PROVINCE OF PRINCE EDWARD ISLAND IN THE SUPREME COURT - TRIAL DIVISION VINCENT TORRES. ALEX FERGUSON, SHARON FERGUSON and LORI FERGUSON (BALDERSTON)

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1 Citation: Torres v. Ferguson & Ors. Date: PESCTD 71 Docket: GSS-4167 Registry: Charlottetown PROVINCE OF PRINCE EDWARD ISLAND IN THE SUPREME COURT - TRIAL DIVISION BETWEEN: VINCENT TORRES AND: PLAINTIFF ALEX FERGUSON, SHARON FERGUSON and LORI FERGUSON (BALDERSTON) DEFENDANTS BEFORE: The Honourable Chief Justice J. Armand DesRoches Plaintiff Mitchell T. MacLeod Present and Representing Himself Solicitor on behalf of the Defendants Place and Date of Hearing Place and Date of Decision Charlottetown, Prince Edward Island March 18, 19 and August 14, 2003 Charlottetown, Prince Edward Island September 12, 2003

2 Citation: Torres v. Ferguson & Ors PESCTD 71 GSS-4167 BETWEEN: VINCENT TORRES AND: PLAINTIFF ALEX FERGUSON, SHARON FERGUSON and LORI FERGUSON (BALDERSTON) DEFENDANTS Prince Edward Island Supreme Court - Trial Division Before: DesRoches C.J. Date of Hearing: March 18,19, 2003 and August 14, 2003 Date of Decision: September 12, 2003 [16 Pages] REAL PROPERTY - Easements - extent of right granted - what constitutes a reasonable use. Cases Considered: Re Ellenborough Park, [1955] 3 All E.R. 667 (C.A.); Sakansky v. Wein (1933), 169 A.1;MacPhee v. Perry, [1988] 1 P.E.I.R. 120; Wells v. Mitchell, [1939] O.R. 372 (Ont. C.A.). Texts Considered: Mendes da Costa & Balfour, Property Law, Cases, Texts and Materials (1982); Maurice, Gale on Easements, 14 th ed. (1972); Ziff, Principles of Property Law, 3 rd ed. Plaintiff, present and representing himself Mitchell T. MacLeod, solicitor on behalf of the defendants

3 DesRoches C.J.: [1] The plaintiff seeks an injunction preventing the defendants from interfering with his use of an easement he has to access and maintain a well and water system for his home. He also seeks damages and a declaration that he has a right to the water at the site of his well and an order requiring Lori Ferguson to return the surrounding land to the condition it was in prior to the infilling done on her lot. Background [2] The defendants Alex and Sharon Ferguson granted an easement to Arnold and Faith Howatt by indenture dated January 31, This document was registered on February 18, The plaintiff purchased the Howatts property in The deed of conveyance, dated September 26, 1988 and registered on September 30, 1988, conveyed both the parcel upon which the house is situated as well as the easement. Because this case requires interpretation of the terms of the easement, its terms are set out below: Deed of Easement - Ferguson to Howatt WHEREAS the Grantees are the owners of certain lands and premises, which lands and premises are contiguous to the land of the Grantor, and acquired from the Grantor by deed registered August 19, 1985 in Liber 422, Folio 33; WHEREAS the Grantees intend to drill a water well and construct a well house over same and lay a water carrying pipeline from the well site to their property mentioned above over lands of the Grantor and for the enjoyment of which they desire an easement from the Grantor over and along the Grantor s land; AND WHEREAS the Grantor has agreed to grant the easement for the purposes described and to allow the Grantees to carry out the following work: (a) (b) To enter, construct, maintain, inspect, alter and make repair by drilling a water well and well house and lay a water carrying pipeline, including all appurtenances thereto, on and under the lands in Schedule A attached hereto; for the servants, agents, contractors and workmen of the Grantees to enter with machinery, material, vehicles and equipment necessary for the said installations.

