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HomeMy WebLinkAboutWD-33-90 ,�� ',e `� TOWN OF NEWCASTLE s� REPORT File #f Res. # By-Law # MEETING: GENERAL PURPOSE AND ADMINISTRATION MEETING DATE: APRIL 23, 1990 REPORT #: WD-33-90 FILE #: W&JECT: DRAINAGE PROBLEMS - CONCESSION ROAD 8, MR. AND MRS. KEN SMITH RECOMMENDATIONS_: It is respectfully recommended that the General Purpose and Administration Committee recommend to Council the following: 1. THAT Report WD-33-90 be received; 2 . THAT as part of the 1990 Ditching Program, the Public Works Department improve the drainage from the top of the hill on Concession Road 8 which is located approximately 63 m (207 feet) east of the Smith house westerly to the natural outlet for the water; 3. THAT no action be taken to redirect the water which is going through a culvert located approximately 140 m (459 feet) east of the house owned by Mr. and Mrs. Ken Smith on Concession Road 8; and 4 . THAT Mr. and Mrs . Ken Smith be advised of Council's decision and that they be provided with a copy of this report. REPORT 1.0 ATTACHMENTS i No. 1: Location and Detail Plan No. 2 : Ministry of Agriculture and Food Bulletin on "Common Law Aspects of Water" No. 3: Report WD-15-89 0 ? h . . .2 i REPORT NO. : WD-33-90 PAGE 2 2.0 BACKGROUND 2 . 1 At a meeting held on February 12, 1990, Council passed Resolution #C-124-90: "THAT the Director of Public Works investigate the drainage problems on Concession Road 8, east of the Smith's property to the west side of Purdy's i property and submit a report on his findings to the General Purpose and Administration Committee. " I I 3.0 REVIEW AND COMMENT Mr. and Mrs . Ken Smith have three concerns about drainage in the vicinity of their house on Concession Road 8: 3.1 Problem 1: During periods of heavy rains or periods of thaw during the winter and spring, the existing ditches and culverts do not have sufficient capacity to carry the water and the water floods the road. This problem has been reviewed in the field during a period of thawing in February of this winter and again on Monday, March 12, 1990 during a period when there was a considerable amount of flooding throughout the Town. The culverts and ditches on the stretch of road from the top of the hill on Concession Road 8 which is located approximately 63 m (207 feet) east of the Smith house westerly do not have sufficient capacity to carry the water and the road floods during periods of heavy rain and/or spring thaw. RECOMMENDATION 1: THAT as part of the 1990 Ditching Program, the Public Works Department improve the drainage from the top of the hill on Concession Road 8 which is located approximately 63 m (207 feet) east of the Smith house westerly to the natural outlet for the water. 10 '1 / . . .3 I REPORT NO. : WD-33-90 PAGE 3 3.2 Problem 2• 3.2 . 1 At the present time there exists a 625 mm (24 inch) diameter culvert under Concession Road 8 approximately 140 m (459 feet) east of the Smith house. The water from the drainage area to the north of Concession Road 8 goes through the culvert, onto the Varcoe property and then onto the Smith property (see Attachment No. 1) . 3 .2 .2 The culvert under Concession Road 8 drains a relatively large drainage area north of Concession Road 8 . 3.2 . 3 Mr. and Mrs. Smith have asked the Town to divert the water from the drainage area by constructing a ditch on the north side of Concession Road 8 thereby diverting the water to the west. The effect of this diversion would be that the water would pass along the front of five (5) houses located on the north side of Concession Road 8. As noted in Problem 1, the ditches on the north side of Concession Road 8 do not have sufficient capacity to carry the water that now reaches them and flooding of the road occurs during spring run-off and during heavy rains . 3.2 .4 The difference in elevation from the bottom inside (invert) of the culvert under Concession Road 8 to the ditch at the top of the hill located 77 m (23 feet) to the west is 1.4 m (4.6 feet) . This means that the ditch, based on 1% slope of the ditch, would be 2 .2 m (7 .2 feet) deep at its deepest point. 3 .2 .5 Attachment No.2, "Ministry of Agriculture and Food Bulletin on "Common Law Aspects of Water" is an excellent summary of drainage law. The summary of Natural Drainage rules on the second page of the bulletin is reproduced below for clarity: 1. A natural watercourse must not be obstructed or diverted. 2 . Surface water must not be collected and diverted to land that would not naturally receive it. 1 028 . . .4 REPORT NO. : WD-33-90 PAGE 4 3 . The point of entry of surface water on lower land must not be changed. 4 . Water must not be brought in from another watershed. 5. Cannot accelerate the flow of water to the material damage of lower land. 6 . Low land may be filled and the water forced out into natural channels. 7 . Municipalities must not drain into private drains . 3 .2 .6 Diverting the water, as requested by Mr. & Mrs. Smith would be in contravention of Rule #1 and Rule #4 . RECOMMENDATION 2: THAT no action be taken to direct the water which is going through a culvert located approximately 140 m (459 feet) east of the house owned by Mr. and Mrs . Ken Smith on Concession Road 8. 