Epstein v. Reymes, [1973] SCR 85

Supreme Court of Canada

Epstein v. Reymes, [1973] S.C.R. 85

Date: 1972-06-29

Alexander Epstein and Eve Elizabeth Gilmour (Plaintiffs) Appellants;

and

Jack Reymes (Defendant) Respondent.

1972: May 8; 1972: June 29.

Present: Judson, Ritchie, Hall, Spence and Laskin JJ.

ON APPEAL FROM THE COURT OF APPEAL FOR ONTARIO.

Nuisance—Game farm operation in quiet peaceful locality—Recurring and continuing noise materially interfering with appellants’ comfort—Injunction justified.

Real property—Riparian rights—Prescription—Artificial watercourse in use over lengthy period of time—Respondent in position of lower riparian owner entitled to benefit of flow of water—Intentional interference without justification—Injunction appropriate remedy.

The plaintiff E together with one G instituted proceedings against the defendant for injunctive relief and for damages by reason of interference with and disturbance of the plaintiffs’ possession and enjoyment of their respective lands which adjoined the land of the defendant. The latter operated a game farm on his land and invited paying customers to engage in the hunting of pheasants and in trap shooting. He counterclaimed against E to enjoin interference with the flow of a subsurface stream to his land.

The trial judge allowed the claims of the respective parties for permanent injunctions but refused to award damages. An appeal by the defendant and cross-appeal by the plaintiffs resulted in a variation of the composite order enjoining the defendant from carrying on commercial hunting and trap shooting. In its place the Court of Appeal directed that upon the undertaking of the defendant to erect a barbed wire fence on that portion of his property east of that of E and north of that of G, in each case to be no closer than 300 yards from the plaintiffs’ lands, the injunction as to commercial hunting was not to apply to the area lying east and north of the fence. The injunction against trap shooting was not disturbed, and, similarly, the injunction against E was sustained.

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On E’s appeal to this Court two issues were raised. The first arose out of his submission that the order restraining commercial hunting should extend to the whole of the defendant’s property, which was the view of the trial judge. The second issue related to the injunction against interference by E with the flow of the subsurface stream to the defendant’s land. The trial judge found that “since at least 1923 the water had flowed in a clearly defined subterranean passage to the defendant’s land”, and be concluded that the defendant had established an easement in respect of this watercourse under s. 31 of The Limitations Act, R.S.O. 1960, c. 214.

Held: The appeal should be allowed in part.

The appeal in respect of the commercial hunting should be allowed, the order of the Court of Appeal set aside and the order of the trial judge restored. The order of the Court of Appeal would not remove the invasion of recurring noise from the activities of the hunters and would not keep out the birds or the dogs that were part of the game farm operation when, in flight or in chase, they approached E’s land.

As to the second point, there was a basis in prescription to support the respondent’s case by recognizing, as being implicit in the trial judge’s finding, that this artificial watercourse was originally made under such circumstances and had been so used as to give all the rights that the riparian proprietors would have had if it had been a natural stream. The Court therefore held that the respondent was in the position of a lower riparian owner entitled to have the benefit of the flow of the water to his land. Intentional interference with this benefit without justification, which was the present case, is an actionable tort and redress by injunction is an appropriate remedy.

Sutcliffe v. Booth (1863), 32 L.J.Q.B. 136; Rameshur Pershad Narain Singh v. Koonj Behari Pattuk (1887), 4 App. Cas. 121, applied; Chamber Colliery Co. v. Hopwood (1886), 38 Ch.D. 549, referred to.

APPEAL from a judgment of the Court of Appeal for Ontario varying the judgment of Houlden J. at trial. Appeal allowed in part.

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I.G. Scott, for the plaintiff, appellant, Alexander Epstein.

R.N. Starr, Q.C., for the defendant, respondent.

The judgment of the Court was delivered by

LASKIN J.—This appeal, by the plaintiff Alexander Epstein alone, arises out of proceedings which he and one Eve Elizabeth Gilmour instituted against the defendant for injunctive relief and for damages by reason of interference with and disturbance of the plaintiffs’ possession and enjoyment of their respective lands which adjoined the land of the defendant. The latter operated a game farm on his land and invited paying customers to engage in the hunting of pheasants and in trap shooting. He counterclaimed against Epstein to enjoin interference with the flow of a subsurface stream to his land.

