Q: I have been reading about cases where one farmer diverts water flow from his land so it goes onto his neighbour’s land. Is there anything in the law that can be done about that?
A: Control and diversion of water is an important, and growing, legal issue. As environmental concerns rise and water shortages loom, governments and interest groups have taken more of an interest in water. This has resulted in some changes in the law.
In contrast, the use and enjoyment of land is an age-old legal and social concept. In Anglo-Canadian common law, the protection of landowners’ rights has been enshrined for centuries.
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How do these old and new rules work together to deal with the problem you raise?
If someone is having difficulty with drainage and believes it is due to a neighbour’s actions, his first and best course of action is to go to the authorities. Most provincial governments have departments that deal with environmental issues, and specifically water control. In my province, the Saskatchewan Watershed Authority ensures safe and proper use of water located within the province.
As well, depending on what the adjoining farmer is doing, the federal Department of Fisheries and Oceans may have an interest. If
a river is being dammed or diverted, the department may intervene.
Governmental departments have the ability to investigate water use and misuse, and can often go on land to do so, when an individual would be a trespasser. These departments can make findings of wrongdoing and give orders to the landowner to fix the problem. If the landowner neglects or refuses to fix it, the government can do so and charge the owner.
As well, some regulatory offences are created so the offending farmer might also face charges over his misconduct.
There are also civil remedies. In common law, the doctrine of nuisance has been developed over many years. Nuisance has been described as “the unlawful interference with a person’s use or enjoyment of land, or some right over, or in connection with it” and as
“an invasion of an occupier’s interest in the beneficial use and enjoyment of land.”
Two types of nuisance arise. The first is where there is actual physical damage to the adjoining land or improvements. Flooding is an example. The second is where one’s use and enjoyment is impaired, such as a neighbour building a factory and the smoke and pollutants prevent you from enjoying your property.
A farmer in this position may also have a claim in trespass. To launch a civil suit in trespass, the offending landowner would have had to have acted directly, if not intentionally. A farmer who floods a neighbour’s land unintentionally, but through a direct entry onto the neighbouring land, and causes damage, may be sued.
As well, most provinces have specific environmental protection legislation. This should be a powerful litigation tool. The definitions of pollutant in these laws are broad as are the remedies to injured landowners. There are cases saying that water can be a pollutant within the meaning of this law, depending on how it was used, how it escaped and what damage was done.
Farmers faced with damage to their land or buildings from the flow of water or other substances from adjoining land have a good range of remedies to obtain compensation. Most neighbours work out these issues with one another, but some will not. If you are faced with this unfortunate and awkward position, consult the appropriate government departments and/or a lawyer as to your rights.
Rick Danyliuk is a practising lawyer in Saskatoon with McDougall Gauley LLP. He also has experience in 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.
