IN THE SUPREME COURT OF NOVA SCOTIA
Citation: Crocker v. Dubois, 2010 NSSC 279
Date: 20100716
Docket: Hfx. 274903
Registry: Halifax
Between:
Barry Paul Crocker and Theresa Marie Crocker
Plaintiffs
v.
John Lewis Dubois and Yolande Dubois
Defendants
Judge: The Honourable Justice Charles E. Haliburton
Heard: March 22, 23, 24, April 26, 27 & May 6, 2010
in Halifax, Nova Scotia
Written Decision: July 16, 2010
Counsel: Richard A. Bureau, for the plaintiffs
Rebecca L. Hiltz LeBlanc, for the defendants
By the Court:
[1] The Defendants had erected a fence dividing their property from that of the Plaintiffs. The fence ended approximately two feet from the shoreline of First Lake in Lower Sackville. The Plaintiff, Barry Crocker (Crocker), with the help of a friend extended that fence a couple of feet beyond the shoreline or “Ordinary High Water” (OHW) line. The Defendant , John Dubois (Dubois), with a chain saw cut off the post or posts supporting that extension and deposited it on the Plaintiff’s property. That was the genesis of this action in trespass.
[2] The Defendants live at 71 Sandrick Avenue on a property they acquired in 1979. The area at that time was not extensively developed and over time they were able to add to the frontage they owned on First Lake. As the street developed and more houses were added the Plaintiffs arrived in 1994. Their lot abutting the Dubois extended to the lake. I understand their house had been occupied by the original developer of that immediate area and in any event they, like the Defendants, have an extensive amount of shore frontage. Initially the parties were friendly with mutual sharing of the land adjacent to the lake, bon fires, etc. As time passed their interests diverged. The Plaintiffs used their shore front area for games and to entertain neighbours. They wanted to build a sun deck and a dock and other comforts. The Defendants on the other hand participate in an organization whose objective is to retain the property around the lake in its natural state so their property is ungroomed and their shoreline is fringed with natural bushes. Dubois testified that he is on the executive of “The Lake Management Committee”. A committee objective is to buffer the lake from development. Their evidence was that some of the night time parties hosted by the Plaintiffs resulted in garbage of one kind or another ending up on their property. As a result, they erected the fence to divide the properties. This prompted a survey by the Plaintiffs and the fence proved to be on the Crocker’s property. Dubois removed and reconstructed the fence on his own side of the line and relations between the parties improved.
[3] Then on June 6, 2006 Crocker and a friend added an extension of several feet to the fence. This addition was on the Dubois property but the evidence shows that it extended off the property on to an area below the OHW of the lake. Aside from the fact that this was a trespass by Crocker on the Dubois property it had the consequence of interfering with their customary use of their lake frontage. This interference was significant to them, because the boundary line approaches the shore at a 45 degree angle so that the line projects across the Dubois frontage. At the same time this addition prevented access to the “swimming rock”. This is a large flat rock very close to the shore which would be divided by a projection of the property line. It was the favoured swimming spot for the Dubois, their family and friends for many years and served as a sometimes mooring for their floating boat dock.
[4] After Dubois sawed off the fence extension, Crocker reconstructed it but this time just inside his own property line, some three to six inches off the previous line. The effect with regard to lake access was the same. The response from Dubois was to remove this new iteration. Having done so, he then installed a section of plywood across, and perpendicular, to the end of the original fence. The plywood incidentally extended a couple feet onto the Crocker side of the line. Crocker removed the plywood and Dubois replaced it once again. Eventually Dubois substituted what appears to be a chainlink and wrought iron apparatus for the plywood, so that the perpendicular part of the structure was fixed at what Dubois believed to be the OHW. The events as I have recited them transpired between June 6 of 2006 and October 11 when the chainlink structure was erected. It remained in place for some three and a half years.
[5] Trespasses against the other were committed by both men. Police were called because of disputes a number of times. Municipal and Provincial authorities visited the site in response to reciprocal complaints. In the run up to the trial dates in 2010 Dubois was persuaded to remove the October 2006 addition to his fence. None of these authorities saw fit to intervene in any relevant way.
REMEDIES SOUGHT:
[6] In the Statement of Claim the Plaintiffs seek an injunction which would restrain the Defendants from re-erecting their addition to the fence, or any other intrusion in their property. They also seek the cost of replacing the fence that Dubois removed, special, general and punitive damages and costs. At the opening of trial the Defendant specifically agreed to some form of injunction that would restrain both parties from interfering with or trespassing on the property of the other.
[7] Neither party disputes the location of the boundary line between their properties as established by the location certificate dated August 1, 1997 by Nova Scotia land surveyor Joseph Alcorn. However, what is not resolved is the intersection of that line with the shoreline of the lake. The location of that shoreline was the focus of the trial.