Houlden J., in reasons which exhibited a careful assessment of the evidence, allowed the claims of the respective parties for permanent injunctions but refused to award damages. An appeal by the defendant and cross-appeal by the plaintiffs resulted in a variation of the composite order enjoining the defendant from carrying on commercial hunting and trap shooting. In its place the Ontario Court of Appeal directed that upon the undertaking of the defendant to erect a barbed wire fence on that portion of his property east of that of Epstein and north of that of Gilmour, in each case to be no closer than 300 yards from the plaintiffs’ lands, the injunction as to commercial hunting was not to apply to the area lying east and north of the fence. The injunction against trap shooting was not disturbed, and, similarly, the injunction against Epstein was sustained.

Two issues only are raised in Epstein’s appeal to this Court. The first arises out of his submission that the order restraining commercial hunting (or, to use the terms of the injunction order,

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restraining the “discharging of arms for the purposes of commercial hunting”) should extend to the whole of the defendant’s property, which was the view of the trial judge. The second issue relates to the injunction against interference by Epstein with the flow of the subsurface stream to the defendant’s land. I propose to deal with these two points in reverse order.

The two properties of the appellant Epstein and of the respondent Reymes have as their north boundaries Ontario provincial highway 401. Reymes’ property consists of 138 acres in the form of a “U” within which Epstein’s property lies. Thus, the respondent’s land abuts upon that of the appellant on its east, south and west boundaries; and, having regard to its shape, has part of its north boundary (at the bottom of the “U”) abutting on the southerly part of the appellant’s land. The Gilmour property lies to the south of that of the respondent, but that litigant, as already indicated, is not before this Court. A private road, owned by the respondent, runs northerly on his property from a township road running off Ontario provincial highway No. 2, which is an east-west road south of that property. Epstein enjoys a right of way over this private road to his land.

He bought it in 1965 as a summer, week-end and holiday residence for himself and his family. There is a swimming pool on it in front of the residence and towards its southerly boundary. Southeast of the pool is an artificial pond in which surface drainage and water from underground springs were accumulated, and the overflow was over a retaining wall so as to constitute a small waterfall. The pond had been constructed by a predecessor in title of the appellant as part of a garden development in the area which had previously been drained by means of wooden tiles which made cultivation possible. The overflow from the pond went into a ditch which ran southerly and then easterly to the southeast corner of the appellant’s property, emptying into another pond at that point.

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Part of the ditch, from its beginning at the first-mentioned pond to a distance of about 175 feet (according to a witness whose testimony was accepted by the trial judge), was open, and the remaining part was covered over so that the water ran underground to the second pond on the appellant’s land. At a point about 60 feet along the open portion there was a diversion of the flowing water by reason of a wooden box or tile so that part of the stream constituted by the ditch ran south under some cedar roots and into the respondent’s property emptying into a pond on his land. Epstein blocked this flow of water to the respondent’s land, not in the course of reasonable use of the stream but as an incident of a course of disputation between these neighbours arising from the commercial hunting and trap shooting that was permitted by the respondent on his property.

The trial judge found that “since at least 1923 the water had flowed in a clearly defined subterranean passage to the defendant’s land”, and he concluded that the defendant had established an easement in respect of this watercourse under s.31 of The Limitations Act, R.S.O. 1960, c.214. In dealing with this matter he emphasized more than once that the water followed a well-defined underground course, and on emerging on the respondent’s land it continued in a well-defined channel to a pond on that land.

The main submissions of the appellant in asserting his right to interfere with the flow of the stream were that there was no defined channel in which the water ran, that it originated as an artificial waterway and had no permanent character to permit the acquisition of prescriptive rights, and that the respondent could only succeed in his claim to an injunction by showing an express or implied grant from an earlier common owner of the two properties. There are concurrent findings of fact that the water flowed in a clearly defined channel from the Epstein property to that of the respondent. The Court of Appeal, unlike the trial

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dominant one by way of a cross-easement to the judge, spoke of it as “an original stream”; and, on the facts, I take this to mean that the water was not artificially supplied. It had been, however, artificially collected; and there was an artificial diversion of it to the respondent’s land by means of the wooden box or tile. The question that must be answered, therefore, is whether there was any duty upon the appellant to refrain from interfering with this diversion for the benefit of the respondent.

