Burpee v. Bernikier

Burpee v. Bernikier

Court found pooling along boundary caused principally by natural topography and Burpees' own construction; Bernikiers did not cause a substantial or unreasonable interference so their nuisance claim dismissed; Burpees' raising of their lot and landscaping, although it increased pooling on Bernikiers' lot, was lawful under surface water doctrine and not actionable nuisance; restrictive covenants 17, 18 and 24 were not breached (steel chain link fence considered within 'iron' ambiguity resolved for free use; north side had been disturbed during construction so covenant 24 not breached).

Citation
2013 NSSC 272
Parties
Plaintiff/defendant by Counterclaim: Ray Burpee; Plaintiff/defendant by Counterclaim: Dianne Burpee; Defendant/plaintiff by Counterclaim: Erika Bernikier; Defendant/plaintiff by Counterclaim: Sheldon Bernikier; Defendant/plaintiff by Counterclaim: St. Andrews Village Estates Limited
Court
Supreme Court of Nova Scotia
Jurisdiction
Canada
Judgment Date
24 September 2013
Procedural Posture
Civil (nuisance; Restrictive Covenants) / Trial Judgment (decision)
Outcome
All claims dismissed. Burpees not in breach of Restrictive Covenants 17, 18 and 24.
Legal Topics
Nuisance, Surface Water, Restrictive Covenants, Damages, Interpretation of Covenants
Source Language
English
Property Law Tort Law Contract Law Nuisance Surface Water Restrictive Covenants Damages Interpretation of Covenants

Case Brief

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Parties

Ray Burpee

Plaintiff/defendant by Counterclaim

Dianne Burpee

Plaintiff/defendant by Counterclaim

Erika Bernikier

Defendant/plaintiff by Counterclaim

Sheldon Bernikier

Defendant/plaintiff by Counterclaim

St. Andrews Village Estates Limited

Defendant/plaintiff by Counterclaim

Procedural Posture

Civil (nuisance; Restrictive Covenants) / Trial Judgment (decision)

Legal Issues

  1. 1 Whether Bernikiers liable in private nuisance to Burpees for drainage alterations
  2. 2 Whether Burpees liable in private nuisance to Bernikiers for raising lot/landscaping and driveway construction
  3. 3 Whether Burpees breached Restrictive Covenants 17, 18 or 24 and appropriate remedy

Ratio Decidendi

Court found pooling along boundary caused principally by natural topography and Burpees' own construction; Bernikiers did not cause a substantial or unreasonable interference so their nuisance claim dismissed; Burpees' raising of their lot and landscaping, although it increased pooling on Bernikiers' lot, was lawful under surface water doctrine and not actionable nuisance; restrictive covenants 17, 18 and 24 were not breached (steel chain link fence considered within 'iron' ambiguity resolved for free use; north side had been disturbed during construction so covenant 24 not breached).

Court Disposition

All claims dismissed. Burpees not in breach of Restrictive Covenants 17, 18 and 24.

Orders

  • Burpees' action against the Bernikiers dismissed
  • Bernikiers' action and counterclaim against the Burpees dismissed