Battle over fenced-off pond ends with splash
• It took four 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 on Calgary’s western border in 2000 with her late husband, where they envisioned many years of winter skating and canoe floats in 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 f aces the Erik residence,” wrote Alberta Justice Barbara Romaine in her Jan. 23, 2017 ruling.
“Before the f ence 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.
In her ruling, Romaine suggested both sides of the pond skirmish “have been guilty of nasty conduct.”
Erik had attempted 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, not federal jurisdiction. That landed both parties before the courts, before Romaine ultimately ruled the water is not private property and the defendants had no right to impede access.
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 removed. “There can be no trespass of property that one does not own,” Romaine repeated from her first decision.