4 Page: 2 The Grantees covenant to fill in all excavations and as far as practicable restore the surface to the same condition as prior to the commencement of construction, or of any subsequent work thereto. The Grantor covenants to keep the land clear of all brush, trees and other obstructions as may be necessary for the use of the easement. The easement herein is declared to be appurtenant to and for the benefit of the lands of the Grantees so acquired as stated above from the Grantor. The Grantees herein, their heirs and assigns, covenant and agree with the Grantor herein, as follows, and sign this deed in acknowledgement thereof: Deed - Howatt to Torres Parcel No. 2 (1) That they shall leave no debris or rubbish after the well is dug and the well house erected, and the water line buried. (2) That the water carrying line will be dug to a depth of 6 feet and will be dug in such a way that the top sod will be removed first, then the soil, and after the laying of the water carrying pipe the soil will be repacked into the trench and thereafter the top sod replaced. (3) The Grantees covenant and agree with the Grantor that no work inspection or action under this easement shall take place without reasonable prior notice to, and due consultation with, the Grantor or his heirs and assigns, with regard to the work, inspection or action. (4) That the Grantees shall not work the line between the time a crop is planted and harvested. An easement for laying a water line, and drilling a water well and erecting a well house over the well site over that parcel of land situate, lying and being at Hampton, on Township Number Twenty-nine (29), in Queens County, Province of Prince Edward Island, bounded and described as follows, that is to say:

5 Page: 3 COMMENCING at a point on the Northern side of the road leading from Victoria to Hampton, said point being 900 feet Eastwardly from the centre of the road that leads from Victoria to Hampton at the point in said road, where said road turns in an Easterly direction; THENCE Northwardly approximately 50 feet from the centre of the road at that point, to the location of the well site and where the well will be drilled and the well house erected, said well being 200 feet, more or less Eastwardly from the site of the well house now or formerly in the possession of Alec James Ferguson; THENCE from said well site Northwestwardly by the shortest distance to the rear of the said Howatt property. The said site for the well site and well house being approximately 5 feet by 5 feet square and the width of the water carrying line from the well site to the rear of the Howatt land will be five (5) feet. Being described in a Deed of Easement from Alec James Ferguson to Arnold Howatt and Faith Eileen Howatt dated January 31, 1986 and registered in the Queens County Registry Office on the 18 th day of February, A.D in Book 3, Page 122 as Document Number 936. [3] The plaintiff testified that in about 1993 he erected a well house over the well site. The structure was an A-frame construction measuring approximately 4' x 6' x 6' in diameter and height. It was constructed of lexan panel and the plaintiff painted several pictures and designs on the well house. This well house is clearly depicted in several of the photographs filed by the plaintiff at the hearing, especially in photos 1, 2, 3 and 4 of Exhibit P-6. [4] According to the defendant Sharon Ferguson, it was in 1995 that the plaintiff approached her and her husband seeking permission to erect a well house because he feared his well would freeze during the winter. The Fergusons had never known the well to freeze. Nevertheless, the Fergusons granted the plaintiff permission to construct a well house but informed him that because the well was on a lot that had been conveyed to their daughter, Lori Ferguson, and since she intended to build a house on the lot, he may eventually have to either take it down or build something smaller. Sharon Ferguson testified the plaintiff seemed to agree. [5] Lori Ferguson began construction of her house in the summer of At that point, according to her evidence, she was informed that the plaintiff s well house interfered with the survey of her property, and also would interfere with her getting mortgage funds. Sharon Ferguson asked the plaintiff to replace his well house with a smaller structure. She testified he seemed to be agreeable at the time; their conversation was friendly. The plaintiff did not remove the structure and, towards the

6 Page: 4 end of August Sharon Ferguson and her daughter Lori again spoke to the plaintiff asking him to dismantle the well house. According to the testimony of both Sharon and Lori Ferguson, the plaintiff became very angry and told them to leave his property; he stated he would call the police. [6] The plaintiff s evidence is somewhat contradictory to that of the defendants. He stated he never asked directly for permission to build the well house. According to him he has permission to do so in the grant of easement. He also testified he never agreed to remove the well house but did agree he could change the color. He did acknowledge that when approached by the defendants in late August he had refused to remove the well house. [7] In any event, the defendants, faced with the refusal of the plaintiff to remove or reduce the well house, took matters into their own hands and proceeded to dismantle it. Once dismantled, they informed the plaintiff he could pick up the material; when he did not they simply placed it on the plaintiff s property. [8] The defendants testified they never intended to limit or restrict the plaintiff s water supply. They stated they respect the plaintiff s rights under the easement and they have offered to install a well cover on the plaintiff s well at their expense, but the plaintiff has refused. Also, they have offered to hook-up at their expense the plaintiff s water line to a new well to be constructed on another part of the property, but the plaintiff has refused this as well. There is also evidence from the defendants by way of testimony and photographs that the plaintiff has used a lawnmower to clear a path over the five foot right-of-way as a means of accessing his well site. The defendant Lori Ferguson testified the plaintiff did not seek permission to mow this area. [9] The plaintiff maintains he has had no water supply since the defendants dismantled his well house. [10] It is important to know that the unique well house the plaintiff had constructed, while at the time it was built was located in empty field being farmed, turned out to be situated directly in front of Lori Ferguson s newly constructed house, between the house and the highway. Lori Ferguson testified she was very concerned about the aesthetics of the well house; she did not like it at all. [11] The testimony of Arnold Howatt ( Howatt ), one of the original grantees in the deed of easement, is especially significant. He stated that when he purchased the property which he eventually sold to the plaintiff, he was aware there was a problem getting fresh water in the area. He said the Fergusons, who were neighbours, kindly gave him permission to dig his well on their land. The deed of easement subsequently was executed.

