Q: Is there a law that windblown debris from an upwind property becomes the responsibility of the downwind owner? There are several large trees upwind from us. After every storm, branches and leaves end up on our property. We are tired of constantly cleaning up the mess but the upwind owner refuses to do anything about it.
A: Nuisance is the branch of law that deals with activities that interfere with one’s use and enjoyment of his land. Odours, smoke, noise, dust, spray drift and blowing debris all constitute nuisances. Technically, you would be entitled to make a nuisance claim against your neighbour.
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This claim could have two aspects. The first would be for the loss of enjoyment of your land that you have suffered as a result of the debris. Second, you could seek a court order, called an injunction, ordering the landowner to prevent and/or clean up debris.
The onus would be on you to pursue this kind of claim and to prove the nuisance. You would have to hire a lawyer, sue in court and advance the claim. Small claims courts can award damages but they can’t order an injunction.
While those are your rights in theory, one must be realistic. In the grand scheme of things you have to decide whether it’s worth invoking the law. Do you really want to spend time and money pursuing this in court? You might want to hire a lawyer to write the property owner reminding him about his responsibilities.
Check with your municipal council for bylaws about unsightly properties and garbage.
Different rules apply when it comes to nuisance claims against farming operations. All provinces have “right to farm” legislation that provide that a farmer who is using normal farming practices cannot be sued for nuisance. Thus an acreage owner cannot complain about dust from the neighbour’s combine.
Nuisance concerns can be taken to farm practice boards in Manitoba and Saskatchewan. These boards can determine whether the matter complained about falls outside what is considered normally accepted farm practices. They can also mediate disputes. Check with your agriculture department for information.
In Alberta, the Farmers’ Advocate Office deals with nuisance complaints and also oversees the farm practices review committee.
A future column will look at complaints against intensive livestock operations.
Don Purich is a former practising lawyer who is now involved in publishing, teaching and writing about legal issues. His columns are intended as general advice only. Individuals are encouraged to seek other opinions and/or personal counsel when dealing with legal matters.
