Summary

40659

Harwood Farms Ltd., et al. v. Western Irrigation District

(Alberta) (Civil) (By Leave)

Keywords

Property — Covenants — Watercourses — Whether the Court of Appeal erred in law and in fact in upholding the trial judge’s finding that a natural watercourse was present — Will the interpretation of what qualifies as a natural watercourse introduce unnecessary uncertainty and confusion for the determination and management of water issues, locally, inter-provincially and federally — Whether the inconsistent definitions and interpretation of what constitutes a natural watercourse requires clarity and synchronization.

Summary

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The applicants, Harwood Farms Ltd. and Mervin Harwood, operate an agricultural business involving crops and livestock on 4.5 sections of land northeast of Strathmore, Alberta. The lands were acquired by the applicants and their predecessors between 1942 and 1990. The respondent, Western Irrigation District, is responsible for conveying and delivering irrigation water to farmers, ranchers, rural municipalities, and other water users. It diverts and conveys water from the Bow River into its canals during irrigation season and uses spillways, underdrains and relief gates along its system to release drainage water from snowmelt and precipitation to protect infrastructure. The applicants own land immediately adjacent to one of the respondent’s irrigation canals. The certificate of title for the land is subject to a restrictive covenant which grants the respondent the right to “without liability direct or indirect spill water from its main and secondary canals into any natural water courses in, on or upon the said land”. The applicants concede that the restrictive covenant permits the respondent to spill water from the canal, but only if it is spilt into a natural watercourse.

The applicants commenced an action and sought injunctive relief to prohibit the respondent from using the relief gate it had installed on the canal that would spill water on to the applicants’ lands. The applicants’ claim and subsequent appeal were dismissed.

Lower Court Rulings

June 16, 2021
Court of Queen’s Bench of Alberta

2001 06831, 2021 ABQB 467
Applicants’ claim dismissed
January 16, 2023
Court of Appeal of Alberta (Calgary)

2023 ABCA 16, 2101-0191AC
Appeal dismissed