This case was heard in the Supreme Court of Newfoundland (Trial Division).

The Town Council of the Town of Gambo applied for a Court declaration that the Dwyers had constructed a dwelling house illegally on their property, and the Council also requested an injunction to prevent the Dwyers from interfering with a brook on their land. The Council claimed that several of the Dwyers’ neighbours had been using the brook for sewage disposal purposes for decades, and that by interfering with the flow of the brook the Dwyers were interfering with their neighbours’ property rights. In turn, the Dwyers alleged that their neighbours’ use of the brook for sewage disposal purposes was a nuisance that interfered with their own property rights, and they also claimed that the Council had exacerbated flooding problems on the Dwyers’ property by increasing the width and depth of the brook, thereby increasing its water flow.

After considering the complex history of the property titles, building permits, and sewage disposal systems in the area, the Court held that both parties should succeed on some issues and fail on others. The Court held that the Dwyers had in fact constructed their residence illegally, and although they had certain property rights in their land, their neighbours had been using the brook for so long that they had easements (rights of way) that gave them rights to use the brook for sewage disposal. The Court also held that that the Council had in fact exacerbated flooding problems on the Dwyers’ property, and that the Council had also contributed to the problem by granting illegal permits to the Dwyers. The Court therefore apportioned liability and costs between the parties.

View the Decision on CanLII: https://www.canlii.org/en/nl/nlsctd/doc/1990/1990canlii7144/1990canlii7144.html

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