Epstein could not, of course, object to the use of the diverted water by the respondent once it had left Epstein’s land. Nor are we concerned here with Epstein’s right to continue to send the water on to the respondent’s land; the latter takes no such objection. What is involved is the creation of a situation which, having continued over a period of time exceeding forty years (long enough, as the trial judge has found, to establish a prescriptive right), has become indistinguishable from a natural condition.

The trial judge’s finding meant that he was satisfied that the diversion of the overflowing water in a defined channel to the respondent’s land was not merely temporary and that the diversion was not one that served a particular purpose of the upper riparian owner so as to make the respondent’s claim precarious. There was, however, no express advertence to the issue of precariousness, which is enveloped in the requirement for a prescriptive easement under s.31 of The Limitations Act (now R.S.O. 1970, c.246) and is specifically found in the words “claiming right thereto” in that section.

The basis upon which the respondent can claim a continuation of the flow of the water is not at all clear when the record shows that the discharge of the water into his land began as a benefit to the Epstein land and as a burden upon the land now held by the respondent. Of course, the respondent could use the water so discharged; but in seeking to turn his servient tenement into a

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flow of the artificial watercourse, he is asserting a right which, as Bowen L.J. said in Chamber Colliery Co. v. Hopwood[1], at p. 558 is “a very difficult kind of right to establish”. Submission to the flow of water sent down by Epstein and his predecessors for the prescriptive period squares more easily with a claim of right against the respondent and his predecessors than a cross-assertion by the latter to have that flow maintained.

I would have been content, in the circumstances of the present case, to place the respondent’s position not on prescriptive easement but on the proposition stated in 28 Halsbury, 1st ed., 1914, at p. 424, as follows:

Every riparian owner on a natural watercourse flowing in a known and defined channel, whether on the surface of the land or below it, or in an artificial channel of a permanent character, has as incident to his property in the riparian land a proprietary right to have the water flow to him in its natural state in flow, quantity, and quality, neither increased nor diminished, whether he has yet made use of it or not.

This proposition was carried into the second edition of Halsbury (see vol. 33, 1939, p. 593) but was dropped in the current third edition: see vol. 40, 1962, p. 516. It does, however, reflect a view of the law taken in American cases. The weight of authority there is that riparian rights exist in the flow of artificial streams where the artificial condition has permanency and lower riparian owners have relied upon its continuance: see 93 Corpus Juris Secundum, # 129, pp. 841-842; 6A American Law of Property, 1954, p. 157.

There is, however, a basis in prescription to support the respondent’s case by recognizing, as being implicit in the trial judge’s finding, that (to adapt the words used in Sutcliffe v. Booth[2]) this artificial watercourse was originally made under such circumstances and has been so used as to

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give all the rights that the riparian proprietors would have had if it had been a natural stream: see also Rameshur Pershad Narain Singh v. Koonj Behari Pattuk[3]. I hold therefore that the respondent is in the position of a lower riparian owner entitled to have the benefit of the flow of the water to his land. Intentional interference with this benefit without justification, which is the present case, is an actionable tort and redress by injunction is an appropriate remedy.

I turn now to the issue of the territorial scope of the injunction against commercial hunting on the respondent’s land. The respondent is a descendant of a family that originally owned the entire property now held by the parties. He began to operate a game farm in 1962, raising pheasants which, when grown, were released for hunting by paying customers. Dogs were used in this enterprise, and it is common ground that neither they nor the birds can be successfully contained at all times within the limits of the respondent’s land; and not even by the barbed wire fence whose erection was a condition of the Court of Appeal’s modification of the all-encompassing injunction granted by the trial judge. Counsel for the respondent informed the Court that a five strand fence of the kind specified is in fact in place at the distances prescribed by the Court of Appeal’s order.

The operator of a game farm must have a provincial licence. The applicable regulation in this case was s. 3(1) of O/Reg. 199 under The Game and Fisheries Act, R.S.O. 1960, c. 158 (now The Game and Fish Act, R.S.O. 1970, c. 186), found in R.R.O. 1960, vol. 1, p. 1053 (now s. 3(1) of O/Reg. 368, in R.R.O. 1970, vol. 2, p. 682). It reads as follows:

A game bird hunting preserve shall be not less than 100 acres and not more than 600 acres in area.

