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Beaid •• •• •• .. ..27 Kelly V. O'Grady • Miller V. The Grand Trunk Railway .. ,. 2 Murray V.Dawson .' 3. JJ. 13. 23 McGillivray v. Millin Riddell v. McKay Vestry of St. Pancras v. Batterbury . . . . 34 7636 AN ACT RESPECTING DITCHES AND WATERCOURSES. [Assented to 1st February, 1883.] TTEK MAJESTY, by and with the advice and -^-■- consent of the Legislative Assembly of the Province of Ontario, enacts as follows :— Sho7't title. 1. This Act may be cited as "The Ditches and Watercourses Act, 1883.'' The Acts in force at the time of the passing of this Statute relating to Ditches and Watercourses were R. S. O. cap. lyg; 41 Vict. Ont. cap. 12 ; 43 Vict. Ont. cap. 30. all of which were repealed by this act. Vide sec. 22. Certain Acts not affected. 2. This Act shall not affect the Acts relating to Municipal or Government Drainage. The Acts relating to Municipal and Government dvpAnr.^^. are R. S. O. cap. 33; R. S. 6. cap. 30, sec. 51 et seq; 44 Out.Vict. cap. 3 ; 46 Vict. Ont. cap. 18. sec. 570, et seq. 2 PROVINCE OF ONTARIO. It was held in the case of Miller v. The Grand Trunk Rail- way Co., 45 U. C. R. p. 222, that Railway Companies are not subject to the provisions of "The Diiches and Watercourses Act," R. S. O. cap. 199, except as provided by the sec. 13 of the Act, when they would be benefited by the work done. The ground upon which this decision proceeded was, ist., because that Act began (sec. 2) by declaring, "this Act shall not affect the Acts relating to Municipal Institutions, or the Acts respecting Drainage, as this Act is intended to apply to individual, and not to pnblic or local interests, rights or liabilities:' 2ndly, (to use the words of C. J. Hagarty,.) "Because the whole design of the Act seemed to be to provide for the case of individual owners; in its own words, ' to enable the owners to cultivate the same,' " And 3rdly, still using the language of the learned C. J., because "sec. 13 specially meets the case of a municipal corporation, which provides that when that corporation would be benefited by the construction of the ditch or drain, they shall be in the position of an individual under the Act. This especial kind of corporation is to have the benefit of the Act, but only when it may be benefited by the provisions of the Act. The plaintiff here seeks to apply it to a wholly different corpora- tion where the benefit sought may be wholly for the idjoining proprietor." It will be observed that this Act does not exclude from its operation in express terms (as did R. S. O, cap. 199 sec. 2,) municipal institutions and public or local interests, rights, and liabilities, and confine it to individual interests, rights or liabilities. It would appear from a perusal of the above care and a comparison of this section and the corresponding section of the Act repealed by this present one, that the L( islature meant by omitting from this Act the words to which we have referred, to extend the provisions of the statute to all corporations, and this we submit it has done, although the question of its true construc- tion might have been placed beyond all doubt, by the use of a word or two more. Il will further be observed, that while the design of cap. igg, as expressed in sec. 3, was to enable 1 1 DITCHES AND W TERCOURSES. 3 the owners to cultivate the land, the design of this Act as expressed in sec. 3. is to enable thern the better to cultloate the same. It will be further observed that sec. 17 of this Act. unlike sec. 13 of cap. 199. does not confine the liability of municipal corporations to cases where they would be benefited by the constructions of the ditch or drain, but places them in the same position as individual, owners. It will therefore be seen that the arguments of the learned Chief Justice in the above case, would be of no force in an action brought^nder this statute. In McGillivray v. Millin, 27 U. C. R., p. 62.. the facts were as follows : The plaintiff owned land south of. and higher than the defendant's land, and the surface water in the spring and fall drained off in a channel of no definite width from the upper part of his lot to the lower, and thence to defendant's land, into a pond from which no e.xit was proved, and which with the rest of the low land was usually dry from April to November The plaintiff had dug a ditch to facilitate the drainage through his own land, and defendant three or four years ago had allowed him to plow a furrow in his land, with the same object. This the defen- dant afterwards obstructed, and the plaintiff sued. It was held that there was no right of action, for he was not a riparian proprietor, and there was no proof of any easement, and there was no natural drainage at the spot obstructed until the ditch was dug there. It was intimated bv the Chief Justice, that the proper remedy was under the " Ditches and 'Watercourses Act." See also Murray v, Dawson, 19 U. C. C. P. p. 314. Where there is not a natural watercourse, the proper remedy is under the provisions of this Act. * PROVINCE OF ONTAKIO. Owners of adjoining lands to constmct ditches in certain proportions, 3. In case of owners of lauds, whether imme- diatdy adjoining or not (a), whioh would be benefited by making a ditch or drain, or by deepening or widening a ditch or drain already made m a natural watercourse, or by making deepenmg or widening a ditch or drain for the purpose of taking off surplus water (b) or in order to enable the owners or occupiers thereof the better to cultivate or use the same (c) such several owners shall open and make, deepen or widen, a just and fair proportion of such ditch or dram according to their several interests in the construction of the same ; and such ditches or drains shall be kept and maintained so opened deepened or widened by the said owners respec- tively, ana their successors in such ownership in such proportions as they have been so opened deepened or widened, unless in consequen'>,e of altered circumstances the engineer (d) herein- after named, otherwise direct, which he is hereby empowered to do upon application of any party interested, in the same form and manner as is hereinafter prescribed in rcsnect nf fho ^».,-„;«„i opening, dtepenmg or widening; and in case DITCHES AND WATEBCOURSES. 5 tl.e engineer finds no good reason for such :z£s a: ;!!:z': '''''''''' '''"'-"'' («) The former statute only annlied tn fh^ occupying adjoining land. R SO cap .00 "" e"°'" under that statute it was essentalthT.l^^' """' ^^ ^° '^^' the word "adiaconi" ..,„ T! i /, 3, which enacted that im ■■ T',i= „ '' ^ ^'^'^^ '° ">« word •■ adfoin ing. n].s present statute goes even = i;,.i , .u ^"J"'"- provisions i. is not necessarv ,h,7 ,K '""/""'■er. By i,s adjoin or be adjacen.Toeac7o.her! ^"'^ '"'"'"' ^■"'" widening 'a ^ i.T ordr":' I'/^^lt' '" '"^ "^^'""'"^ ^ are not in the present statute. '^ "'"""''^ .he swamp or low ntv and""".? "l °"'"'""" '° ^"'«-"' siderin, sL for.: a" ifs': j'. ! thirr:,"^ ^'' ""■ occnp,ers .he i.«„ ,„ ,,ui.L or use the 1 T",!" ." one covers the o.her Tl,, i, ' '*''''">■ the l«ler statute warno doubt r°*° '," "" '^"«-S« "' ""> of the swampy po:.- r^rthro^urr^ """"^"^ ^°°'""°'' .nat't'erVwrrreferrr "' ''™" ^"""^ '° "»- «-a 6 PfiOVINCE OF ONTARIO. Sec. 3 has been amended by 47 Vict. cap. 43. sec i ^see Post.,.,e 53) and the following sub-section haf been added Proper outlet must be reached. (2) Every such ditch, or drain, shall be con- inued to a proper outlet, so that no lands, un- less with the consent of the owner thereof, will be overflowed, or flooded, through, or by the construction of any such ditch or drain, and it shall be lawful to construct such ditch, or drain through one or any number of lots until the pro' per outlet is reached. An engineer to carry out this Act to be appointed by every Municipal Council 4. Every Municipal Council shall, upon the passing of this Act, name and appoint bv by-law an engineer (a) to carry out the provisions of this Act, and such engineer shall be and continue an officer of such corporation until his appointment 18 repealed by by-law and another engineer appointed in his stead, who shall have authority as well to take as to continue any proceeding already commenced under this Act. (a) By sec. 21 of this Act the word '• engineer" shall mean r:;!..'