick Court of Queen's Bench

Trial Division

Judicial District of Miramichi

Riordon, J.

March 29, 2012.

Summary:

Résumé:

Plaintiffs sued their neighbour, alleging trespass and claiming $30,000 for cutting down 10 trees on their property.

The New Brunswick Court of Queen's Bench, Trial Division, allowed the action and awarded the plaintiffs $1,500 in general damages, $100 for the costs of filing the action, and reasonable costs for disbursements incurred to survey the boundary line.

Damage Awards - Topic 538

Torts - Injury to land and buildings - Destruction of or damage to trees - The Caissies sued their neighbour (Assels), alleging trespass and claiming $30,000 for cutting down 10 trees on their property - The trees had not been planted, but were part of the normal vegetation in the area - The Caissies asserted that they now had a reduced privacy - Mrs. Caissie asserted that she did not feel safe anymore - They were concerned that people on the highway would be able to see their children in the back yard - The New Brunswick Court of Queen's Bench, Trial Division, concluded that the trespass was inadvertent - At the time that the trees were cut, the boundary line had not been accurately marked - All of the trees were close to the line as eventually shown by a survey - However, Assels did cut at least nine, and possibly 10, trees on the Caissies' property and was therefore liable for the damage caused by his unlawful entry onto their property - The Caissies had the onus of proving their damages - No evidence was presented to quantify the value of the wood or the trees or the damage, if any, to the land - There was no evidence of any diminution in value - The court did not think that the cutting of the trees had much effect on the property's market value - Restoration costs was not a proper determination of special damages and, in any event, there was no such evidence - The defendant's conduct was not such as to justify an award of exemplary or punitive damages - The court awarded the Caissies $1,500 in general damages, $100 for the costs of filing the actions and reasonable costs for disbursements incurred to survey the boundary line.

Damages - Topic 106

General principles - Evidence and proof - Onus of proof - [See Damage Awards - Topic 538 ].

Damages - Topic 1300

Exemplary or punitive damages - Trespass - [See Damage Awards - Topic 538 ].

Torts - Topic 3007

Trespass - Trespass to land - Cutting of trees or crops - [See Damage Awards - Topic 538 ].

Torts - Topic 3050

Trespass - Damages - General - [See Damage Awards - Topic 538 ].

Délits civils - Cote 3007

Atteinte - Intrusion à l'égard d'un bien-fonds - Abattage d'arbres ou de récoltes sur pied - [Voir Torts - Topic 3007 ].

Délits civils - Cote 3050

Atteinte - Intrusion à l'égard d'un bien-fonds - Dommages-intérêts - Généralités - [Voir Torts - Topic 3050 ].

Dommages-intérêts - Cote 106

Principes généraux - Preuve - Fardeau de la preuve - [Voir Damages - Topic 106 ].

Dommages-intérêts - Cote 1300

Dommages-intérêts exemplaires ou punitifs - Intrusion - [Voir Damages - Topic 1300 ].

Évaluation des dommages-intérêts - Cote 538

Délits civils - Préjudice aux terrains et aux bâtiments - Arbres détruits ou abîmés - [Voir Damage Awards - Topic 538 ].

Cases Noticed:

Savoie v. Mailhot (2004), 268 N.B.R.(2d) 348; 704 A.P.R. 348; 2004 NBCA 17, refd to. [para. 26].

Crawford v. Crawford, [1986] N.B.J. No. 771 (T.D.), refd to. [para. 27].

Forbes v. Griffin (1989), 99 N.B.R.(2d) 156; 250 A.P.R. 156 (T.D.), refd to. [para. 28].

Duff v. Dutkiewicz (1993), 137 N.B.R.(2d) 266; 351 A.P.R. 266 (T.D.), refd to. [para. 29].

Buckingham v. Graham (1996), 174 N.B.R.(2d) 330; 444 A.P.R. 330 (T.D.), refd to. [para. 30].

Ouellette v. Fleck (1995), 158 N.B.R.(2d) 141; 406 A.P.R. 141 (T.D.), refd to. [para. 31].

Counsel:

Avocats:

Claude Caissie and Wendy Caissie, per se;

Grant Assels, per se.

This action was heard on February 14, 2012, by Riordon, J., of the New Brunswick Court of Queen's Bench, Trial Division, Judicial District of Miramichi, who delivered the following judgment on March 29, 2012.