7 Page: 5 [12] Howatt testified that even though the easement gave him permission to construct a well house, it was verbally agreed he would not erect anything above ground. For this reason, he installed the existing concrete well enclosure with the top flush with the ground. He stated that part of the reason was he knew that each of the Ferguson s daughters were to get a building lot in the area and he installed the well enclosure in such a way so as not to interfere with their use of the property. [13] According to Howatt, the well was dug in the spring of He said in the years he resided in the house the well never froze. The only extra precaution he took was to cover the well enclosure with seaweed in winter. He also looked after the property for the plaintiff for two years after it had been purchased by the plaintiff in 1988 and no problems were encountered. He stated the addition of seaweed in winter was just to be safe; he had been assured the well would not freeze, and his experience proved this to be true. The Law [14] The essential qualities of an easement were succinctly stated by Lord Evershed M.R. in Re Ellenborough Park, [1955] 3 All E.R. 667 (C.A.) as follows at p. 673: They are (i) There must be a dominant and a servient tenement; (ii) an easement must accommodate the dominant tenement; (iii) dominant and servient owners must be different persons; and (iv) a right over land cannot amount to an easement unless it is capable of forming the subject matter of a grant. [15] Although to define an easement as some right which a person has over land which is not his own lacks precision, it is nevertheless an accurate description of the situation in this case. The plaintiff has acquired through his purchase of the Howatt property a right over the servient tenement, that is the Ferguson property, a right as described in the indenture granting the easement. [16] This case is not concerned with whether an easement exists but rather the limits, if any, which may be imposed upon the dominant owner s (the plaintiff) use of the easement. [17] In their text Property Law, Cases, Texts, and Materials, Derek Mendes da Costa and Richard J. Balfour devote all of Chapter 23 to a discussion of easements. In considering the problems of the scope of an easement, the authors include at pp the judgment of the Supreme Court of New Hampshire in Sakansky v. Wein (1933), 169 A.1 in which Woodbury J. made the following observations:

8 Page: 6 In this state the respective rights of dominant and servient owners are not determined by reference to some technical and more or less arbitrary rule of property law as expressed in some ancient maxim...but are determined by reference to the rule of reason. The application of this rule raises a question of fact to be determined by consideration of all the surrounding circumstances, including the location and uses of both dominate and servient estates, and taking into consideration and advantage to be derived by one and the disadvantage to be suffered by the other owner...the same rule has been applied to easements other than rights of way...the master s general rulings of law are in accordance with the foregoing and are therefore correct. [18] The so-called rule of reason is a rule of interpretation. This rule does not prevent the parties from making any contract regarding their respective rights which they may wish, regardless of the reasonableness or otherwise of their wishes. The rule merely refuses to give unreasonable rights, or to impose unreasonable burdens, when the parties, either actually or by legal implication, have spoken generally. [19] In the instant case, the parties are bound by a contract which not only gave the dominant owner (the plaintiff) a way across the servient property, but also granted the rights more particularly set out in the easement indenture quoted above. [20] The use which the plaintiff may make of the way and other rights granted by the indenture is limited by the bounds of reason. As it is put in the text Gale on Easements at pp : It is not every interference with the full enjoyment of an easement that amounts in law to a disturbance; there must be some sensible abridgment of the enjoyment of the tenement to which it is attached, although it is not necessary that there should be a total destruction of the easement. The injury complained of must be of a substantial nature, in the ordinary apprehension of mankind, and not arising from the caprice or peculiar physical constitution of the party aggrieved. [21] It was held by implication by the Appeal Division of this Court in MacPhee v. Perry, [1998] 1 P.E.I.R. 120 that only restrictions which frustrate the purpose for which the easement was granted will not be permitted. [22] In Wells v. Mitchell, [1939] O.R. 372 (Ont.C.A.) we find quoted at p. 376 the following pertinent observations of Masten J.A. in Smith et al. v. Morris, [1935] O.R. 260:...It is the duty of the court to ascertain and give effect to the intention of the parties, and for that purpose it may consider the situation of the property and of the parties, and the surrounding circumstances...while the burden imposed on the servient tenement is not to be increased by the action of the