^^.^::^^^' ^^^^ ^^y^^^^-- - --^ person as any munici- K-»^- uy uy-.aw may deem competent to perform the duties required under this Act. DITCHES AN. >^ATERCOURSES. Proceedings to effect an agreement in case of dispute. 5. In case of dispute between owners resne.t- mg such proportions any owner slmll, before fiUng w.th the Clerk of the Municipality the equ,„t,on proviaed for in section six of tins Act (Form C or to the like effect), („) serve upon the other owners or occupants of the lands to he affected a notice in writing signed by him (Form B or to the hke effect) naming a day, hour an,l place convenient to said ditch or drain at whicl, the parties are to meet and, if possible, agree upon the respective portions of such ditch or drain to he made, deepened or widened by each of them (6), such notice to be served not lens than SIX clear days before time of meeting (<■) and m case at such meeting an agreement shall' be come to between the parties, such agreement shall be reduced to writing (Form A or to the I.ke effect), and shall be signed by all the parti, s and shall, within four clear days from the sign- mg hereof, be filed with the Clerk of the Muni- cipality in which the land requiring such ditch or dram is situate, and such agreement may be enforced in like manner as an award of the engineer as hereinafter nrnvi,1<.w u\ This clause was intended to bring about an amicabV atangen-en. be.weeu the different owners. Before ^Zlel 8 PROVINCE OF ONTARIO. ing in the manner jiointed out by sec. 6 of this Act th shall — e owner («) ist. Serve upon the other owfurs or occupants of the land to be affected a notice in writing signed by him. naming a day, hour and place, convenient to the ditch or drain in question, at which the parties are to meet, and if possible agree upon the respective portions of such ditch or drain to be made, deepened or widened, by each 5f them. A form of such notice will be found on page 32. Form B. (b) 2nd. The notice must be served not less than six clear days before the time appointed. As to mode of service see sec. 10. (c) If the parties come to an agreement at such meeting it sha be reduced to writing and signed by all of them, and shall wilhin four days from the signing thereof be filed with the lerk of the Municipality in which the land requiring such ditch or drain is situate. For Form of agreement see torm A, page 31. (d) See post, sees. 13. 14, 15. Proceedings in case no agreement is come to. 6. In case the parties at such meeting shall not agree, any owner may file with the Clerk of the Municipality in which the lands requiring such ditch or drain is situated a requisition (Form C or to the like effect) shortly describing the ditch or drain to be made, deepened or widened and naming the lands which will be affected thereby and the owners respectively, and re- questing that the engineer appointed by the y i y DITCHES AND WATERCOURSES. 9 Municipality for the purpose shall attend at the t.rae and place named in the requisition («) winch Bhal not be less than .i. dear days from cast four clear days before the time appointed therein serve upon all the persons named in Buch requisition a notice (Form D or to the like effect) requiring their attendance at the said time and place, (b) -- sec'V^V ""^ '"'"'"u '"""'" """= '° "" '■ereemen. under sec. 5. ,he course (o be taken by the owner is as follows :_ wh'rih'.t 1 "■; """' "" "''"^ "'° ''"^ °' "'^ ".unic-palhy in describt 'l^rH"'''"!''■ '^ "'"''='"°" ^i'!-'^ by himse f srir--'— re-,""*'"' rf Ih/"''' • ^ •" '''"" ''^>"' °°"'^^ f^"™ 'he 'ime of the iilinc of the reqn.s,t,on mns. be given, and all the partie name! .n the requisition must be notified at least four clear d^vs before ^het,n,e appointed for proceeding with the invest "on. I he not.ce may be according to the Form D * Occupant to notify owner. J. An occupant not the owner of land, noti- hed in the manner provided by this Act shall .mmediately notify the owner the-eof. and shnll u ne neglects to do so, be liable for all damages suffered by such owner by reason of such neglect 10 PROVIN'^^'. OF ONTARIO. The nec68§n> «or such i , .i^n as thi^ is obvious ; with- out it the occupifiU »Wi-. by -oncealing the wviee of the papers upon him. r,f by refusing lo appear or permit the owner to ap^»^^' pon the taking of the proceedings und-ir the Act, caunn senoui and permanent loss to ihe owner. iMilki «/ engineer. 8. The clerk shall, after receiving such requi- sition, forthwith notify the said engineer by registered letter enclosing a copy of the said requisition to him, and the engineer shall attend at the time and place named therein {a) ; shall examine the premises, and if he deem proper, or, if requested by any f the parties, shall hear evidence, and is hereby authorized to examine <' ? pi>rties and their witnesses on oath, and may u minister an oath or affimation as in courtF jf law, and if he shall find the making, deepening, or widening of such ditch or cirain necessary, he shall, within thirty days from the receipt of the requisition by him [h), make his award in writing (Form E or to the like effect), specifying clearly the locality, description and course of said ditch or drain, point of commence- ment and termination of same, the portion of said ditch or drain to be done by the respective parties and the time within which said v-ork is to be done, the amount of his fees and otucr charges and by whom to be paid, and he shall )viouB ; with- «rvi€e of the r permit the edings un('«»r e owner. mch requi- igineer by if the said hall attend 1 {a) ; shall em proper, , shall hear to examine oath, and ,tion as in le making, jh or a rain yS from the ), make his like effect), ription and commence- e portion of e respective said v'ork is i and otucr and he shall DITCHES AND WATERCOUaSES. le 11 Imvc power to adjourn the sa.M OKaminatio. (c), of Lit yr "r """""'" "" •""• """"'^"c fiave at least four clear days' notice of time and place of attendance (d). (") The lale Slatule rediiirsH ,h. clearly- " "' '"" '■*3'"^"taD, and muse specify »t. The locality of the ditch or drain. 2nd. Its description and course. 3rd. It, point of commencement and termination, 4ec.ltX;r "'"'' '''-' '"' ''-'" '» <- "-^ by the from .nfne^t bi^"'"' V'^' "*■ ^-O"'" °P- ^ "itch farm °f .uffidet deptrtHa rTS' .?" ''^ ""°'"' "-■' to .he ditch now 'ope 1 ;7 A i^ o^^H 1 ^""°' ■•ods in length, and that B should . "' '""'^ open this same portion of di./h '""' '""P Hne fence and of suLien len.t to carroffT"' '' '"^ ditch to be two and a hoif r . ^ ^ *^^ '^^*«'"- said -«cie„twidtrardL?reXj.h:':a\;:'";t"^"V' nght to cover said ,]itnh ■ .• '"^^ater; B. having the in the sam. suf^^fen/ ^rj 0"^ '^ '""^ ^" ^^^^ ^P-« b«d for not sufBcientIvd.fi . ''''''"•" ^"^ ^^^^^ '^ ^e , -d course a„d^::^S T^Zl' '^ ^^ T"^^"^^'"^"^' '^'.'- ;v. A/„...,. .. ,r l:^:'^^''• ^^''l^on.J.,,n,hiscase. 