THE EVIDENCE:
[8] Three independent witnesses were called with respect to the location of OHW. They were Colleen Ann Smith (Smith), of the Department of Environment, Bruce Douglas Lohnes (Lohnes) of the Department of Natural Resources, both called by the Plaintiff and Chris MacLean (MacLean), also of the Department of Natural Resources, called on behalf of the Defence. Notwithstanding the representations of counsel with respect to differences in the opinions offered by these officials I have concluded that their evidence was fairly consistent, particularly so with respect to the evidence of Smith and MacLean. Smith was, at the relevant time, employed by the Provincial Department of Environment. She holds a B.Sc. in environmental studies, specializing in water resources from Acadia University. In her job at that time it was her daily duty to investigate complaints relating to water courses, infill, culverts, silting. Her tasks related to the preservation of the integrity of water courses. As a result of a complaint from Dubois she had conducted an investigation of the Crocker property on May 31, 2006. She testified that she found evidence of infilling. She confirmed that small rocks had been added to the shoreline thus extending it. She also confirmed that the fence extended to a point between OHW and low water, within “Crown lands”. She issued an “environmental warning report” with respect to these infractions, and another because a wharf had been constructed without a prior approval. In her opinion these infractions did not threaten the integrity of the environment so she did not order their removal or any remediation. She also found an infraction which related to the construction of a deck extending out into the lake as a permanent structure. With reference to that she did require Crocker to take remedial action; but that is not relevant to the matters at issue between the parties. She provided the parties with her opinion that the OHW was located approximately two feet from the end of the original wooden fence which Dubois had constructed. She made that determination on the basis of the “staining” of the rocks and the “nature of the vegetation”.
[9] The second witness called by the Plaintiff, Bruce Lohnes is presently the area supervisor for the Department of Natural Resources. He testified that the “flat rock”, a particular location focussed upon by the parties, was above the OHW. Lohnes expressed some modesty about his own personal knowledge regarding how OHW is to be located and conceded that he might defer to other staff within his department “depending on who the staff is”. I found his evidence less definitive than the other two officials as to the application of the definition of OHW and the circumstances existing at this particular location. It is my view that his conclusions were not as reliable as those of Smith and the Defence witness, MacLean.
[10] Chris MacLean is a conservation officer with Deparment of Natural Resources. He visited this locale on the 16th of March, 2010 in response to a complaint from Dubois about Crocker’s encroachment on Crown lands. His job involves investigation of dumping, the erection of structures and/or other activities on Crown lands. Doing so involves an assessment of the boundaries of water courses or shorelines. He testified that he advised Dubois to remove his chainlink and wrought iron structure in the hope of de-escalating the strain between the neighbours. MacLean brought with him Exhibit 9 which contains four photographs of the area in question and in the course of his testimony he drew a line along what he considered to be the OHW. On the first of those photos he identified a piece of rebar steel driven into the ground which he said would be “just above ordinary high water”. His evidence was helpful in relating rocks identified in a photograph in Exhibit 4 numbered 0550 and Exhibit 8. MacLean found that the chain link structure placed there by Dubois was above the OHW.
[11] The evidence of the Crockers, establishes that they acquired their property on the 20th of November 1994. Their property is described in the deed as running “to the ordinary high water mark of First Lake”. The next summer they began “clearing” the property. Crocker observed that Dubois “has done nothing” with his shore front. The Crockers had two children aged four and seven when they moved in. Their testimony made it clear that their desired use of water front property was different from that of the Dubois’. They spoke of the fence being built by Dubois and that it was initially constructed on their property and had to be moved a few inches as a result of a location survey they had done. They then extended the fence in order to keep their dog off the Dubois property and Crocker said “I didn’t want to look in his back yard”. He testified that before his fence extension was completed the posts were cut off with a chain saw by Dubois. Crocker rebuilt it and two days later it was again removed. They spoke of the complaint which had been lodged by Dubois and the investigation by Smith; and the steps they had been required to take to comply with her orders. On July 4th of 2006 Dubois had installed a sheet of plywood perpendicular to his fence and overhanging the Crocker property. After three weeks Crocker took it down but Dubois put it up again. They were in the process of taking it down again a few days later when Dubois came around the fence carrying a stick (this would be August) and subsequently Dubois erected the chainlink structure. Mrs. Crocker testified that she could look into the Dubois’ back yard from the new dock her husband had constructed. She said she wanted the fence to obscure that view as well as to keep their dog from wandering onto Dubois property. She believed their fence had been removed four times by Dubois.