9 Page: 7 owner of the dominant tenement, regard must be had to the fact that the predominant idea is that the dominant tenement shall really enjoy the easement granted not as a mere theoretical right on paper, but by a real physical enjoyment of the right conferred. [23] In the final analysis whether or not any particular use is permitted depends upon the facts. It is clear, however, that the burden of the right of way cannot be increased by enlarging its character, nature or extent, as enjoyed at or previous to the time the right was acquired. It is pointed out by Bruce Ziff in the text Principles of Property Law, 3 rd edition, at p. 356, that physical circumstances may be relevant to constrict the otherwise broad rights of use that an unrestricted grant suggests. The relevant factors include the physical nature of the servient lands, and the extent to which an expansion of the easement would throttle activity on that tenement. Independent Expert s Report [24] Having reviewed the testimony and the evidence presented during the trial, I concluded I required an independent expert to inquire into and report on certain questions of fact relevant to the action. Accordingly, pursuant to Rule and with the consent of the parties, I signed an order appointing Peter H. Joostema, a hydro geology engineer with the firm of Jacques Whitford, an independent expert to do the following: a) enter upon the property of Lori Ferguson in Hampton to inspect the private drinking water well of Vincent Torres; b) provide an opinion as to: (i) the condition of the precast below grade well enclosure and associated concrete cover; (ii) the condition of existing infrastructure including pump, water line, etc., and recommendations for required repairs; (iii) the condition of the groundwater quality and if it meets all applicable guidelines for human health; (iv) whether the topography in the area of the well enclosure allows for proper drainage of surface water; and (v) what, if anything, has to be constructed over the well enclosure to ensure the well and associated infrastructures (i.e., pump and water lines) do not freeze during the winter.

10 Page: 8 c) enter upon the property of Vincent Torres in Hampton as may be necessary to conduct the necessary inspection and render the required opinions. [25] Mr. Joostema s report was filed with the Court on July 2, It indicated the drinking water well of the plaintiff was inspected on June 3, 2003 as follows: a. a visual inspection of the condition of the pre-cast concrete, below grade well enclosure and associated concrete cover; b. visual inspection of the condition of the existing drinking water well infrastructure including pump, water line, etc.; c. collection of a groundwater sample from the site drinking water well to determine that the overall groundwater quality meets all applicable guidelines for human health; and d. elevation survey of the immediate area around the precast concrete, below-grade well enclosure to identify the overall topography and determine if proper drainage of surface water away from the subject well exists. [26] Mr. Joostema s conclusions and recommendations were as follows: Conclusions The field observations and analytical data obtained from the drinking water well inspection and assessment indicate the following: the presence of various debris within the concrete well enclosure, including wet insulation, styrofoam and plastic including sheets and bags; the below-grade, precast concrete well enclosure and associated cover are in good condition, with no visual signs of cracking or damage; the well cover located on the steel casing was damaged, and could allow entry of runoff accumulation or insects into the well; a new pressure switch was installed at the wellhead on the date of the inspection/assessment (i.e. June 3, 2003), and the water system was made operational; the preliminary elevation survey indicated that under normal conditions surface water would not collect over the