'tiat ihe defendant ii ^ ' ^' '''' ^' '*^°' '''''^' " '^^'' direction between the part3\L:.hT^^^ *^^ ^'- ^-- parties through the plaint^fi 's farm, in all twenty 12 PROVINCE OF ONTARIO. rods m length, not specifying the point of commencement all f r ^^-^ '°"'^ ^^^^ ^'^^'•^'■'■'^'i i' reasonably as as m,ght be necessary. But she cannot be compelled to ^ive the defendant so extensive a power which he might use to stun"'; r' ^'^ ^— -— ting in a judicial capacity should not have imposed a burden on her of so unceriain a nature, or have authorised the defendant to proceed n the work just as he liked. They should have prescribed the d rect on and extent of it, so that the plaintiff might know to what extent her estate was burd. ned. and the defendant mTgh t know wuh certainty where he was to work, and what i wa he was^aut^honsed to do." See also Murray v. Da.son, x; u! 5th The time within which the work is to be done-It was held m the case of M«...^ v. Da^.son, ante, that an awlrd each ;"'1 'Z ''^^'^^ ^° ""' '"^^^ ^>- ^h« P-ties. one by each and concluded thus. ■■ said ditch to be made before the xst October. X865.- was bad. because it did not fix the time each party should have within which to perform his share of the ditching. J. Wilson. J., said. .'The lath section re quires that the fence-viewers shall decide what length o" he d.tch The award says ' said ditch is to be made before the firs day of October. 1865.' On reading it. tu^o ditcZ the defendant, beginning at the same fence. The last ditch spoken of in the award is the defendants. If the time apples lir. r"," ^'"' '°^ *'^ P'^'"^'^^° make his;' applies to the plamtiff' s ditch there is no time specified for he defendant to make hers. It does not appear b the award Ind h H f °"' ^°"^'""«"^ d'tch. but rather two ditches, make t ' "'' '^'°'"'^"^ ^'^ *^"^^ ^°^ ^°t^ P-' ties to II I DITCHES AND WATERCOURSES. 13 JruT""'T "P'" *^" '"'"" ^^^^d' *he exact words of taken IZ h'"/ T'' ""'"' "'^"^ ^^^ ^^'"^ °^^i-tion was aken, ,s to be found m Z)«„,..« v. Murray, ante, in which Judge Adam Wilson having taken a different view of (he casl''nf r "°' "^'"" "'"'^ ^'^ ^''''^'' J"^^^ "'h° d^^'ded the ^vh,ch the work was to be done was not sufficiently specified He says, page 470, "The award then proceeds: 'said d.tch to be made before the first day of October. Z865/ Now I do no see why, ,f the plaintiff had to make the drain at heT own option the provision as to time does not apply to her as well as to defendant. I think it applies to Zl of the. "But here I am met by the judgment delivered by Mr Justice John W,lson. in .y U. C. C. p. 588. who thought them had o make a separate ditch, - two ditches bemg spoken c^one to he made by plaintiff, another by defendanf. be^n mng at the same fence." In this award I find only o^e dftch spoken of that wh.ch defendant was to open through the Pl intiff's land ; and the plaintiff is to make and keep open this same portion of ditch. I„ my opinion, therefore on a different statement and view of facts the time specified is applicable to both plaintiff and defendant." .nTu ^^i! ^""'T' °^ *^" -"ginger's fees and other charges and by whom they are to be paid (For form of award.'' e I-orm E, .page 35). (c) The engineer has power to adjourn the examination Z\:-:XT ^'' ''''"''' " "-''' his report within id) The engineer may require the attendance of any other parties whom he deems interested, and they are to have our clear days notice of the tim« nnH h-^c^ ':-.. , , "' .0 be served wi.h .he notice n,e«io'„ed i^Sra; ^n^cr tamed m Form D, page 34. Ill 14 PEOVINCE OF ONTARIO. Engineer may order opening of diteh across land of a person not interested. ». If it appears to the engineer that the owuer or occupier of any tract of land i no BuffimentJy .nterested in the opening „p of the ditch or drain to make him liable to perform any part thereof, and at the same time tiZilTs necessary for the other parties that su h d tch or dram should be continued across such ^ It he may award the same to be done at the enpense said ttf" r""' ^"^ ''''' -«»' -"^h said other part.es " may open the diteh or drain across the tract at their own expense Jitho.^? being trespassers ; but causing no unnellry damage and replacing any fences opened or removed by them. ^ It was held in the case of Riddelt v. McKav I, II r i J- 92, thai the dd statute 38 Vict cap 26 m « 'A ■ only applied where the land belongTng o ^0^.^,.'^' ins owners was benelited by the work Jd ? *°'"- ownershonld payforand Lantrapor.i:ror;r"°": wa.er»,rse „hich was only of hene.Vrtit?™: Z " cuS^ -r roirirarcXitiTr r- great the convenience, indeed, the neceS ', forTh °" cultivation of his land, continue hisTwI drlln ac'ro'ssT^ ne,ghbo„r.s land into its natural channel. NoTtlS cTn be DITCHES AND WATERCOURSES. 16 Where an award directs that a drain shall be constructed through one man's land for the benefit of the land of another on the land through which the ditch is to be cut, binding pnv,es m estate as well as partes, and so long as the Iwarl remains unchanged the nature of the easement and the nghts of the parties must be governed by it. An action w^ he against the owner of the land through which the drain passes for obstructing it to the injury of the person for who e 34 uc i:ir''' '-' ^'''''''- "•^- - ^^"y - -'--^^ d Jf° 7 T'T- ^""'.'J''^^'^ ^'^ the plaintiff's land the defen- dant pleaded, justification under an invalid award alledne hat the plaintiff paid half the expense of the awL f bT It he was directed to do. and that the defendant in pursuance o It having first duly notified the plaintiff entered on the plaintiff's .and and opened the ditch there as directed by the award, do.u:3-^no unnecessary damage. It was held that the plea was bad. as setting up a right which the award, being mvahd could not give ; but that the facts might be fo^nd to Award to be filed ivith clerk. lO. The said engineer shall, when such award IS made, file the same and any plan or profile of said work with the Clerk of the Municipality named in section six of this Act, and the award plan and profile shall be official documents and may be given in evidence in any legal proceed- ings by certified copies as are other oflicfnl aoeuments («), and the Clerk of the Municipality shall forthwith, upon the fihng of said award 16 PROVINCE OF ONTARIO. rS::f\:! ''^ "^^""^ «ff-*«^ thereby by ('^j See R. S. O. cap. 62 sec 2R • fh^ '■^e giving inevidence'cfoffiStulr"" "''"'"^ '" (b) This notice should soecifv u;;tK ,, i- , . 'Be m,„g Of .he aw„d, aHt t ZT: ^^'Th'"^ '"''" m-s. file it ,,i,hi„ the thirty days '^ '^°8'"=»'' 4S F. C?. S?, s. 10, amended. -ra^:c?::^;^:;Lr£-^^^^ address to wh ch the !1^ ''"' '"''^ "°'''^*^" " wiiiuii tne same was sent anH +k,:» j ^ the same was deposited in the po", !«, " ■"'°" """" served." P"' °™« "r personally Appeal. „ J' «^7. P^""^"" dissatisfied with the award and affected thereby may, within ten clear Zs Jtle o? !!:"^ *^"-f' ^PP-1 therefrl I Judge of the County Court of the Count v in ."-hich the lands, in respect to which the proceed ;"gs are initiated, are situate, and the proceed' "'gs on such appeal shall be as follows : ^Jn; d\7sir ;'r::e;:: or'' zt ™ v"^ ^-'^ """■•" "eer. It does nnf r 'requisition by the engi- ,.„..;.. \!^°^'.''°* ^P^^'fy ^vhen it is to be fi.p/ c„„ ^ ."'^v.... tnat the engineer shall, when such awiui is^^ I f f DITCHES AND WATERCOURSES. I7 file the same. As it could not very well h^ fil.^ u c . made we mav c.f^i . ^ ''^ "'^° before beine •^^ K C. S7, s. 11, amended. Notice of. J^l '^\t *?P""'"'* «'«" serve upon the Clerk be Municipality with whom the .ward is To CTeri 0/ Z)j,,;si„„ Court and Judge. (2) The Clerk of said Municipality shall after ^eS'ed" ftf^ """^/"^ ^PP^'"'''^' ^« oy registered letter or deliver a copy of such notice, or notices of appeal if there be ire tin one appeal, to the Clerk of the Division cl lof the D,v,s,on in which the land of theowne°/ii "io requ,„,t,on as provided in section six" of this Act .s situate, and such Division Court Clerk lil 18 PROVINCE OP ONTARIO. halhrnmediately notify the Judge of said appeal for the hearing thereof, and if he think fit, ord^r or appellants to the said clerk as will be a suffi- cient indemnity against costs of the appeal (c). To Le n ■ ■ ';^'"''''' ""' ""^P'P-^ '"culd be forwarded ceSo?,L^' ■'"'"" """^ '''^"' ''■ ^•■"'diately upon re- ce.pt.of the papers, to notify the County Judge Notice of Bearing. (3). The Judge shall order the time and place for hearing of appeals, and communicate th! same othe Clerk.of theDivision Court ^tl eted^ ''.