3.3 Problem 3- 3. 1 Water ponds in front of the Purdy property during certain times of the year. This matter was dealt with in Report WD-15-90 (Attachment No. 3) . Respectfully submitted, Recommended for presentation to the Committee, /jV/ 1--211 l ------------------------ ------- -�------------------- Walter A. Evans, P.Eng. , Lawrence E'. Kotseff, Director of Public Works. Chief Administrative Officer. WAE*llv April 5, 1990 Attachments cc: Mr. & Mrs . Ken Smith R.R. #5 Bowmanville, Ontario L1C 3K6 �� A-1 Ministry of Agriculture AUGUST 1974 AGDEX 557 and Food ti P ­7 I UUMMON LAW ASPECTS OF WATER (Reprinted October 1975) R.W. Irwin, School of Engineering, University of Guelph This summary is only a general guide. It is not possible to Civil Law is private law and deals with private rights and make a definite assertion as to the legal truth of any point obligations. These include:(1)Contractual Rights;(2)Prop- covered here since the application of the law usually depends erty Rights and(3)Torts. upon the particular circumstances of each case. Competent legal counsel should be procured for any water right or A Tort is a wrong against an individual and includes acts or drainage problem that may arise. omissions of acts which cause actual loss or injury and infringement of the legal rights of others but do not cause HISTORICAL BACKGROUND actual damage. Since a Tort is a civil wrong against an individual, it is the person who suffers loss or injury who The aim of Law is to ensure justice and to promote the must initiate legal action. Examples of Torts may be de- welfare of people. Justice is not fickle and does not change famatory statements, breach of contract, injury caused by with the changes in our social and economic life. Law is a dangerous animals, trespass, private nuisances and negli- heritage from the past and can be expected to remain stable in gence. A private nuisance is committed when a person uses the future. his own property in such a way that he causes damage to the The basis for Canadian Law is derived from two sources: property of some other person, or interferes with another's (1) English Common Law and, (2) Roman Civil Law legal rights and personal comfort. Where a nuisance arises which was the predecessor to the French Civil Code. There out of an act authorized by Law,there is no right of action. are some similarities between them since the Roman Civil An easement is a right annexed to land to utilize other land Law was the source of some English Common Law. The Common Law is basic. It always applies and governs except of different ownership in a particular manner, or to prevent insofar as it may be varied or added to by Statute Law. the owner of such other land from utilizing his land in some Statutory authority must always be sought for any variations manner; but does not involve the taking of any part of the from Common Law. natural produce of that land or of any part of its soil. Ease- ments can be created only by Grant or Statute.Creation of an Law may be classified according to origin or according to easement by Grant may be either by: (1) express consent. nature and purpose. According to origin, it may be either(1) (2) implied grant, or (3) prescription. A prescriptive right Statute Law or (2) Common Law. Statute Law comprises may be established by a court on the ground of long and open Acts of the Legislature or Parliament to meet the need of the use which was uninterrupted and undisputed and not by any people. Common Law consists of rules, principles and cus- implied or express permission of the other owner. toms established in England and once used as a basis for decision. While it is frequently called Unwritten Law, much The Statute of Limitations places a minimum of 20 years of this law is now in written form. Common Law also on the above use for water rights without interruption or changes as customs change and as new practices arise. formal protest by the party concerned. Common Law may be classified as follows: (a) Case Law, formerly unwritten and now to be found in Remedies for Torts the published official law reports. All infringements of the rights of water, natural or ac- (b) Precedent, a recognized custom or new interpretation quired, come under trespass or nuisance. A private nuisance of existing law.Once established it becomes law until may be removed or abated by the party aggrieved if it can be changed by a higher court. done peacefully. The remedy by act of law for infringement (c) Equit% may be based on no precedent and was for- of water rights is by injunction or mandamus. merle a ruling based on an appeal to the King. Pres- entl%-these are given in the Court of Chancerv. There is no distinction in the Common Law between the rights of a corporation and the rights of a private landowner. Law is also classified according to nature and purpose. A Municipal Corporation at Common Law has no greater The chief divisions on this basis