Audette v. O'Cain

Audette v. O'Cain

The Supreme Court held that the ice-house was constructed and operated in a manner that increased the flow of meltwater onto the lower land (estimated 50,000 gallons seasonally), thereby aggravating the natural servitude; waters caused or increased by human activity are not waters the lower owner must receive, so the defendant was liable for injury, the injunction and abatement ordered by the Court of King's Bench were justified and the appeal was dismissed with costs (Girouard J. dissenting).

Citation
(1907) 39 SCR 103
Parties
Appellant/defendant: Jules Audette; Respondent/plaintiff: Peter O'cain
Court
Supreme Court of Canada
Jurisdiction
Canada
Judgment Date
24 June 1907
Procedural Posture
Possessory Action (possessoire) on Appeal / Supreme Court of Canada on Appeal From Court of King's Bench, Quebec
Outcome
Appeal dismissed with costs; judgment of Court of King's Bench affirming plaintiff's action affirmed (Girouard J. dissenting).
Legal Topics
Servitude, Nuisance, Injunction, Damages, Abatement, Civil Code Interpretation, Possessory Remedies
Source Language
English
Property Law Servitude Nuisance Injunction Damages Abatement Civil Code Interpretation Possessory Remedies

Case Brief

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Parties

Jules Audette

Appellant/defendant

Peter O'cain

Respondent/plaintiff

Procedural Posture

Possessory Action (possessoire) on Appeal / Supreme Court of Canada on Appeal From Court of King's Bench, Quebec

Legal Issues

  1. 1 Whether construction and operation of an ice-house on higher land aggravated the natural servitude affecting the lower land
  2. 2 Whether owner of lower land is obliged to receive waters produced by human activity (meltwater)
  3. 3 Whether the proper remedy is a possessory action entitling injunction and abatement and assessment of damages

Ratio Decidendi

The Supreme Court held that the ice-house was constructed and operated in a manner that increased the flow of meltwater onto the lower land (estimated 50,000 gallons seasonally), thereby aggravating the natural servitude; waters caused or increased by human activity are not waters the lower owner must receive, so the defendant was liable for injury, the injunction and abatement ordered by the Court of King's Bench were justified and the appeal was dismissed with costs (Girouard J. dissenting).

Court Disposition

Appeal dismissed with costs; judgment of Court of King's Bench affirming plaintiff's action affirmed (Girouard J. dissenting).

Orders

  • Damages assessed at $10 to date of action
  • Right to recover subsequent damages reserved