^ ' «»gi«eer:and all parties inter! ested (i) in the manner herein provided for the service of other^noticesKc-) under this Act ceilt.'rj!^.^'"^^^^"^-"''-'' *e judge „u.t pro. ° '•"" ""'"^'' "' ""= appeal by the Division 1 DITCHES AND WATERCOURSES. I9 Court Clerk. He has his own time in which to order the time and place for hearing of the appeal. Since the above was written the time for the hearing o' the appeal has been fixed by 48 Vict can .^ e " . '• follows • P' ^^' ^^^ 3. which is as 1 Time within which appeal to be heard. 3. It shall be thedutvofthp Tudcp fni^o-.. jj. ?n anneal im.l^r fh ' ^ ° ^^^ ^^^ determine ria appeal under the provisions of the said Art ,.„fk- section II, but his neglect or omission so to do shall not r.n not,ce ,0 the angmeer and Iha parties interested. In the ab sence of any such clause a reasonable time should be «!;«„ W As tothe manner of serving the notices see/o.^.sec. i6, Powers of Judge. (4) The Judge shall hear and determine the appeal or appeals, and set aside, alter or affirm the award, correcting any error therein, and he may examine parties and witnesses on oath and, t he so pleases, inspect the premises, requiring the attendance with him of the engineer and «nv^f fi.' ''"-'"7''' "' ^<5Si8 by the parties or any of them and fix the amount of such costs. 20 PBOVINCE OF ONTARIO. Now in certain cases this may work -i Pr^of f . ownere„.i.,ed „„der .he provisiolrof ^s l". 'Ta,, fo^ inexperienced and icnoran. ■ ,hl ,! "°°-P'°fessional -eh inexperience and ignora ce The '"/•"" ""'"« '° •ho Judge, and the owner who had no h»H " 'I' '"'"^ "^ of i.. and who may be sir c.Ty Ihfon h '^ ° """""« irrr '°''^. ?-^ ■■'~r"an"a:: L':;;:Tht rr..:iT.ardV:ra:idr fjL rtr ^^r engineer, the municipality should pay .he costs fhrr ,' or perhaps a mora satisfactory amendrarwo„,d ^ j •I i ^^(;arcZ as altered and covfirmed to he enforced as original award. (5) The award as so altered or confirmed shnll tJ. "u ^"?'<^'P^"*>-- together with the costs, If any, allowed and by whom to be paid and such award shall be enforced as the award the w'Tr ^"^»^««-e for the completion the date f T-'T^'" ^'^^" ^' "'""P"'^^ '^om the date of such judgment in appeal. See ss. 12, 13, 14. 1 DITCHES AND WATERCOURSES. 21 I Payment of fees. 12. The municipality shall at the expiration of the time for appeal, or after appeal as the case may he, pay to the engineer his fees, and also pay to the person declared to be entitled to the same, any fees or costs awarded or adjudged to him, and shall, unless the same be forthwith re- paid by the person awarded or adjudged to pay the same, place the amount upon the collector's roll as a charge against the lands of the person awarded or adjudged to pay the same, and the same shall thereupon become a charge upon such lands, and shall be collected as ordinary muni- cipal taxes. ^ see K. S. O. Cap. i8o, sec. 91 et seq. Engineer to inspect ivork on request at expir- atton of time limited, and may re-let same. 13. The engineer shall, at the expiration of the time limited by the award for the completion of the work, inspect the said ditch or drain -if required in writing so to do by any of the parties interested, and if he finds the said work or any portion thereof, not completed in accordance With the award, he may let the same in sections as apportioned in the award to the lowest bidder therefor, taking such secnritv for iho ^^^^f.-roi ance thereof within the time" to belimTted^as 22 PROVINCE OP ONTARIO. ho may deem necessary, but no such letting shall take place till after four clear clays' notice m writmg of such intended letting has been posted m at least three conspicuous places in the neighbourhood of the work, and notice thereof 18 sent by registered letter to such parties inter- ested in said award as are non-resident in said municipality, but if the engineer is satisfied of the bonafule8 of the person doing the work, and there IS good reason for the non-completion hereof, he may, in his discretion, extend such time. io.ares.ea „.,H.ao so L Hi„ iTZlt^Z^Z propor.,o„; and in ,ha, case ,he party so doing tts „o"k "™f Z '"■"."■^P-'^'-'in-^. s»ch sn„as ."hree fence viewers of toe municipality nominated for that purpose bv , justice of the peace should award ^ ^ * .he^altd tas a?f:nrw;'?:Th:n"' '"^ "".'' "' ™'°-'"'' providing the wor,! be To. done Sn".t':' "' '°'^"''f"° "' .he award, may do the work w^^ e t 'rTdTrSf tnd may immediately recover its value and the cost fmri, ,f owner by action in any Division Court hZt I ° .>.e locality." A diSe'en. meth J:, ^ccoZuhi"; f'"" '" resuU i3 provided by the above section. Tf' he Zklro: done according to the award, any of the parties interested DITCHES AND WATEBCODHSES. 23 ' ":7c rp"««°' ;''°k"'"' ""''"'• "•'"-' '"«■ son. 17 u. C. C. P. 588. In that case. I. Wilson T nna« says, ..in B„keU, v. E.Min. , EI. & B^et 'nTp e'u remedies the remedy ,s confined to (hose .spectally given • Much that was said by Lord Campbell appL bv analogy w.th great force here. In clearing oar forests, much n on ven^nce was fel, in many places from the land be" g t " and as the tracts granted .0 settlers were small, i, was f^eotltlv ■mpcsstble to drain one lo, witho-.t trespassing u;,„an"hr' or for one man to drain his land without the assistance o^ others equally interested in draining theirs, wh'te "thou cmyated. In vew of th.s, the Legislature in providing for l.e ngbts and i.abilities of adjacent proprietors with reLrd tclences, prov.ded for a simple and cheap system oope1„g u.tches or watercourses by the 8,h Vict cap. .0 ss ^1, 14. Thts Ac, imposed the duty on those who were inte Led '^^^l^ZTTir T'-'"'-^ "^erl^httm mtches across the lands of those who were not interested the rnfe '"'""°" '■' ^"■'^'^'' ">'=P-'- <° PP" to provHed^h'rr '" '""" '°""™'"« '"-' "-P"' " t ptov^ied that ,f any party neglected or refused upon demand made tn w„,,„g, to open, or make and keep open hfs share r panv'l?^ "' '?"-^""^ ^vithin^he'time all wed either party, after completing his own part, might onen .1,^ re^e no7m"",r"""« "' '='"^'"« ^^ bf L , ed o IZeciZT f '™ '"'""«= P" '"d ft™ 'he party neglecting or refusing to open his share i„ ,1, view of it, i, follows that this plaintiff had'hi; rc^m^dy "„ fer If'tVe d'et r' "" T"" ■ "'^' "= -8"' '° have ma ed deft;"rhro';:';Tr.!.!'.:.''^^.