POND MUST BE SHARED
After almost five years of battling over the usage of a Bearspaw pond, a judge has ruled that neighbours must share access to the water and all fencing must be removed.
It took five years, nearly $200,000 in legal fees and incalculable stress, but when Mary Lou Erik looks out from her Bearspaw home onto her adjoining pond today, it’s not through the links of a five-foot tall, slapdash fence erected by her neighbour.
Erik purchased a two-acre lot at the edge of the pond, just west of 12 Mile Coulee Road on Calgary’s western border, in 2000 with her late husband, where they envisioned many years of winter ice skating and twilight canoe floats in the summer.
That dream came crashing down in 2013, when their neighbours of eight years, Debbie McDonald and Doug Sparks, posted a “No Trespassing” sign on a floating platform just outside Erik’s home, later erecting a fence across the pond just metres away from their home.
According to a judge’s ruling from last January, the fence essentially kept the Eriks from enjoying the bulk of the pond they had been using for more than a decade.
“The fence effectively cuts off the occupants … from the largest portion of the reservoir. The rather unattractive fence extends about five feet above the waterline, and to a certain extent below water, and faces the Erik residence,” wrote Alberta Court of Queen’s Bench Justice Barbara Romaine in her Jan. 23, 2017 ruling.
“Before the fence was erected, the reservoir was used by the Eriks and their child and guests for canoeing and kayaking in the summer and skating and hockey in the winter. The fence now interferes with these innocent enjoyments.”
The dispute over water access grew more bitter, with both sides alleging harassment and multiple calls to RCMP, who “came on numerous occasions for a period of time to investigate,” Romaine wrote.
Erik said the relationship between the once cordial neighbours deteriorated badly after the water was suddenly claimed by McDonald and Sparks as private property, as most of it sat within their property lines.
“It’s been a hell of a five years,” said the soon-to-be 66-year-old retiree. “It’s been so much stress and time. I just want it to be over.”
Erik said their neighbours continued to reinforce the fence over the years despite ongoing legal challenges, at one point placing cameras aimed at their home as well as bright lights aimed at Erik’s bedroom. By the time it landed before the courts, the fence was festooned with fluorescent ribbons and reflectors along with carpet tacks.
In her ruling, Romaine suggested both sides of the pond skirmish “have been guilty of nasty conduct,” over the last few years.
Calls to McDonald and Sparks were not returned Monday.
Erik had attempted to resolve the dispute by getting a ruling from Transport Canada allowing her access in 2014, but it came after the federal government gutted the Navigable Waters Protection Act, leaving most waterways subject to common law as opposed to federal jurisdiction.
That landed both parties before the courts, before Romaine ultimately ruled that the water is not private property and the defendants had no right to impede anyone’s access.
“I find that both the applicants and the defendants have the right to access the reservoir for recreational purposes, despite its manmade nature,” she wrote.
“The erection of the fence interferes with that right, and it must be removed. As long as the applicants do not cross the shore of Ms. McDonald’s lands, they are not, and have not been, trespassers.”
Last May, after Erik had asked the courts to find McDonald in contempt of court for not removing the fence as ordered, it was taken down soon after, though parts of it were left to float in the water. Meanwhile, during the litigation, McDonald had erected two more fences across the reservoir that weren’t included in the original order.
Last month, Romaine ordered the new fencing be removed as well, suggesting it falls under the same legal ground as her previous ruling.
“There can be no trespass of property that one does not own,” Romaine repeated from her first decision on water rights.
For Erik, she’s eager for the ordeal to be over but thrilled to once again have access to her beloved pond. She also knows her case will likely set the legal bar for future disputes over water ownership.
“What’s come out of this now is because we’ve done this, this is now case law,” she said. “It’s a precedent that’s been set on water issues like this whenever they come up in court. Unfortunately, we had to be the first ones to have a dispute like this.”
Erik said McDonald and Sparks are currently appealing the judge’s ruling.