Howarth v. Farguson et al., (2015) 315 Man.R.(2d) 201 (CA)

• Judge: Beard, Cameron and Mainella, JJ.A.
• Court: Court of Appeal (Manitoba)
• Case Date: February 11, 2015
• Jurisdiction: Manitoba
• Citations: (2015), 315 Man.R.(2d) 201 (CA);2015 MBCA 21

Howarth v. Farguson (2015), 315 Man.R.(2d) 201 (CA);

      630 W.A.C. 201

MLB headnote and full text

Temp. Cite: [2015] Man.R.(2d) TBEd. MR.010

Heidi Howarth and Scott Howarth (applicants/appellants) v. Margaret Ann Farguson, Corrie Ann Farguson and Becky Lee Farguson (respondents/respondents)

(AI 14-30-08230; 2015 MBCA 21)

Indexed As: Howarth v. Farguson et al.

Manitoba Court of Appeal

Beard, Cameron and Mainella, JJ.A.

February 11, 2015.

Summary:

The parties owned adjacent cottage properties. A survey revealed that an addition to the defendants' cottage encroached six feet onto the plaintiffs' property and the defendants' septic field was located within six inches of the property line. The plaintiffs sought an order under s. 28 of the Law of Property Act compelling the defendants to move their cottage off of the plaintiffs' property and relocate their septic tank to comply with the regulations under the Environment Act.

The Manitoba Court of Queen's Bench, in a decision reported at (2014), 305 Man.R.(2d) 119, dismissed the application for an order compelling the defendants to move the cottage. The defendants were granted an easement for the encroaching building's lifetime. They were to pay an annual fee of $100 to the plaintiffs for the easement's duration. The Environment Act regulations were clear that the septic tank had to be at least three metres from the property line. The defendants were ordered to comply with the regulations. The plaintiffs appealed.

The Manitoba Court of Appeal allowed the appeal in part, ordering the defendants to pay $4,400 as compensation for the encroachment from the years 2003 to 2014 and $400 per year, going forward.

Real Property - Topic 4851

Title - Boundaries - Encroachment - Relief - Compensation - The defendants' cottage encroached six feet onto the plaintiffs' property - The plaintiffs sought an order under s. 28 of the Law of Property Act compelling the defendants to move their cottage off of the plaintiffs' property - The trial judge dismissed the application for an order to move the cottage and granted the defendants an easement for the encroaching building's lifetime - They were to pay an annual fee of $100 to the plaintiffs for the easement's duration - The Manitoba Court of Appeal allowed the plaintiff's appeal in part, ordering the defendants to pay $4,400 as compensation for the encroachment from the years 2003 to 2014 and $400 per year, going forward - The trial judge erred on the question of compensation, making no reference to the principle of proportionality - He also failed to compensate the plaintiffs for the historic trespass and had not explained why he ordered compensation far below what was suggested by both parties - The errors required correction - The trespass to the plaintiffs' property was "nothing more than a minor inconvenience" - The encroachment did not materially affect the property's value - The suggested compensation of $400 per year was reasonable - Given that the defendants had made efforts to extend the life of the cottage by, for example, reshingling the roof, there was no justification for capping the amount of total compensation.

Real Property - Topic 7325

Easements, licences and prescriptive rights - Rights and duties of servient owner - Right to compensation arising out of use of easement - [See Real Property - Topic 4851 ].

Cases Noticed:

Taylor v. Hoskin (2006), 222 B.C.A.C. 86; 368 W.A.C. 86; 2006 BCCA 39, refd to. [para. 4].

Gainer v. Widsten (2006), 233 B.C.A.C. 313; 386 W.A.C. 313; 2006 BCCA 580, refd to. [para. 4].

Towers Ltd. v. Quinton's Cleaners Ltd. et al. (2009), 245 Man.R.(2d) 70; 466 W.A.C. 70; 2009 MBCA 81, refd to. [para. 4].

Welz v. Bady et al. (1948), 56 Man.R. 374 (C.A.), refd to. [para. 6].

Prince Rupert (City) v. Pederson et al. (1994), 50 B.C.A.C. 249; 82 W.A.C. 249 (C.A.), refd to. [para. 7].

Hrynyk v. Kaprowy (1960), 30 W.W.R.(N.S.) 433 (Man. Q.B.), refd to. [para. 7].

Squamish Indian Band et al. v. Capilano Mobile Park et al. (2012), 318 B.C.A.C. 239; 541 W.A.C. 239; 2012 BCCA 126, refd to. [para. 10].

Counsel:

J.B. Martens and A.W. Boumford, for the appellants;

D.M. Foerster, for the respondents.

This appeal was heard and determined on February 11, 2015, by Beard, Cameron and Mainella, JJ.A., of the Manitoba Court of Appeal. On February 26, 2015, Mainella, J.A., delivered the following written reasons for the court.