-,»-''--j'^h.made relied her .opay.ri;„„d„";LX::iorofthtr/r: 24 PROVINCE OP ONTARIO. Vestry of St. Pancras v. Batterbury, 2 C. B. N. S. 477, Cock- burn C. J at page 486. says : • Where an Act of Parliament creates a duty or obligation, and gives a remedy for a breach of It by a peculiar proceediPj.. a question arises whether the remedy so provided is the only one to be had recourse to or whether it is cumulative.' Here, as in that case, and 'for similar reasons, we think the Legislature intended that the summary proceeding pointed out should be the only one. To hold otherwise would, we think, open an appalling source of l.fgation rumous to all concerned in it. and opposed to the sp.nt and intention of the Legislature, which we think was o place ,n the hands of either party interested the right to specific performance of the relief sought, but not damages by suit for non-performance of it." Inspection of work hy engineer on completion. ^ 14. The engineer shall upon receipt of notice m writing of the final completion of the work mentioned in the preceding sectidn inspect the same withm one week thereafter, and if approved of, and accepted by him, certify in writing the fact to the Clerk of the Municipality, giving a separate certificate for each portion or section of work let and completed (Form F or to the like effect), and stating the name in each certificate of the person who did the work, as well as the amount he is entitled to receive therefor, and also such extra fees as the engineer is entitled to, by reason of such letting and subsequent inspection, and by whom the same arP to b« paid. DITCHES AND WATKRCOD USES. 25 I'iiyweui of amount certified, ami engineer's extra fees. 15. The Council shall at their meeting next after the filing of the certiiicate or certificates mentioned in the preceding section, pay to the engmeer his additional fees therein mentioned, and shall, unless the amount or amounts named m the said certificate or certificates including such additional fees, is forthwith paid by the respective parties declared in said certificate or certificates to be liable to pay the same, cause tne amount or amounts and fees to be added to the collector's roll, together with ten per cent, ^dded thereto, and the same shall thereupon become a charge against the lands of the party or parties so liable, and shall be collected in the same manner as any other municipal taxes, and when collected shall be paid over to the party or parties entitled thereto. l-his section has been repealed by 47 Vict. cap. 43. sec. a. (See ^05/, page 54). and (he following substituted therefor: Payment of amount due to engineer and other persons. io. The Council shall at their meeting next after the filing of the certificate or certificates 26 PliOVINCB or ONTABIO. mentioned in the preceding section, pay to the engineer h.s additional fees therein mentioned, and forthwith thereafter may pay to any person the amount which, according to any such certi- hcate, he is entitled to receive for any work mentioned in said next preceding section («), and thereafter the said Council shall, unless the amount or amounts named in the said certificate or certificates including such additional fees, is forthwith paid by the respective parties declared m said certificate or certificates to be liable to pay the same, cause the amount or amounts and fees to be added to the collector's roll, together with ten per cent, added thereto, and the same shall thereupon become a charge against the lands of the party or parties so liable, and shall be collected in the same manner as any other municipal taxes, and when collected shall be paid over to any person entitled thereto. (<•) The only difference between these two sections is that the substituted one provides for payn ,nl by the munL-oalitv « Service of notices. 16. All notices under the provisions of this Act Shall be served personally, or hv loo„;„„ tu„ same at the place of abode of the owner "or i DITCHES AND WATERCOURSES. 27 occupaiit, with a grown-up person residing thereat (a), and in case of non-residents (b), then upon the agent of the owner, or by regis- tered letter addressed to said owner at the post office nearest to his last known place of abode. (a) The grown-up person must be actually residing with the owner or occupant. Elliot v. Beard, 2 L. J. N. S. 332. {b) The meaning of this word has been declared by 48 Vict cap. 47, sec. 4. (See post, page 56), which enacts as follows : Interpretation ''Non-reeidentr —Service oj Notice . 4. A ''non-resident" within the meaning of section 16 of the said Act, shall include a person who does not reside within the municipality in which the lands which he owns are situate and in respect of which proceedings are taken or to be taken under the provisions of the said Act ; and where the place of abode of a non-resident is not known, notices under the provisions of the said Act requiring to be served on such non- resident may be served in such manner as the Judge of the County Court may direct. Municipal corporations to have same rights as persons. and liXi^IL/'Uil C(ji' exercise all the rights Act, and may be made parties to the said poraiion sLail have, prvileges of this agree- 28 PBOVINCE OF ONTARIO. ment or award, and shall be considered as owner of the highway for the purposes of this Act, and shall m all respects be in the same -position as an individual owner. See note to sec. 2. Persons desiring to use ditch or drain after construction. 18. In case any person during or after the construction of the ditch or drain herein pro- vided for, desires to avail himself of such ditch or drain for the purpose of draining 'other lands than those contemplated by the original pro- ceedings, he may avail himself of the provisions of this Act, as if he were or had been a party to such original proceedings ; but no person shall make use of the ditch or drain constructed under the provisions of this Act, unless under agree- ment or award pursuant to its provisions as to the use of lands of others, as to the enlargement of the original ditch or drain so as to contain additional water therein, and as to the time for the completion of such enlargement. The above section has been amended as under by 48 Vict cap. 47, sec. 5. (See post, page 56.) ■^6 V. G. 27, 8. 18, amended. 6. Section 18 of the said Act is herf-phv amended byadding after theword^eulargement/' DITCHES AND WATEEOOITRSES. 29 in the tenth line thereof, the words "if such be necessary." ^ Drain may he continmd into adjoining 'municipalities, 1». Notwithstanding any of the lands throush which the drain is required, are s'tuate in a mun.c.pahty adjoining the one in which the original proceedings were commenced.theengineer suet ^:i '""/°"" ^"' ^"""""'y '» -°«- such ditch or dram in and through so much of the lands in such adjoining municipality as may be ound necessary, and all proceedings author- ized under the provisions of this Act'are to be had, taken, and carried on in the municipality where commenced ; but in such case the Clerk of said municipality shall forward to the Clerk of such adjoining municipality a certified copy of the award, as made, confirmed, or altered and shall also forward to him a certified copy of every certificate of the engineer which affects or relates to the lands in such adjoining municipal- .ty. and to the owners thereof ; and such Muni- cipal Council shall, unless the amounts Tre forthwith paid bv the T.»rh-„« ^„„i„..„,, , .. ! certificate liable to pay the"same:hrvrZ "Z all proeeedmgs for the collection of the sums so 80 I*ROVINOE OP ONTARIO. certified to be paid, as though all the proceedings had been taken and carried on in such adjoining municipality. Scale of fees, 20. The fees to which the engineer shall be entitled under this Act shall be such as shall be fixed by by-law or resolution of the Council and m case no such fees are fixed by the Council the same shall be his legally authorized fee for simi- lar work, or such less amount as may be agreed upon, and the fees to witnesses and for the ser- vice of papers authorized by the Division Court Clerk, shall be the same as those allowed to witnesses and sirrLiiar services in the Division Couirt. "Engineer," meaning of. 21. The word ''engineer " in this Act shall mean civil engineer, land surveyor, or such person as any municipality by by-law may deem competent to perform the duties required under this Act. E. S. 0. cap. 199, U Vict. cap. 12 and 43 Vict, cap. 30, repealed. 22- Chapter one hundred and ninety-nine of the Revigpd Sfofufoo /-»f r»v,4.«„:_ -i-.^i* . , of the Acts passed in the forty-first year of the DITCHES AND WATEBOOUKSES. 81 reign of Her Majesty, and chapter thirty of the of Z M • '", ''" '"'^•'"^'' ^-^ "f 'he re g„ of Her Majesty are hereby repealed ; but all taken thereunder, may be continued to comple- t.on as though this Act had not been passed FORM A. Township of dral'T*',]*,!' ^"""^ "'"'''^'y ^^^^ ^ ditch or lot No """^' tTh ""* " ''""'""'^ "" concession of the Township of „„^ :. .necessary to eon^ue the same through lot of the township of r,y„ concession /o« d..cri6. them). ^''^'^'' '*"« "«* Therefore we "f^ "gi^e^ 'hat I will make (deepen or ^'•'^.