Jan 22, 2019

Drill Your Own Well (unless there is an agreement to the contrary)

Lohse v. Fleming, 2008 ONCA 307 (CanLII)

Mr. and Mrs. Lohse (“Lohse”) were seeking a declaration that they had an easement which entitled them to domestic water from a well (the “Well”) located on Mr. and Mrs. Fleming’s (“Fleming”) property. The Lohse’s lay claim to the water located entirely on the Fleming’s property. The Fleming's Well is serviced by an electric submersible pump, a pressure tank at the surface, and is connected to the Lohse’s property via underground pipes.

The Well water used to be supplied to a number of properties owned by different persons. As time went on, the properties relying on Fleming's Well drilled their own wells and no longer required the domestic water provided by the Fleming's Well.

By the time the Lohse’s commenced their lawsuit, they were the only people who still relied on the Fleming’s Well for water.

The Lohse's had conditions pertaining to Well water in their Agreement of Purchase and sale; one of the conditions was that the vendor will supply water at an annual rate to be paid before May 1st each year. Therefore, any party receiving the water from the Well was required to pay a fee. This is exactly what took place. Over the years, those parties who used the Well water paid the Fleming’s a fee for that use; these fees covered the maintenance and repairs needed to assure that the Well is in good working order.

Sometime in July 2003, the Fleming’s wrote to the Lohse’s advising them that the supply of water from their Well will be terminated. They made reference to a provision in the Agreement of Purchase and Sale which stated that they would supply water for a term no longer than 6 months. In addition, they advised the Lohse’s that they are the only property who has failed to drill a well on their own property.

The Lohse’s claim to have an easement over the supply of domestic water from the Well.

The trial judge, without reservation, stated that this is not an easement case.

This is not an easement case. Water rights and the subject of easements can be applicable in a negative way where the movement or supply of water requires no positive step but a refraining from taking negative action which might otherwise impede water movement or supply. This is not a case, which might be applicable with a dug well, where a party asserts a right of entry upon property for the purpose of drawing from an openly exposed dug well. In such a fact situation an easement to permit access might be found to exist.”

The trial judge also noted that covenants that require spending money or doing a positive act do not run with the land in law or in equity. Further, the trial judge states:

Simply put the supplying of water from a drilled well serviced by a motor and pressure system into a trunk piping supply conduit system and maintenance thereof requires the doing of many acts and the expenditure of money. These are positive acts.”

The Court of Appeal confirmed the finding of the trial judge and stated that the positive nature of the obligation prevented the Lohse’s from obtaining an easement, absent privity of contract.

Now, the next question…is there a contract?

The Lohse’s point to a letter in which the Fleming’s states that they will provide the Lohse’s with domestic water for a price, and that the next billing cycle will occur on September 1, 2003. The Lohse’s argue that this constituted a contract and that this was reneged by the Fleming’s in July 2003, when they advised that the supply of water will be terminated on May 31, 2004.

The Appeal Court assumed that there was a contract, but they also said that they are not convinced that this agreement is meant to last forever.

The Appeal was dismissed.

Lesson? Don’t stick your hand in that which does not belong to you. If you do...make sure you have a valid contract.