[Old man Adam]

Real Property Rights - Manitoba, Canada

First post here and it looks like an interesting site. Don’t know if Captain Forest is around because it looks like he may be familiar with Manitoba law and might be the answer to my dilemma. Two issues to discuss.

Item (1). Purchased within a small village a 6.5 acre property and home almost 18yrs ago in late Fall. Our lawyer did a title search and it came back clear. The following Spring after the snow was gone we noticed buried underground the end of a large culvert which was discharging water onto our property during a heavy rainfall. I spoke to the original home builder about this immediately. The former owner told me that Town Council had approved and instructed their Public Works Dept to bury a public works device underground on the property approximately ten years prior to our purchasing the lot & home. The public works device was never registered in the Land Title Office nor was an easement ever secured with the owner at that time. He sold the property.

I immediately wrote to the Town Council and asked them to remove the culvert which they refused to do. Now every time it rains all of the water from this end of town drains on our land and the water stays there stagnant/mosquitoes unless it evaporates naturally due to long term very warm weather. This issue has been ongoing since the time we noticed the culvert. The culvert is some 350 feet in length and because it has been underground so long it is apparently deteriorating and has cause one collapse near my driveway so far.

Issue (2). The land owner immediately West of our property acquired permission to develop a housing project on his vacant land. The developer plans on subdividing his property to accommodate 48 new homes. Last year he constructed a drainage ditch/swain some 1/4 mile in length and approx. 20 feet wide and 5 feet deep with the approval of Council and the Provincial Community planning Dept. This huge ditch was constructed in order to drain all of the surface water and runoff from his property onto ours. The developer is also raising the height of his property having dumped some 6000 tandem loads of fill. The Town Council refuses to address this matter as does the Provincial Department responsible for the Water Rights Act.

I am a Pensioner on a fixed income and I do not have the resources to spend 5 years in litigation only to be told that my grievance is recognized but that there is nothing the court can do $15k later. This week the Town Administrator indicated that Council is exercising its claim for the public works device based on a hostile “prescriptive easement”. Searching Wikipedia on this topic it states that the easement has to be legally binding with the true land owner. Can you elaborate please as it applies in this Province. Any suggestions would be most appreciated. I don’t know where to turn anymore.

Old man Adam

[ScottGem]

First on the culvert. Your only recourse here (and it may be too late) was to sue the person you purchased the property from as well as the realtor who handled the sale. The existence of the culvert was a material item that should have been revealed before purchase.

I'm not sure about how it works in Canada, but most governments have the ability to take an easement on private land for such things. I would think they are responsible for maintaining the culvert, but not the result of the run off.

On the development, you would appear to have a case (were there hearings about allowing the construction of the drainage?) against the developer. But to exercise your rights you need to fight it in court. Maybe you can see if the ditch violated some environmental laws and obtain a court order based on that.

The only other thing I can think of is to dig your own drainage to try and funnel the water off your property into a sump or similar. Or at least a far corner of your property.