^'^^ and maintain that part of such 21 Z uram commencing at stake number one planted (desonUng the locality of said stake) and^nce 82 PROVINCE OP ONTARIO. to Stake number two, and that said portion of said ditch or drain shall be {describing depth and width) and I, owner of {giving the name of each person, the land owned by him the portion of work assigned, its depth, width, e^c.),and each of us agrees to have our said respective portions completed on or before the ^^yof A.D. 18 Dated, Witness. (Signed by the Parties.) To FOEM B. Township of Sir,— As the owner of lot number ^^ ^^^ concession of the Township °^ I require to construct a ditch or drain through said lot, and find it necessary to continue the same through your land, being lot number . in the concession of the Township of under the Ditches and Watercourses Act, 1883, and request that jou will attend at on the ^^y of 18 at the hour noon, with , » _ 1 U GiOCK, ill Liie DITCHES AND WATERCOUriSEfi. 33 respective portion of such ditch or drain to be madM^^^^^ Dated this day, jg Yours, &t. FOEM C. To of Clerk of the municipality of the the^'"''"'^' *^^ o^ner of lot number ,-„ of® concession of the Township concession of the Township of o^„,, .^ -Lot number :„ the ''^ Township of concession of the owned by theditrh^A ■ ^^'"'"^'"""='' l«t through which m^tch or draxn must be em'inued, and the name of the omierofeach varcd)^ an-l !,..:.,„ ,..-,, by each, I (or we) require the engineer appointed m 84 PROVINCE OF ONTARIO. by the municipality for the purpose, to attend at the 1( ..ality of said proposed ditch or drain on *^^ day of 18 at the hour of o'clock in the noon, examine the premises, hear the parties and their witnesses, and make his award under the provisions of the Ditches and Watercourses Act, 1883. Dated (Signed by Party or Parties.) \ FORM D. To Take notice that the engineer appointed by the municipality for the purpose will attend at lot number in the concession of on the day of A.D. 18 at the hour of o'clock in the noon, to examine the site of the proposed ditch or drain and make his award therein ; and you as the owner of (describe the lot) which may be affected thereby, are requested to attend (with any witnesses you may desire to have heard) at said time and place. Dated Yours, &c. DITCHES AND WATEIICOUBSES. 86 POEM E. in- ' • • ,-, "^® engineer appointed by the Mumcpahty of tlie Township of Z Z County of under the provisil of the Ditehea and Watercourses Act, 1883 hav ni by the requisition of „ .pb- 7 ^ of lot number o^'nei^ (or owners) concession of the Township of ^ filed with th'ltte r"^b^"'' '"""'^'"^■"^ «S that he (or they) required a ditch or drain on «a.d lot and that it would be necessary to con mue the d.tch or drain through the LlowTn. lands on lot number Jq ti,e ^ concession of the Township of owned by r,„,n»^ • °;' ^^ "**'"'' ''^ '''^ *™e and place loc" tv"n/ ri?;. ''"' ""^'"^ ^^amined'the locahty of said ditch or drain, and heard the rrra: fiiit-'""-- ^^ -^^' ^-^ -^ That lot number ;„ a^ concession of the Township of would be benefited by, and requires a ditch or diain, It already made), to enable the nrnn», cuiuvation or use of the said land, and Y find that said ditch or drain will requi e to be ex 86 PROVINCE OF ONTARIO. being tended across the land of lot number ]„ ^^e concession of and across the land of being lot number "^ *^^® concession of the Township of (and 80 on, giving the name of each owner and lot to termination of said ditch or drain) and I award the making of said ditch or drain [or the deepening or widening as the case may be) as follows :- shall commence at ^ stake number one planted {describe with reason- able certainty where planted), and shall open up and maintain a ditch or drain {describe ividth and depth), to stake number two planted {describe wehre planted, distance and direction from first stake), and said portion shall be made and com- pleted within {name time loithin lohich to be com- Pleted). That shall commence at stake number two, above described, and shall open up ana maintain a ditch or drain {describe width and depth) to stake number three planted {describe where planted, distance and direction from stake number two), and said portion shall be made and com23leted within {jiame time, etc.) That shall, etc., {and so on to the termination of said ditch or drain). That my costs attendant upon the examination and making of this award are « we borne and paid as follows : (give the nn/1 cfl^oll U^ U — DITCHES AND WATERCOURSES. 37 t'lteponion to he home bv each). Da'ed this day of a.D. is Witness ) / (Signature of Engineer.) To FOPtM F. Clerk of the Township of I hereby certify that , do was by .e subsequently .eMoirsfir''" for the sum of a„<, j^^ ^^.^ amount. " """'' '° "^ P''''^ '"« 'aid I further certify that my additional fees are and that said amount and said fees are . , "'"^ ''■a* ^ai'J amount and aai.1 fees are chargeable on (describe propel Tb, ckarMrcHtk) ,nA shall unless LthwHhlfd be added to the Collector's EoU Um . " Jj) j provided .n the fifteenth section of the let i pectmg^Ditches and Watercourses, 1883 18 day of A.D. Engineer for 38 PROVINCE OF ONTAllIO. CHAPTER igg. An Act respecting Ditching Wat er- courses. Short title, s. i. Application of Act. s. 2. Duty of adjoining owners as to ditches, s. 3. Proceedings in case of dis- pute, s. 4. Notice to owner, s. 4 (i). Notice to Fence-viewers s 4(2). Occupant to notify owner, s.5. Duty of Fence-viewers, s. 6 Award :-— What to contain, s. 7. To be filed with Clerk, s, 0, To be a lien on land, s. 9. How enforced, s. 10. Fees payable on. s. 11. Appeals from, s. 12. Act applies to Municipal Cor- porations, s. 13. Subsequent parties, s. 14 Agreement may be regis- tered, s. 15. Forms, s. 16. gEE MAJESTY, by and with the advice and -L consent of the Legislative Assembly of the Province of Ontario, enacts as follows :- liy Short Title. 1. This Act may be cited as Watercourses Act." The Ditches and rk, )r- is- DITCHES AND WATKRCOUR8E8. Certain Acts not affected by this Act. 89 I>raiiiaf?e as fhiu a ? ^"^^^ respecting ditch o'iiir:\;''r^'^^ •'^ ■"'"'-« ' ditch or drain 'al/eaS madr'"' " '""^"'"^ ' course, or by ^akh / 1^ '" "* "'*'"'•'" water- ditch or drain ilLf''"'"^ "' ^'""^"'"S * BurpluB water frol Ja^pfoTr "'• "'"^ °^ order to enable the orers o n ""'^ '""''' '" to cultivate the san.e s "Jveror """"' open and make, deep n or wTde„ a Z7"':':^ proportion of such dit.h\ T ' ' ^""^ '^*''' their several inter sitth ""' """"''""g to --; and ^uchTiS^^^rnTsSrV'* and maintained so onened / ! ^^ ^^P* b. the said owne^rSira^^^^^^^^^^^ cessors in such ownershin in u ^^^'^ ^^c- aB they have beeniropid ", '"'^ r^ortions ed. ur,i.c„ :^ ^^^P^'^^^' deepened or wid^n. -, ..xv=o iii coiibequence of alfpr^^i .• stances the Fence-viewers herei'X rCd 40 PROVINCE OF ONTAKIO. otherwise direct, which they are hereby em- powered to do upon application of any party interested, in the same form and manner as is hereinafter prescribed in respect of the original opening, deepening or widening ; and in case the Pence-viewers find no reason for such applica- tion, all costs caused thereby shall be borne by the applicant. 38 V. c. 26, s. 3. Disputes to be referred to Fence-viewers. 4. In case of dispute between owners respect- ing such proportion, the following proceedings shall be adopted : — Notice to owner or occupier of adjoining land. 1. Either owner may notify (Form 1) the other owner or the occupant of the land of the owner so to be notified, that he will, not less than one week from the service of such notice, cause three Fence-viewers of the locality to arbitrate in the premises. And to Fence-viewers. 