[12] Crocker did concede in cross examination that the partying activities on their property had gotten out of hand at one point and had to be toned down.
[13] Three members of the Dubois family testified. The Defendants John and Yolande gave evidence as did their daughter Danielle. Most poignant was the evidence of Danielle. She spoke of the use she made of the wooded area between their home and the lake while she was a growing girl. She recalled tenting in this grassy “campground like” area. She played in the area, swam from the “swimming rock” with her friends. The swimming rock was referred to frequently in the evidence of the Dubois’. It is a large flat rock adjacent to the shoreline and separating it from deep water on the other side of the rock. Danielle was older than the Crocker children and had “baby sat” for the Crockers when they moved to the area; but her use of the swimming rock terminated when as a teenager, she and her friends were confronted by Crocker ordering them off his property.
[14] Dubois met the Crockers the summer following their arrival in the community. Their properties abutted on the shoreline. His testimony was that he and the Crockers were initially friendly. With his chain saw he assisted in some clearing of their property. They shared beers and campfires. He said he consented to Crocker tying his speed boat to his floating wharf which in turn was moored by the “swimming rock”. However as time went by the relationship cooled when he felt that Crockers had too many people visiting their property; too many parties; partiers trespassing on his property and taking firewood for their bon fires; and leaving broken bottles behind. He erected a page wire fence to mark his property which prompted Crocker to have a surveyor set a line. It turned out that Dubois was a few inches over the line. The fence, by this time constructed of wood, was relocated in 1997 to be within the Dubois boundary. Dubois testified that Crocker insisted that the surveyor had placed a survey marker below the OHW marking the corner of his property. The effect of this was to extend the line into the lake. Accepting that extension of the property line would prevent the Dubois access to the swimming rock, except by crossing what Crocker now claimed to be his land. In early June 2006, Crocker and a friend began erecting an extension to the Dubois fence six to eight feet in length. Dubois said it extended to the boulder depicted in photograph 0557 of Exhibit 4. Dubois cut off the posts holding it with his chain saw while Crocker stood by. In his evidence Dubois conceded that he had twice taken down the fence and delivered it onto Crocker property. He admitted that on one occasion when Crocker and a friend were removing the plywood that Dubois had installed, he came to the scene carrying a baseball bat sized stick; but he denies that he was on the Crocker land at that time because he was standing on a rock separated from the shore. He denies that the plywood erected at the end of the fence or the chainlink and wrought iron structure that he later placed there, encroached on Crocker property.
[15] Yolande Dubois for her part had very little to do with the dispute between the two men. She spoke of the many activities her family enjoyed in and about the area of this disputed property and the “swimming rock” before any problems arose with their neighbour. They accessed the lake by that route for swimming, water skiing and skating in winter. They used, what is in effect their back yard, for camping. They had a children’s swing and a fire pit. She reiterated her husband’s observations about the Crocker invitees being too noisy and disrespectful of Dubois’ property which was raided to cut saplings for weiner roasts. She observed that the Crocker’s “fence extension” totally cut us off from the swimming rock”. She recalled a rather bizarre incident when Crocker had placed a line of pebbles on top of the swimming rock telling her that she could use one side of it. Whether or not those pebbles were thought to be an extension of the property line is not clear to me.
FINDINGS:
[16] My conclusion is that the line drawn by MacLean on photograph A appearing in Exhibit 9 is the best evidence before the court as to the location of OHW. I think that his conclusion is consistent with the conclusion of Smith who was the first departmental person to be involved. Smith and MacLean, as well as Lohnes, all referred to the appropriate definition. In Smith’s initial report she located OHW to be approximately two feet beyond the end of the Dubois fence. That seems to be consistent with the line drawn by MacLean on the photo on Exhibit 9. It is not an easy thing to determine the location of the OHW or the shore or the bank as witnessed by the fact that text books have been written on the subject. In the book Water Law in Canada authored by G. V. LaForest at the instance of the Atlantic Development Board published 1973 I find the following quotation at page 247 which I think provides some insight into the difficulty of fixing a definite line . . .
The prevailing view is that the term shore is inappropriate to non-tide water. “Banks” is the preferred terminology, and a river or lake therefore consists of three parts: the waters, the bed and the banks. For this purpose the banks are the natural elevations that contain the waters when they rise out of the bed, the bed being the area usually covered by water. And despite some cases to the contrary, it would appear that the line of demarcation between the bed and the bank is to be found by an examination of the soil and vegetation, and not by taking the high or low water marks or the medium stage of the water.
