Sask. Water Corp. v. Scheidl (1990), 85 Sask.R. 138 (QB)
MLB headnote and full text
Saskatchewan Water Corporation (plaintiff) v. Vincent Scheidl (defendant)
(No. 1050 A.D. 1989)
Indexed As: Saskatchewan Water Corp. v. Scheidl
Saskatchewan Court of Queen’s Bench
Judicial Centre of Prince Albert
Wright, J.
July 3, 1990.
Summary:
The defendant owned land upon which an unnamed previous owner constructed a drainage ditch more than 40 years earlier. In 1984 neighbours filed a complaint of flooding with the Saskatchewan Water Corp. The Corp. investigated and made an order under s. 66 of the Water Corporation Act requiring the defendant to close the ditch. The defendant failed to do so. The Corp. undertook the work and brought an action against the defendant for the costs incurred.
The Saskatchewan Court of Queen’s Bench allowed the action.
Waters – Topic 2145
Artificial waters – Drainage ditches – Closure of – The defendant owned land upon which an unnamed previous owner constructed a drainage ditch more than 40 years earlier – In 1984, neighbours filed a complaint of flooding with the Saskatchewan Water Corp. – The Corp. investigated and ordered that the defendant close the ditch (Water Corporation Act, s. 66) – The defendant failed to do so – The Corp. undertook the work and billed the defendant – The Saskatchewan Court of Queen’s Bench held that the Corp. followed the proper procedure in closing the ditch – The Corp. was not required to expropriate the neighbours’ land (s. 18) to resolve the complaint – The owner of the land upon which the ditch was situate was the proper party to proceed against.
Waters – Topic 2146
Artificial waters – Drainage ditches – Whether natural watercourse – A drainage ditch constructed on the defendant’s land more than 40 years earlier was ordered closed by the Saskatchewan Water Corp. – The defendant claimed the ditch had evolved into a natural watercourse and should not be disturbed – The Saskatchewan Court of Queen’s Bench held that the ditch remained an artificial watercourse – Prescription was abolished in Saskatchewan upon adopting the Torrens system and, in any event, the ditch had maintained its character as a ditch and had not taken on the characteristics of a natural waterway.
Cases Noticed:
CIBC Mortgage Corporation v. Manson and Enger (1984), 32 Sask.R. 303; 9 D.L.R.(4th) 289 (C.A.), refd to. [para. 13].
Epstein v. Reymes, [1973] S.C.R. 85, dist. [para. 19].
Statutes Noticed:
Land Titles Act, R.S.S. 1978, c. L-5, sect. 72 [para. 19].
Rules of Court (Sask.), Queen’s Bench Rules, rule 549(10) [para. 10].
Water Corporation Act, R.S.S. 1978, c. W-4.1, sect. 2(p), sect. 2(q), sect. 2(r) [para. 9]; sect. 16(1)(a), sect. 16(1)(b), sect. 16(1)(c), sect. 16(1)(e), sect. 16(1)(f), sect. 16(1)(g), sect. 16(1)(j), sect. 18(1), sect. 18(4) [para. 7]; sect. 41(1), sect. 41(2) [para. 8]; sect. 65, sect. 66, sect. 67, sect. 70, sect. 74 [para. 10].
Authors and Works Noticed:
Di Castri, Registration of Title to Land, vol. 2, para. 832 [para. 19].
Counsel:
D.E. Gauley, Q.C., and S. Hamilton, for the plaintiff;
J.R. Cherkewich, for the defendant.
This action was heard before Wright, J., of the Saskatchewan Court of Queen’s Bench, Judicial Centre of Prince Albert, who delivered the following judgment on July 3, 1990.