2. Such owner so notifying shall also notify (Form 2) the Fence-viewers not less than one week before their services are required. DITCHES AND WATKRCOUltSlCS. 41 Contents of notice. 3. The notices in both cases shall be in writ- ing, signed by the person notifying, and shall specify the time and place of meeting for the arbitration, and may be served by leavinc. the same at the phice of abode of such own^r or occupant, with some grown-up person residing thereat, or in case of a non-resident, by leaving . such notice with any agent of such owner. When Judge to appoint Fence-vieicers. 4. The owner notified may, within the week, object to any or all of the Fence-viewers notified ; and in case of disagreement the Judge herein- after mentioned shall name the Fence-viewers who are to arbitrate. 38 V. c. 26, s. 4. Occupants to notify owners. 5. An occupant not the owner of land notified m the manner above mentioned, shall immedi- ately notify the owner ; and if he neglects so to do, shall be liable for all damage caused to the owner by such neglect. 38 V. c. 26, s. 12, Duties of Fence -vieicers. 6. The Fence-viewers shall examine -b- -'=". mises, and if required by either party, thly shaH hear evidence, and are authorized to examine 42 PROVINCE OF ONTARIO. the parties and their witnesses on oath, and any one of them may administer an oath or affirma- tion as in Courts of Law. 38 V. c. 26, s. 5. Aivards—Conlents of. 7. The Fence-viewers shall make an award (Form 3) in writing, signed by any two of them, respecting the matters so in dispute, which award shall specify the locaUty, quality, and description and cost of the^ ditch or drain it orders to be made, and the time within which the work shall be done ; and shall state by which of the said parties the costs of the proceedings shall be paid, or whether either party shall pay some propor- tion of such costs. What to be considered. 2. In making such award the Fence-viewers shall regard the nature of the ditches or drains in use in the locality, and generally the suitable- ness of the ditch or drain ordered to the wants of the parties; and the Fence-viewers may, if they think necessary, employ a Provincial Land Surveyor for the purpose of taking levels, or of ma.kinor n. -nlon frw +l.o -r^nv^l^c, i-^ e^u .• i • o ~ i • '^-"- ""v/ ^tii viun LO- iUiiwVV iii LUaiKiDg the ditch or drain, or for other purposes. i DITCHES AND WATERCOURSKS. 43 Estimates exceeded—Svpplementary award, 3. If the expense of the ditch or drain exceeds the expense as estimated by the Fence-viewers the same Fence-viewers may be again notified in the same manner herein provided, and shall attend, and, if they see fit, make a supplement- ary award respecting such expense which award shall have the same effect, and may be dealt with in a 1 respects as if it were part of the first award, oo V. c. 26, s. 6. Fence-viewers may order opening of ditch across another , -on's land. 4. If it appears to the Fence-viewers that the owner or occupier of any tract of land is not sufficiently interested in the opening up the ditch or water-course to make him liable to perform any part thereof, and at the same time that it is necessary for the other party that such ditch Should be continued across such tract, they may award the same to be done at the expense of such other party; and after such award, the last mentioned partv mav nn^n iha ^i+^i, a... course across the tract, at his own expense, with- out being a trespasser. 40 V. c. 8, s. 59. 44 PROVINCE OF ONTAIiro. Deposit of award to he evidence—Notification of award. 8. The award and any plan made as above provided for, shall be deposited in the office of the Clerk of the Municipality in w'.ich the lands are situate, and the award and plan shall be official documents, and may be given in evidence m any legal proceedings by certified copies, as are other official documents, and notice of their being made shall also be given to all parties mterested. 38 V. c. 26, s. 7. Award to he a lien on the land. »- The award shall constitute a lien and ■ charge upon the lands respecting which it is made when it is registered in the Registry Office of the County or other Registration Division in which the lands are. Registration of award— Rev. Stat. c. 111. 2. Such registration may be in duplicate or by copy, proved by affidavit of a witness to the original, or otherwise, as in the case of any instrument which is within the meaning of " The Registry Act." 38 V. c. 26, s. 9. DITCHES AND WATERCOUUSES. 45 of re is e e s r Enforcing award. lO. The award may be enforced as follows — The person desiring to enforce it, provided ihe work IS not done within the time specified by the award, may do the work which the award directs, and may immediately recover its value and the costs from the owner by action in any Division Court havmg jurisdiction in the localitv : but the Judge of , Di,i3ion Court may, on applica^ tion of either party, extend the time for miking Fencx-viewers' and witnesses' fees. 11. The Fence-viewers shall be entitled to this Act Prov.nc.al Land Surveyors and wit- nesses shall be entitled to the same compenTa- i^ourt. 68 V. c. 26, s. 13. Appeal. la. Any person dissatisfied with the award made may appeal therefrom to the Judge of the County Court of the County in which tL J.Z 46 riiOVINCE OF ONTARIO. Notice of. 1. The appellant shall serve upon the Fence- viewers and all parties interested, a notice in week from the time he has been notified of the award, which notice shall be served as other notices mentioned in this Act. To Clerk and Judge. 2. The appellant shall also deliver a copy of such notice to the Clerk of the Division Court of thereof hes and the Clerk shall immediately notify the Judge of such appeal, whereupon the Judge shall appoint a time for the hearing there- of, and, If he thinks fit, order such sum of money to be paid by the appellant to the said Clerk as _will be a sufficient indemnity against costs of the appeal. Notice of hearing. 3. The Judge shall order the time and place for the hearing of the appeal, and communicate the same to the Clerk, who shall notify the Fence- viewers and all parties interested, in the manner hereinbefore provided for the service of otJ.«. notices under this Act. aif DITCHES AND WATEUGOURSES. 47 e- n le le r Poivers of Judge. 4. The Judge shall hear and determine th« 2^::lcT "^'^' ^'"''^ ^' ^^- '^^^^^^^^ correcting any error therein, and he may ex amine parties and witnesses on oath, anTif he so pleases, inspect the premises, and h may order payment of costs by either party and fi^ the amount of sach costs. '^J, and Hx No appeal. ast Strt"' ''°° '^" ^' ""«' ■ "-"J th« award, as so altered or confirmed, shall be dealt with in all respects as it would have been if it hid nit been appealed from. 88 V. e. 26, s. 14 Liabilities of Municipal Corporation,. bp h!" t Tu ^f^ *^»°i<=''Pal Corporation would be benefited by the construction o such ditch or dram such Corporation shall be in the same Is V c" 26 '"/n'"''"^' "^-^ under thisTt 88 V. c. 26, s. 10. 40 V. c. 8, s. 60. Persons desiring to me ditches or drains after construction. 14. In case any person during or aftpr ihc construction of the ditches or drains heSpt 48 i §1 PBOVIMCE OF ONTARIO. vided for, desires to avail himself of such ditches or drams for the purpose of draining other lands than those contemplated by the original proceed- ings, he may avail himself of the provisions of this Act. as If he wore or had been a party to such origmal proceedings; but no person shall make use of the ditches or drains constructed under the provisions of this Act unless under agreement or award pursuant to its provisions as to use of the land of others, as to enlarge- ment of the origjnal ditch or drain, so as to contain additional water therein, and as to the time for the completion of such enlargement. oS V. c. 26, 8. 