11 Page: 9 below grade precast concrete well enclosure; and in general, the groundwater at the site is classified as a moderately hard and alkaline calcium bicarbonate groundwater typical of PEI groundwater aquifers. The water meets all the GCDWQ and is fit for human consumption. It should be noted that a single count of Total Coliform DC (1 per/100 ml of sample) was identified, however, as indicated on the Provincial Laboratory report (Appendix E) the water is considered safe for drinking. Recommendations Based on the information provided above, the following recommendations are put forth for consideration. all debris should be removed from the well enclosure to reduce the potential for excessive condensation which can affect the electrical components located at the wellhead; a new seal should be installed on the concrete cover; new styrofoam insulation should be applied to the underside of the cover and along the interior walls of the below-grade, precast concrete well enclosure. The styrofoam insulation should be secured to the interior walls and cover using some form of adhesive. Although freeze-up is not likely within the well enclosure this recommendation will provide additional protection against severe weather events; and the damaged sanitary well cover should be replaced with a new vermin-proof cover to protect the well and drinking water from potential impacts, such as insect intrusion into the well. the subject well should be re-tested for bacteria per the Provincial Laboratory report. It should be noted that the sample was collected via a garden hose due to leaks within the waterlines located in the basement of Mr. Vincent Torres home; therefore the source of the bacteria may originate within the garden hose. Since wells that have been idle over winter or for an extended period of time may exhibit coliform bacteria growth when initially turned on, the well and distribution lines should be disinfected, and re-sampled for total and fecal coliform bacteria after a period of use.

12 Page: 10 The overall condition of the water system infrastructure (water lines, furnace, etc.) within Mr. Torres home was not assessed as part of the present program, as this was considered beyond the original scope of work. It should be noted, however that when the water system was reactivated it became apparent that some of the water lines within the basement of Mr. Torres home were in need of repair. [27] Following receipt of this report I asked Mr. Joostema to clarify a single issue identified in his report pertaining to the requirement for the construction for an abovegrade structure over the below-grade concrete well enclosure to prevent freezing of the well infrastructure located within the well enclosure. By letter dated July 7, 2003, filed with the Court on August 7, 2003, Mr. Joostema provided the additional opinion as follows: Provided the existing below-grade pre-cast concrete well enclosure is insulated as noted above, the addition of an above ground structure over the well enclosure would not be required. [28] The reference to as noted above relates to Mr. Joostema s third recommendation that new styrofoam insulation be applied to the underside of the cover and along the interior walls of the below-grade pre-cast concrete well enclosure. [29] Upon receipt of Mr. Joostema s report, and pursuant to Rule 52.03(10), I enquired as to whether either party wished to cross-examine the expert. The plaintiff indicated he wished to do so, and this cross-examination was conducted on August 14, [30] During the cross-examination, the plaintiff made it clear he did not agree with many of Mr. Joostema s conclusions and recommendations. With the consent of the defendants, he filed an additional number of photographs and sought to have Mr. Joostema comment on them. A number of photographs depicted what the plaintiff alleged were piles of manure; however, there is no evidence to establish this. It appears, in any event, that the piles of material as shown in the photographs were located across the road from the subject property. [31] Mr. Joostema did agree that his conclusions and recommendations were based on what he saw on the day he conducted the inspection of the well, and agreed the damaged well cover mentioned in his report has to be replaced. He stated that if this well cover is replaced then there should be no intrusion of ground water into the well. Mr. Joostema agreed with the plaintiff that the well is located in a residential/agricultural area, but he made the point that in assessing the quality of the drinking water in terms of its fitness for human consumption he applied the most stringent classification of the site as residential. The plaintiff asked Mr. Joostema whether the well would receive better protection with an above-ground well house.

13 Page: 11 Mr. Joostema replied this was not necessarily so because a properly designed well enclosure had no need for an above-ground well house. He said he noted no obvious cracks in the pre-cast concrete well enclosure, and in his view insulation, typically styrofoam, applied with adhesive to the inside of the pre-cast well enclosure would provide added protection. He added that usually there was nothing applied in pre-cast concrete well enclosures in other locations. Analysis [32] By his statement of claim the plaintiff seeks the following relief: (a) (b) (c) (d) (e) (f) (g) (h) an injunction preventing the Defendants or any one of them or their assigns from interfering with the Plaintiff s use of an easement which he has to access and maintain the well and water system for his home. damages for destruction of personal property of the Plaintiff, being a well house on the easement lands. a declaration that the Plaintiff has a right to the use of the water at the site of his well and an Order requiring the Defendant Lori Ferguson (Balderston) to return the surrounding land to the condition it was in prior to the infilling done on the Lori Ferguson (Balderston) lot and an injunction to prevent them from diverting water into the well around the well site. Damages for the loss of the reasonable use and enjoyment of the Plaintiff s home, as well as the cost of repairs to the well, water system within the home and leading to the well. punitive damages pre-judgement and post-judgement interest costs of this action; and such further and other relief as this Honourable Court deems just and expedient [33] Against the background of the evidence and the law related above, I will consider each of the plaintiff s requests in turn. [34] On the basis of the testimony of all the witnesses I am not prepared to grant the injunction the plaintiff seeks. It is clear from the evidence that it is not and has never had been the position of the defendants that the plaintiff does not have a right to his

