Water

Question 1

3 categories of water

Answer 1

Surface - rain, snowmelt, smoothes over land, is temporary and can give rise to tort issues. You can protect with sandbags in flood. Not obligated to accept flow of surface water. But you cant pump water from your property to your neighbors. If you had control you cant release it.

Water in a watercourse - defined channel above or under ground. Subject to RR. Tidal water riparian land is at the mean high water mark.

Percolating water - underground water that trickles/oozes like water through a sponge - not a watercourse because it isnt a defined channel.

Question 2

Riparian rights

Answer 2

Natural right attaches to land. Mostly subsumed by BC water act. Comes from england, which is wet so may not be appropriate in dry places.

CL riparian rights for domestic or stock use “ordinary use” - right to deplete water completely for ordinary use.

Extra-ordinary sue: irrigation, commercial, right to take reasonable amount without significantly reducing the volume/flow or quality.

2 opinions: 1. johnson- rr remains for defined channels, unless other party has authorization to it.
2. RR extinguished (steadman schillinger) - can stull sue for nuisance or negligence

Question 3

johnson

Answer 3

(1937) RR still exists under Water Act, but cant be used against a party with a license. Defendent was not lawfully using water, infringed on RR of plf.

Question 4

Schillinger

Answer 4

RR can exist only for a person lawfully using the water and the only way to acquire the right to use and flow in any stream is under the water act (need a license). Domestic use is not prohibited by water act. Plf was using water for industrial purposes without license, water was polluted from upstream but no rights so no action.

Question 5

Steadman

Answer 5

BCSC - small rock business. RR rights extinguished. Does plf have right to damages for contaminated water even if he doesn’t own it ? YES considered domestic use and dfd has no legal justification to pollute water.

Question 6

Bradford v Pickles

Answer 6

(1895, engl.) landowner can extract percolating water for any purpose with no regard for others, no one has right to receive percolating water. Note: pugliese casts doubt on applicability of this case in canada (no absolute right to percolating water balanced against no absolute right to support) . legislation also probably overrides this. Note also difference between this and campbell is that campbell was about nuisance and balance of interests, this was about rights.

Question 7

1995 Water Protection act

Answer 7

Vests all groundwater in government. Water act therefore applies. 3.2 gives title and right to use of percolation and groundwater to gov. s42(2) still allows domestic use of unrecorded water