(my emphasis)
It is self evident that a rock surrounded by water at the OHW level is by definition “below OHW”. It is property belonging to the Crown and not to the adjacent land owner. The quote from LaForest suggests to me that various terms may give rise to confusion without a difference. Is it possible there is a difference between property which runs to “the shore” and property which runs to OHW? Whatever the case may be there is little practical difference in the present situation if one refers to the photographs in considering the evidence which we heard. Above MacLean’s line, the vegetation is distinctly different from that below it. Smith referred to the coloration of the rocks (staining, lichen). The photographs in Exhibit 9 provide evidence to support that opinion. Furthermore there is erosion evident in the photographs suggesting that water lapping on the shore at the level of the line drawn by MacLean has undermined the grassy area above leaving exposed soil as evidence of the high water action. For the purposes of this lawsuit I find that the rebar at the base of the chainlink fence as depicted in Exhibit 9 is, for all intents and purposes, the end of the boundary line between the two parties.
[17] As to whether or not Dubois has trespassed on the Crocker property; that is admitted in at least the two instances when he removed the Crocker fence and carried it onto the Crocker property. I find there was a further trespass when he erected the plywood and then the chainlink gate or fence at the end of his wooden fence. The photograph in Exhibit 9 taken at 9:58:10 a.m. clearly shows the fence extending over the Crocker line.
REMEDIES:
[18] It is the Crockers who have sued the Dubois in this action. While there seem to be acts of trespass by Crocker, at least on the initial extension of the fence there is no action taken by Dubois. No trespass has been proven on the part of Yolande Dubois and accordingly the action against her fails.
[19] With respect to the trespasses committed by Dubois, his actions in removing the Crocker fence extension is not disputed and indeed, as noted earlier, his counsel was prepared to admit some acts of trespass at the opening of the trial. There is one allegation of trespass which would have more significance than any other if it were proven. That is the occasion when Dubois arrived on the scene arguably prepared for a fight and carrying a stick. Whether or not he remained on “Crown land” is a real question. The evidence of the Crockers and their neighbour who testified was that Dubois was on Crocker property. The evidence of Dubois and his daughter was that he remained on a rock which is one I have now determined to be below ordinary high water. There was a good deal of excitement on that occasion and recollections may very well be cloudy. It was apparently neighbours across the cove who had alerted Dubois to Crocker’s activity that day. Dubois came to the fence because he had been notified. His presence was anticipated as witnessed by the fact that Mrs. Crocker had brought her camera. I accept the suggestion of the Defence that the camera was there for the purpose of recording any untoward developments. It did in fact record an image of Dubois standing on the rock as he claims. The Plaintiffs having advanced the claim of trespass on that occasion the onus is upon them to establish that Dubois did actually enter upon their property that day with a reasonable degree of certainty. I find it has not been so established.
[20] The Plaintiffs seek an injunction restraining Dubois from entering upon their lands. They seek an order permitting the extension of the fence as it was originally configured when Smith first inspected. They seek damages and costs.
[21] I find that John Dubois has trespassed on the property of the Plaintiffs and an injunction prohibiting future acts of trespass by him will be ordered. This court has no authority to order that Barry Crocker be permitted to construct a fence beyond OHW and accordingly that application is denied.
[22] Counsel have referred the Court to two decisions of Nathanson J. Spearwater vs. Seaboyer [1984] N.S.J. No. 455 and Saulnier v. Bain [2006] N.S.J. No. 30 where the Judge has made interesting comments with respect to trespass and damages. In Saulnier v. Bain Nathanson J. had reviewed authorities relating to “two rules for determining the measure of damages”at paragraph 55:
. . . two rules for determining the measure of damages: a mild rule, where the trespass has been inadvertent or under a bona fide belief in title or by mere mistake; and a severe rule, to be applied where the trespass has been willful or fraudulent.
[23] While it might be suggested that the acts of trespass established here were “willful”, nonetheless as in Spearwater v. Seaboyer “no real harm has been established”. It is appropriate in my view that the Defendant be ordered to pay general damages in the amount of one dollar ($1.00).
[24] Special damages were claimed with respect to the anticipated cost of replacing the fence. An estimate was put forth to support a claim for the cost of constructing a fence eight to twelve feet in length. Such a fence would not be a replacement but would be something entirely different and constructed by professional fence builders. The fence which Crocker had built was one which he did himself at minimal cost. Indeed he already accepted compensation of forty dollars for the destruction of his original fence extension. An order for special damages cannot be made on the basis of a speculative cost and accordingly that claim is denied.
[25] In the overall context of this unfortunate case and bearing in mind the rather mixed results for the plaintiff, and in spite of the fact that all or parts of five days were spent in trial, I propose to exercise my discretion to fix the costs to be awarded. The Plaintiffs will have their costs in the amount of five thousand dollars ($5,000.00).
Haliburton J.