14 Page: 12 water supply. They concede he does have certain easement rights over their property. They concede he is entitled, to the extent the well will provide it, to a water supply. They add however, and I agree, that the easement is not a guarantee that the well will now or in the future provide a potable or otherwise suitable water supply. [35] In the final analysis I am not prepared to order the defendants to refrain from doing something they have, in fact, not done. [36] The plaintiff also seeks damages for the destruction of the well house. I would deny this claim for two reasons. [37] In the first place the plaintiff has not presented any persuasive evidence from which the court could calculate the measure of his alleged damages. The plaintiff presented into evidence, with the consent of the defendant, two documents that appear to be appraisals of the value of the well house he had constructed. No witnesses were called, however, to verify the amounts shown. Furthermore, the plaintiff himself stated during his testimony that there was...no way to calculate the damages. [38] In the second place the plaintiff, by his refusal to remove the well house, left the defendants no option but to dismantle it. As noted earlier in these reasons, the material from which the well house had been constructed was returned to the plaintiff s property by the defendants. [39] I would add at this point that, in my view, the plaintiff does not have the right from the easement to construct any kind of structure he sees fit on Lori Ferguson s property. Notwithstanding that a person has granted an easement over his or her land, he or she is still the owner of the soil, and has the right of full dominion over it except so far as a limitation of such right is essential to the proper enjoyment of the easement. It has been stated that the extent of the use, when unlimited by the grant, must be governed by what is reasonable and customary. [40] In my opinion, in this case it would not be reasonable to extend the plaintiff s right to construct...a well house such as he had erected on Lori Ferguson s property when all the evidence fails to establish any need whatsoever for such a structure. Indeed, the evidence is to the contrary. The plaintiff s fear that his well will freeze in winter is supported neither by the experiences of Arnold Howatt nor the expertise of Peter Joostema. According to all the credible and persuasive evidence, an above ground well house is not essential to the plaintiff s proper enjoyment of the easement. Furthermore, the original grant of easement from the Fergusons to the Howatts was limited by the verbal agreement between them to the effect that no above ground well house would be constructed.

15 Page: 13 [41] The plaintiff further seeks a declaration that he has a right to the use of the water on the site of his well. If by this he means a right to water from the well, he has that right. It is granted to him by the easement and he needs no declaration in that respect. As already noted, the defendants recognize that right. [42] He also seeks an order requiring Lori Ferguson to return the surrounding land to the condition it was in prior to the infilling done on the lot, presumably during the building of her house. The assessment conducted by Mr. Joostema reveals that under normal conditions surface water would not collect over the existing below grade precast concrete well enclosure. The precast concrete well enclosure appeared to Mr. Joostema to be in good condition with no visual signs of cracks or water seepage within the enclosure. [43] The well cover on the steel casing was seen to be cracked and a portion was missing, thereby exposing the well to the immediate environment within the well enclosure. However, the external elevation survey indicated positive surface runoff drainage in the immediate area of the precast concrete well enclosure, with an approximate horizontal gradient of 5 to 6 percent away from the well enclosure. This means no water collection over the well enclosure and, while there is a possibility for temporary or seasonal flooding of the well vault by local snow melt accumulation, it is Mr. Joostema s opinion that the deep static water level of this well suggests that water table flooding would be unlikely. [44] In the result, and based upon the weight of the available evidence, there appears to be no requirement for the order sought, nor for an injunction to prevent the defendants from diverting water into the well site. [45] By his statement of claim the plaintiff also seeks damages for the loss of the reasonable use and enjoyment of his home, as well as the cost of repairs to the well, water system within the home and leading to the well. [46] The plaintiff s son, as well as a friend who testified on the plaintiff s behalf, both stated that there has been no running water in the plaintiff s residence since the defendants dismantled the well house. They apparently blame the defendant for...removing all protection put on the well. There is absolutely no evidence, however, from which the court can conclude that the removal by the defendants of the well house somehow caused the disruption of the plaintiff s water supply. [47] Indeed, during Mr. Joostema s site inspection he had personnel of Moore Well Drilling Inc. do an assessment of the infrastructure located at the wellhead. It was determined that the submersible pump was functional and the only component required to make the system operational was a pressure switch. A new pressure switch