are:(I) Criminal,(3) Civil. rights or obligations than other landowners. (3) \,Iditarn. (4) \,Ianial and (5) International Law. The ` Criminal Law is contained in the Canadian Criminal Code NATURAL WATERCOURSES and a crime is punished b\ the State. To constitute a crime there must be both a criminal act and a guilty mind. That is, Almost the whole law of watercourses is founded on the there must be criminal intention, criminal negligence or maxim of the Common Law."Aqua currit et debet currere," malice aforethought. water flows naturally and should be permitted thus to flow. 1 0 3 0 ATTET'IENT N0.2 WD-33-99 A natural watercourse is defined generally as a stream of Generally a riparian owner has a proprietary right to have water which flows alone a defined channel, with beds and the water flow to him in its natural state neither increased nor banks, for a sufficient time to give it substantial existence. diminished in quantity or quality. He is also entitled to use it This may include streams that dry up periodically. for domestic or natural uses. He may use it for extraordinary natural watercourse does not cease to be ;uch if at a purposes if he does not interfere with the rights of others. He A ` may use it for irrigation purposes or dives it on his own land, cenain point it spreads out over a level area and tlow,s fora ` if he returns it opposite his o%yn land, less what has naturally distance %without defined banks before tlo\\ins: again in a been absorbed: but the quantity he mas take depends on the defining channel. condition that he must not injure lo%ker owners. i A riparian owner is one whose land is in actual contact A riparian owner has the right to waterpower from flowing with the stream of water. The Riparian Doctrine of water water. In Ontario no dam may be constructed until the plans rights is apparently in effect in Ontario with respect to natural have been approved by the Lieutenant Governor in Council. watercourses. The Minister may also authorize the removal of obstructions A riparian owner is not only entitled to have the water of a in the public interest. stream passing through his land flow to him in its natural The pollution of water is an indictable nuisance. The state, so far as it is a benefit to him, but he is also bound to injured owner need not show damage but merely breach of submit to receive it so far as it is a nuisance to him by its his rights.The right to pollute may be gained by prescription. tendency to flood his land. Unless, therefore, the flow of the ` stream is increased or diverted to his prejudice by some unauthorized act, by the proprietors above or below him, he WATER HAVING NO DEFINED COURSE has no remedy but must submit to what is the result of natural The principles of law which regulate the rights of owners causes. Thus, where a stream becomes by natural causes of land in respect of water flowing in known and defined silted up or choked by weeds, and in consequence overflows channels, whether upon or below the surface of the ground, adjoining lands, there is no common law liability on the do not apply to water which runs in no defined channel, or owner to clear the channel or to compensate the adjoining merely percolates through the strata and no action will, owners who may be damaged thereby. The utmost extent of therefore, lie for the abstraction or diversion of such water. the obligation imposed upon the owner of lower land is not to alter the condition of it,so as to interfere with the enjoyment No right of drainage of mere surface water exists as long as of the easement by the high land. This obligation, however, the flow is not in a defined channel. An owner of lower land applies only to the water which flows naturally without the may, at his own choice,either allow water from higher land art of man.If any person above or below makes any change in to flow over it or keep such water off his property by dams or the natural flow of a stream to the material injury of the owner banks. situated upon it, or by any interference shall prevent the stream from flowing as it was wont to flow,to Euch injury,he SUMMARY OF NATURAL DRAINAGE RULES is liable for the damage he may occasion. 1. A natural watercourse must not be obstructed or di- Any landowner whose lands abut upon a natural water- verted. course has the right to drain those lands into the natural ?. Surface water must not be collected and diverted to stream,except the riparian land owner may not bring waters land that would not naturally receive it. into a natural watercourse which have not fallen upon the 3. The point of entry of surface water on lower land must lands located in the watershed. He may not sell or assign the not be changed. right to drain into a natural watercourse. He may collect the 4. Water must not be brought in from another watershed. water,whether it be in ditches or in proper drains and he may 5. Cannot accelerate the flow of water to the material discharge it into the watercourse. This is so even though the damage of lower land. result is to increase the volume of the stream and to accelerate 