A Kootenay property owner is being ordered to pay the costs associated with tearing down his fence, which a B.C. Supreme Court judge found had caused an “actionable interference” with his neighbours’ easement rights.
Justice Murray Blok’s decision on the fence dispute was posted online Thursday, outlining a disagreement between property owners near Radium Hot Springs.
“As the saying goes, good fences make good neighbours,” Blok wrote. “This case is about an allegedly bad fence, a fence that has had a negative effect on the relations between three neighbours.”
Blok explained the properties impacted by the fence are “large, rural acreages located in a mountainous area.” When Allen and Teresa Mazar bought their property in 1991, they determined there was no road access, except for “an old game trail and wagon track.” The Mazars made an agreement with another property owner to build a road that followed that track.
The two-kilometre access road runs north to south, impacting three properties, the court heard. It begins on Scott Hay’s property, passes through the Mazars’, then ends on Richard Thompson’s property.
In 1998, Thompson and the Mazars registered an easement plan as Thompson uses that road to access his property. When Hay bought his land in 2015, he became bound by the terms of that same easement. Part of that agreement required the owners to bear the costs of maintenance and upkeep, including snowplowing in the winter, and grading and pothole filling in the summer and fall.
Fence built without permission
Nearly six years after purchasing his property, the court heard, Hay began construction on the fence, which he said was just around his “main yard space.” Hay told the court he wanted to limit cattle entering his yard, adding they’d damaged his chicken feeders, eaten his garden plants, knocked over stacks of wood and rubbed against support beams for an outer deck, which caused it to collapse. Hay also said he was concerned for his young children’s safety around the cattle.
“Mr. Hay gave no notice of his intention to construct a fence and he did not seek permission to do so from either Mr. Thompson or Mr. Mazar,” Blok wrote. “Once he became aware that the fence was being constructed, Mr. Thompson attempted to halt the construction and reach an agreement to move the fence off the roadway, but these efforts were unsuccessful.”
Blok explained the fence dispute is only about the part that was along the roadway, adding the “contentious section” is 345 metres long and is within the easement area.
According to Blok’s decision, Thompson was concerned the fence would restrict the home owners’ ability to maintain the road. When he expressed those worries to Hay, the court heard, “the ensuing dialogue was unconstructive and unpleasant.” Both Thompson and the Mazars retained legal counsel, sending letters to Hay, asking him to remove that portion of the fence.
Fire drill raises concerns
In May 2021, not long after the fence was installed, Radium Hot Springs Fire Department conducted a fire drill exercise at the properties. Blok wrote 15 to 20 firefighters attended the area, bringing with them two fire trucks and an ambulance.
“The two fire chiefs who were present both expressed concerns about accessing the property in winter given the presence of the fence, as their trucks needed as wide as possible a road to account for icy conditions,” Blok’s decision said. “Road access for emergency medical assistance is a concern for Mr. Thompson, as he is 77 years old, has health issues and recently suffered a stroke.”
The Mazars told the court they too were concerned about emergency access to their property, as Allen “has some severe health issues” and Teresa is quadriplegic.
“They rely on regular visits by homecare workers who attend twice a day, seven days a week, to assist with their medical needs,” Blok said.
Additionally, both Thompson and the Mazars expressed the fence would make snow removal more difficult, because the fence would prohibit them from ploughing the snow over the road’s embankment and into a ravine area. Thompson also claimed road repairs were restricted, because he couldn’t pull gravel from the shoulder of the road.
“Mr. Thompson said that he takes no issue with Mr. Hay’s desire to prevent cattle and trespassers from entering the area near his home,” Blok wrote. “He noted, however, that the cattle involved are those that Mr. Hay himself has allowed on his property under a grazing lease and, further, that Mr. Hay typically leaves his gate open during those times he is on his property, thus allowing cattle free access.”
‘Abate a nuisance’
In November 2021, Thompson, through his counsel, received a professional engineer’s report that recommended that contentious portion of the fence be removed immediately, saying it “interfered with the safe operation of the driveway.” Thompson also argued the fence impacted his rights in the easement, which says he should have full access in order to repair and maintain the area without restriction.
After receiving the engineer’s report, Thompson hired contractors to take down the fence, but Hay said he wasn’t told the fence was being taken down until the actual day of its removal.
By law, a party is permitted to “abate a nuisance” as long as the method they use is the least detrimental of the options available, Blok explained in his decision.
“Here, the plaintiff (Thompson) says he acted reasonably by giving notice of the nuisance and requesting removal of the fence, attempting to resolve the issue amicably, acting only after receiving an expert’s report from a professional engineer that indicated urgent abatement was needed to remove a hazard, and removing the fence in a manner that preserved all but five fence posts and providing replacement barbed wire,” Blok wrote.
“The plaintiff notes that he took the least intrusive means possible to remove the fence, and his contractor always remained within the easement area in order to carry out that work.”
Thompson sought $1,500 to pay for the fence removal, adding changes should be made to the easement so costs are split equally.
Hay filed a counterclaim, which he said was “about having certainty with respect to his rights as a property owner,” and argued he shouldn’t have to pay any associated costs, but instead sought damages for trespassing as well as costs associated with replacing the torn down fence.
While Blok accepted Hay’s reasoning for wanting to build the fence, he disagreed that this was the only suitable location for it. Instead, Blok said he was satisfied the fence was placed in a way that interfered with Thompson’s snow ploughing and road maintenance. Blok also determined Thompson had a right to be on the property to remove the fence and there was no less detrimental way he could’ve done so.
“I am also satisfied that the fence removal was carried out in a manner that preserved the fencing materials as much as possible,” he wrote.
Blok ruled in Thompson’s favour, ordering Hay to pay $1,500 for fence removal costs. He also granted an order that would restrain Hay from interfering with Thompson’s easement rights, including by constructing another fence. Blok determined costs for adjusting the easement would be split 75-25, with Thompson paying the higher amount.
Hay’s counterclaims were dismissed.