16 Page: 14 was installed and the well was activated. A ground water sample was collected from a hose connected to the water line prior to the pressure tank at the plaintiff s residence after a total of approximately 600 imperial gallons of water was purged from the system. This amount represents an estimated 9 times the total storage in the well, the distribution line and the pressure storage tank. [48] The ground water sample was collected using standard industry protocols. It was analysed by P.S.C. Analytical Services Limited of Bedford, Nova Scotia, and a bacteria analysis was computed at the PEI Provincial Laboratory. No indications of rural runoff or sea water intrusion were observed in the sample. Also, it was determined the water is safe for drinking. [49] There is no discernable reason for the plaintiff not having had fresh water. There is an indication in Mr. Joostema s report to the court that some of the water lines within the basement of the plaintiff s home are in need of repair. However, there is nothing in the evidence to support a conclusion that somehow the defendants are responsible either for the plaintiff s lack of water or for the condition of the water lines in the basement of the plaintiff s home. [50] Finally, the plaintiff seeks an award of punitive damages. It has been held that punitive damages may only be awarded in respect of conduct which is of such nature as to be deserving of punishment because of its harsh, vindictive, reprehensible and malicious nature. Where such an award is made the conduct must be extreme in its nature and such that by any reasonable standard it is deserving of full condemnation and punishment. (see, e.g., Vorvis v. Insurance Corporation of British Columbia, [1989] 1 S.C.R. 1085, at pp ). [51] There is no basis upon which to ground an award of punitive damages in this case. In fact, I find the defendant s conduct has been very reasonable throughout this unfortunate matter. They have consistently acknowledged and accepted the plaintiff s rights to a fresh water supply under the easement. They have attempted to address the plaintiff s concerns by offering to construct, at their expense, a suitable well house, or to provide to the plaintiff, again at their expense, an alternate source of fresh water. These attempts, as reasonable as they were, were rejected out of hand by the plaintiff. [52] From all the evidence, including the expert report, I draw the following conclusions: a) the plaintiff is solely responsible for the cost of removing the debris from the well enclosure, for the cost of repairing the water lines in the basement of his home, for the cost of replacing the sanitary well cover and for the cost of installing a new seal on the concrete cover;

17 Page: 15 b) there is no requirement for an above-ground well house at the plaintiff s well site. The styrofoam insulation shall be applied at the defendants expense; c) the plaintiff has no right to pass over the five foot wide right-of-way to gain access to the well site. The deed of easement grants access to this right-of-way for the sole purposes of maintaining, inspecting, altering and making repairs to the water carrying line. Other than those purposes, the plaintiff shall gain access to his well site from the adjacent road; d) in accordance with the deed of easement, the plaintiff shall not access the right-of-way or the well site without giving reasonable prior notice to the defendants, specifically Lori Ferguson. In the circumstances reasonable prior notice shall be construed as not less than 24 hours notice in writing. In the case of an emergency where a 24-hour written notice is not practicable, the right-of-way and/or the well site may be accessed by a licensed plumber or other such tradesman acting on behalf of the plaintiff. Such a person shall be granted access to the right-of-way and/or the well site for the purposes of inspection to ascertain the nature of the emergency and to deal with it. [53] For all of the above reasons the plaintiff s claim against the defendants is dismissed. COSTS [54] This clearly is a case that never should have gone to trial. The evidence establishes to my entire satisfaction that over the course of time since the dismantling of the plaintiff s well house, the defendants have made reasonable offers to settle the plaintiff s claim. For whatever reason, he did not see fit to settle the matter. The defendants should have their costs. The defendants have requested to have their costs on a solicitor and client basis. This case was heard before the amendments to the cost Rules, so the issue of costs should be determined under the former Rules. There is no precise evidence as to the timing of the offers to settle. The plaintiff did testify that the first time he learned of the offer to connect his water supply to a new well was the Friday before the trial commenced. In those circumstances, I am of the opinion that since no trial was necessary the defendants should have their costs of the trial assessed on a solicitor and client basis, and their other costs should be assessed on a party and party basis. [55] However, I am prepared to consider written submissions on the issue of costs

18 Page: 16 which are to be filed by September 26, If no submissions are filed, I shall decide the matter of costs based upon the information now available to me. September 12, 2003 C.J.