6. Low land may be filled and the water forced out into its rate of flow, natural channels. If a riparian owner raises the level of his land by filling or 7• Municipalities must not drain into private drains. structures in order to protect it from flooding, he may be Drainage Acts are statutory and have enlarged on owner's deemed to have interfered with the natural channel of the right to improve his drainage beyond the point permitted by stream and if it can be shown that his protective works have the Court's interpretation of the Common Law but has not diverted the stream or caused flooding of the lands of curtailed the Common Law rights of riparian owners. another, then he has interfered with the channel and will be liable for the resulting damage. UNDERGROUND WATERS The principle of the Common Law is that it is the duty of anyone who interferes with the course of a natural stream to The concept of underground waters is often referred to as the English Rule and is based on the concept of absolute see that the works which he substitutes for the channel provided by nature are adequate to carry the water which may ownership.The rights to use this water for irrigation are more secure than is a surface source.The owner of land containinsi be brought around even by extraordinary rainfall. ` underground water which percolates by undefined channels Where a natural watercourse becomes pan of an artificial and flows to the land of a neighbor has the right to use for any drainage system it is no longer immune under the law,so the purpose, divert, appropriate or sell the percolating water entire system must have a safe and proper outlet. Riparian within his own land so as to deprive his neighbor of it. No owners may make reasonable use of a stream as it flows past action will lie where water which has actually percolated as an outlet for drainage of their own land for agricultural into, and is in the well, has been abstracted by operations in purposes. the adjoining land. 1031 II 10(o) TOWN OF NEWCASTLE REPORT File # Res. # By-Law # MUING: GENERAL PURPOSE AND ADMINISTRATION MEETING DATE JANUARY 9, 1989 RE CRT #: WD-15-89 FILE #: SL&ECT: DRAINAGE PROBLEM -..MR. & MRS. J.W. PURDY, LOT 5, CONCESSION 7, FORMER TOWNSHIP OF DARLINGTON RECOMMENDATIONS: It is respectfully recommended that the General Purpose and Administration Committee recommend to Council the following: 1. THAT this report be received; and 2. THAT Mr. & Mrs. J.W. Purdy be advised that Council has reviewed their request to have the Town construct - a drainage ditch on their property to solve the drainage problem in front of their house and has decided that the problem is not the responsiblity of the Town to correct; and 3. THAT a copy of this report be forwarded to Mr. & Mrs . J.W. Purdy, R. R. # 5 , Bowmanville L1C 3K6. REPORT 1 . 0 BACKGROUND 1 . 1 At a regular meeting of Council held on December 12 , 1988, Council passed Resolution #GPA-802-88: "THAT the Director of Public Works review the drainage problem experienced by Mr. Jack Purdy, Part Lot 5, Concession 7 (Darlington) ; and THAT a subsequest report be forwarded to the General Purpose and Administration Committee on his findings. " ATTACHIENT NO .3 WD-33-OJ . 2 i 10(0) I Page 2 WD-15-89 1. 2 Last winter I reviewed a drainage problem on the property owned by Mr. & Mrs. J.W. Purdy, Lot 5, Concession 7 , former Township of Darlington. The problem is that there is a depression in the front yard of the Purdy property which results in water ponding in the front yard. At the time of reviewing the problem, there was a large area of the front yard covered in ice. 1. 3 I was advised that the problem was caused by the construction of the road in front of the Purdy property. Based- on this information, I agreed to enter onto the Purdy property to dig a small drainage ditch from the low area in front of the house to l the south-east corner of the property. / 1.4 During the 1988 Road Tour with Council, I was advised that this problem has existed for many years and that it is more than twenty years since the road was constructed. 1 .5 Based on the above information, the Purdy' s were advised that we would not enter onto their property to dig the drainage ditch. 2 . 0 RECOMMENDATION 2 . 1 Based on the above, it is recommended that Mr. & Mrs . Purdy be advised that Council has considered their request that the Town construct a drainage ditch on their property to solve the drainage problem in front of the house and have decided that the problem is not the responsibility of the Town to correct . Respectfully submitted, Recommended for presentation to the Committee, alter A. Evans, P. Eng. , -- 1 0 J J Lawrence E . seff,--------- Director of Public Works. Chief Admin s ative Officer. RIDGE PAKOSTA I ' 800mm CULVERT _ 1 4--' .4'SWAMPY Ji J—T CONCESSION ROAD 8 u 11 11 BROERSMA PURDY WILCOCK CREST � HILL CAMERON PENWARDEN ��� ; cu m LVE CONCESSION ROAD 8 63m 77m- - W SMITH VARCOE Y ' SUBJECT SITE r ;.a 2 g II5 .• r' . SKE ING C C. II a Q 11 a & & r o f I 35 34 13 32 31 ?9 111 17 � cot WD— —9 0 o Tt NI ( ;�� KEY MAP ATTACHMENT NO. 1