11. Agreements as to ditches may be registered and enforced, 15. Any agreement in writing (Form 4) be tween owners respecting such ditch, may be filed or registered, and enforced as if it was an award of the Fence-viewers. 38 V. c. 26, s. 15. Forms. 1«. The forms in the Schedule hereto are to guide the parties, being varied according to 'vtiiiuuctii^^CB. ^^ * . c. iio, «. 10. fi i il i DITCHES AND WATRRCOUnSES. 49 SCHEDULE OF FOBMS. FORM 1. (Section 4.) NOTICE TO OPPOSITE PARTY. Take notice, that Mr. , Mr. and Mr. three fence-viewers of this locahty, will attend on the day of A.D. 18 at the hour of , to view our properties,' being Lots (or parts of Lots) One and Two in the Concession of the Township of in the County of , and arbitrate respect- ing the ditch in dispute upon our said Lots. Dated this day of , A.D. 18 To C. D. ^^^'' "*■ ^°* !• Owner of Lot 2, (or as the case may be). 60 PROVINCE OP ONTARIO. FOEM 2. {Section 4.) NOTICE TO FENCE-VIEWERS. Take notice, that I eciuife you to attend at on the day of , a.D. ^» ,at o'clock to view my property and that of Mr. being Lots (or parts of Lots) Nqs. One and Two in the Concession of the Township of in the County of , and arbitrate on the ditch required on said Lots. Bated this <^ay of , A.D. 18 A. B., Owner of Lot 1. ■ FOKM 3. (Section 7.) AWARD. We, the Fence-viewers of (n having been nominated to view and^arbitTate at D. ay or le DITCIIJ^S AND WATEHCOURSES. 51 between {name and descnption of owner who noti- Jied) B,n^{name and descnption of otvner notified) upon a ditch required on the property of iLJe of owner notrfied), which ditch is to be made and maintained on said property ; and having ex- ammed the premises and duly acted according to TJce Act respecting Ditching Watercourses, do award as follows : A ditch shall be made and maintained by the said commencing at {state point of commencement and then aivl course and point of ending). The ditch shall be of the fo lowing description {state kind of ditch, depth, width, cite; if a plan has been made by Pro- v^nc^al Land Surveyor, describe course, kind of ditch, dc, by reference to plan). The work shall be^commenced within days, and completed within days from this date ; and the costs shall be paid {state by tvhom to be paid, and if by both, tn tvhat proportion). Bated this Wit ness day of , A.D. 18 . {Signatures of Fence- viewers). 62 PROVINCE OP ONTAniO. FOBM 4. {Section 15.) AGREEMENT. We and owners respectively Of Lots (or parts of Lots) Om and Two in tbe ConcessioA of t!ie Township of in the County of , do agree that a ditch shall bo made and maintained by us as follows {follow same form aa in award). Dated this Witness : day of , A.D. 18 {Signatures of parties). ^jii DITCHES AND WATKIICOURSKH. 58 ely the in all ow CHAPTER 43. An Act to amend the Act respecting Ditches and Watercourses. ^' [Auented to 35th March, 1884.] JTER MAJESTY, by and witl, the advi-e „„„ J-L consent of the Legislative Assembly 0: the Province of Ontario, enacts as follows :- 46 V. c. ar, 8. 3, amended. aI' ^l7^r- "u"^ f "^ ^'"'^'' "«'' Watereouru> Act 1883, IS hereby amended by adding the following sub-section thereto : Proper outlet must be reached. (2) Every such ditch, or drain, shall be con- tinued to a proper outlet, so that no lands, unless with the consent of the owner thereof, will be overflowed or flooded, through, or by the con- Btruction of any such ditch or drain, and it shall be lawful to construct such ditch, or dra.-^ oarougn one or any number of lots until the" proper outlet is reached. 54 PROVINCE OF ONTARIO. Sec. 15, repealed. 2. Section 15 of the said Act is lierebv r^ pealed and the following substituted iCSlZ Payment of amount due to engineer and other persons. mentioned in the preceding section, pay to the engineer his addiiional fees therein rnLZ a and forthwith thereafter ma/Jly o TnTS t?heTe:t^!;' r "'''"^ *° -^ -^ ™ cate he is entitled tc receive for any work nien- .oned m said next preceding section, and tW after the said council shall, unless th amounfor amounts named in the said certificate oTcerM cates inc uding such additional fees, is forthw fh paid by the respective parties declared nlaS certificate or certificates to be liable to ^ay the same cause the amount or amounts and fees to per cnt. added thereto, and the same shall hereupon become a charge against the lands i lectedt'r ^'''■"" ^^ '»•"«• -i «"«» be <^- lected m the same manner as any other munici- pal taxes, and when collected shall be paTd over -— ^. „-....._.^ ciiiiuuu inereto. \ DITCHES AND WATEBCOniiSES. 56 CHAPTER 47. An Act to amend the Ditches and Water- courses Act, 1883. [Assented to 30th March, 1885.] JJER MAJESTY, by and with the advice and ovmce Of Ontario, enacts as follows :— ^6 V. c. 37, s. 3, amended. Do.f nffi ^"^""^ ^^« deposited in the post office or personally served." ^^ V. c. 2Z, s. 11, amended. 56 PROVINCE OP ONTARIO. Tirm ^mn .fe/. ,^^,,, ,^ ,^ ^^^^^^ \ the said AcjwiS: r.r:r^'™"^''^ notice of the annpnl « , *'''*'' '•««eiving render in.lld Jh° '"°" '" '" ^'^ ^^all no aPPeauj;iX'r-J;-ni„,onhe /»««rpm««,-„„ .. non-rendenl "Service of ,■ 4. A "non-resident" within tl? "^ ''"'• section 16 of the said Act sZ^ ^ T""'"^ "^ who does not residp^fv f^ '""'°'*'' * ?«"»« which the lands Ih eh he' own' """"''"""^ ^ in respect of which pioceedr/'" "'r'^' '""^ be taken under the ^T- ^^ ^e talcon or to and where the p ace 0^27' f '"" ""'' ^"'^ " not known, not unde'tfa? * ""■"*"' said Act requiring to be servpf"*"' "' "'^ resident may be served nUhn,? ""' "°"- Judge of the County Cw" Zy TC '' '"^ f ^- '■ ^^, s. J8, amended. h/addt:xxtr.tsr-^--nded :-/ine thereof, the ld:»^^~;tf: heard. <3ge to hear rovisions of 'r receiving section 11, 5 shall not ningof the I ND EX. ^ of notice. leaning of 3 a person Jipalitj in "ate, and '^en or to said Act ; -resident ns of the ich non- r as the mended " in the 3 neces- AppfiAL : When may be made . . To whom made Notice to be served on Clerk Judge to appoint time . . \' Security for costs of . . Notice of hearing of .. *' When to be heard Powers of Judge Award : When to be mnde What must specify With whom to be filed Appeal from .. TobecertifiedbyDivi^i'onCourtCleVkasaherld Enforcement of .. _ Clerk of Municipality : Must notify engineer . . Award to be filed with M * give notice of award . . \\ ^^ inner of giving notice Must keep a book for certain 'purposes Appeal, notice of. must be served on - ,. «v...xj x.zvi5iOu Court «.ierk of appeal Duties of. where drain to be continued . . PAGE l6. 17 16 17 18 t8 19 19 19 II ", 12, 13 15 18, 19, 20 . «S:c. 20 20 10 • . rs, 16 16 16 1 . T"? 17 20 58 INDEX. Clerk of Division Court : Must notify Judge of appeal Must notify parties of time appoin'ted for* hearing appeal .. .. Must certify award as altered. &c * Costs : Security for. of appeal may be ordered Judge to fix amount of Ditch : Purpose of deepening or widening. . Persons desiring to use after construction ' Drain : Purpose of deepening or widening . . Persons desiring to u^e after construction ' May be continued into adjoining municipalities , Drainage : Natural remedy where no . . Easement : ^ Remedy where no Engineer: Council to appoint Must be appointed by By-law Meaning of word " Engineer " Duties of . . *• •• •• •. ., Must examine premises May hear evidence on oath Must do so if requested When must make award •• •« ,, May adjourn examination For what period may adjourn Fees of ; ' ■; May order opening of ditch on land, non-interested ^ .P«''^°" To insnpct work May re-let PAGE i8 19 20 18 19. 20 5 28 5 28 29 6 6 6, 30 10, II 10 10 10 10 II 13 13.30 M 71 21 P INDEX. go Engineers— Co«/mM«