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The record shows that the respondent in applying for a licence described the land on which he proposed to carry on a pheasant hunting preserve as consisting of 200 acres. This was, strictly speaking, untrue, but was explained by him as incorporating land of a neighbour, one Tunney, with his permission. Tunney testified to verbal permission to the respondent to hunt on his land but there was no firm agreement in that respect. Although the respondent owned in excess of 100 acres, the effective area of the game farm operation was (as found by the trial judge) 50 to 55 acres. This area lay east of the Epstein land and north of the Gilmour property. The effect of the Court of Appeal’s order was to reduce this area even further.

Appellant Epstein did not contend that the respondent was improperly licensed nor, on the other hand, did the respondent contend that the licence would give any sanction to what would otherwise be an actionable nuisance. The hunting season on the respondent’s game farm was of seven months’ duration, from September 1 to March 31, and his busy days were Wednesday afternoon, Saturday and Sunday. The trial judge found that although the noise from shooting in the course of commercial hunting of pheasants was not as objectionable as the noise in trap shooting, none the less in view of the number of hunters, usually 7 to 10 per day (but on occasions more), who used the defendant’s property, it was both objectionable and irritable; and, having regard to the danger which the use of guns involves, a permanent injunction should issue.

The Court of Appeal in its modifying order acted upon evidence that the range of a shot-gun, such as those used in the hunting, was 260 yards. I cannot, however, distinguish between the trap shooting as an enjoinable annoyance and the commercial hunting, when regard is had to the character of the locality in which the lands of the parties lie and to the limited area in which the

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respondent found it feasible to carry on his game farm.

The trial judge noted that prior to the commencement of the game farm operation by the respondent, the area in which the parties’ lands were located was a quiet peaceful section of rural Ontario. It does not, therefore, advance the respondent’s case that the appellant Epstein knew or ought to have known when he bought in 1965 that there was a game farm on adjoining land. It was in fact the only game farm in the area, and, in my opinion, had no place there on the facts respecting its operation.

The order of the Court of Appeal would have effect in eliminating the constant risk of physical invasion of Epstein’s land by the shot from the 12 and 20-gauge guns that were commonly used by the hunters. The order would not, however, remove the invasion of recurring noise from the activities of the hunters; and, as already noted, it would not keep out the birds or the dogs that are part of the game farm operation when, in flight or in chase, they approach Epstein’s land.

The main point raised in this Court on this aspect of the case was whether there was any such evidence of disturbing noise as to warrant an injunction against commercial hunting on the whole or any part of the respondent’s land. The trial judge’s affirmative conclusion on this point is supported by the evidence. The respondent was left in no doubt by the complaints made by Epstein that the noise associated with the hunting activities on the respondent’s land was disturbing. I reproduce two pieces of evidence of the respondent, the first read in from his discovery and the second given at trial on cross-examination:

(1) 401 Q. Did you receive any complaints from Epstein concerning the noise of the shooting or the conduct of the hunters?

A. The noise.

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402 Q. What complaint did you receive?

A. He didn’t like the noise.

403 Q. Well, when did he tell you this?

A. Well, he didn’t tell me too much, he just had the Provincials down there all the time.

(2) Q. Now I think probably the evidence is clear that since you started this game farm and more particularly when you started the trap shooting range you have had a series of complaints from Mr. Epstein and Mrs. Gilmour?

A. Yes.

Q. And they have objected, not necessarily to you, but to Lands & Forests officials, municipal officials, and the police concerning the noise and carrying on of hunting?

A. Yes, sir.

Epstein himself gave evidence to this effect, and the trial judge could properly find as he did.

The justification for the blanket injunction granted by the trial judge lay in the recurring, continuing noise associated with the hunting activities permitted by the respondent on his land, situated in a locality to which such noise was foreign. The absence of physical injury or property damge does not affect the right to an injunction where there is conduct, not merely temporary, which materially interferes with the comfort and enjoyment of living in the locality.

I would, accordingly, allow the appeal in respect of the commercial hunting, set aside the order of the Court of Appeal and restore the order of the trial judge. The appellant should have one-half of his costs in this Court and the costs of the appeal by the respondent to the Court of Appeal. I would not disturb that Court’s order as to the costs of the cross-appeal, nor the order

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of the trial judge refusing to allow any costs of the claim and counterclaim.

Appeal allowed in part.

Solicitors for plaintiffs, appellants: Cameron, Brewin & Scott, Toronto.

Solicitor for the defendant, respondent: R.N. Starr, Toronto.