Owner of Vacant Land Awarded Punitive Damages for Trespass
In the recent decision of Stewart v. Phillips, 2018 BCSC 828, the plaintiff sought damages in nuisance, trespass and assault. The plaintiff also sought an injunction restraining the defendants from trespassing on her property. The plaintiff resided at 24810 Chief Lake Road, Prince George, British Columbia. The plaintiff was the registered owner of two pieces of property, the residential property (the “Stewart Property”) where her house was located and a vacant property (the “Vacant Property”). The defendants resided at 24680 Chief Lake Road, Prince George, British Columbia (the “Phillips Property”) which is situated between the Stewart Property and the Vacant Property.
The plaintiff claimed that the defendants erected signs on the Vacant Property without permission, placed flagging on trees without permission, cut down trees on the Vacant property without permission, used the driveway on the Vacant Property without permission, and damaged the gate on the Vacant Property.
The plaintiff also claimed that on March 21, 2016 as she was driving on Chief Lake Road she saw the defendant Darryl Phillips coming from the opposite direction. As she drove by his driveway he spun his tires throwing rocks at her vehicle. The plaintiff argued that the defendant Darryl Phillips’ actions on March 21, 2016 in spinning his vehicle tires, constituted an assault. The plaintiff also argued that punitive or exemplary damages for trespass should be awarded in this case because the defendants exhibited an inconsiderate disregard and insensitivity to the plaintiff’s rights in regard to the Properties.
A Water Easement was established in 1993 granting the owners of the Vacant Property the right to use the Phillips Property for the establishment of a water line to the well. The plaintiff testified there has not been a water line to the Vacant Property in years. The defendant, Mr. Phillips, testified that the person who sold them their property told him that there was a water easement which was in exchange for use of the driveway on the Vacant Property. The defendants argued that the plaintiff had failed to prove that they caused any damage to the Properties particularly in the form of cutting down trees. The defendants asked that they be granted an injunction restraining the plaintiff from entering their property.
The Court found that the plaintiff had established that the defendants or their agent Paul Phillips did the following: (1) Erected signs on the Vacant Property without her permission; (2) Placed flagging on trees on the Stewart Property without her permission; (3) Cut down two large birch trees and eight smaller aspen trees on the Stewart Property without her permission; (4) Used the driveway on the Vacant Property over a period of approximately three years without her permission; and (5) Damaged the gate on the Vacant Property. The evidence did not establish on a balance of probabilities that Darryl Phillips intentionally spun his tires for the purpose of throwing rocks in the direction of the plaintiff.
The Court held that the defendants or their agent Paul Phillips had no permission to enter onto the Properties and erect signs, place flagging on trees, cut down trees, use the driveway or damage the gate and that all of these acts constitute trespass. The Court awarded the plaintiff $300 for repairs to the gate. The Court accepted the plaintiff’s evidence that the cost to replace the trees would be $1,532 ($250 each for two birch trees and $129 each for eight aspen trees) and it was reasonable that the plaintiff would replace the trees. The Court found that given the unreasonable position taken by the defendants after the plaintiff told them that they were trespassing on the Properties, it was reasonable for the plaintiff to obtain a survey for the purposes of dealing with the defendants and awarded the plaintiff $1,650.09 in damages for the survey costs. Therefore the plaintiff was awarded $3,482.90 for general damages for the trespass committed by the defendants or their agent Paul Phillips.
The Court held that the defendants’ actions to continually enter onto the Properties was deliberate, high-handed and egregious. The defendants’ actions in cutting down the trees on the Stewart Property was at best grossly negligent. The defendants disregarded the plaintiff’s rights to the Properties. The Court found that the plaintiff was entitled to an award for exemplary or punitive damages in the amount of $7,500. The Court held that the plaintiff had not proved on a balance of probabilities that the defendants’ actions interfered with her use or enjoyment of the property in a substantial and unreasonable way and dismissed the plaintiff’s claim in nuisance.
The Court found that the plaintiff had not proven that the actions of the defendant Darryl Phillips in spinning his car tires was intentional and designed to spray rocks on the plaintiff’s car and therefore dismissed the plaintiff’s claim for assault. The Court was satisfied based on a review of all the evidence that a permanent injunction was appropriate to preserve the legal rights of the plaintiff to the Properties, prevent further trespass by the defendants and to maintain peace between the plaintiff and defendants. The Court held that the defendants were permanently restrained by themselves or by their agents, servants, or otherwise, from trespassing on the plaintiff’s property.
The defendants claim for an injunction against the plaintiff was dismissed as the defendants had not filed a counterclaim seeking an injunction nor was there any evidence that would suggest that it would be appropriate to grant an injunction against the plaintiff. The plaintiff was substantially successful in this action and was entitled her costs.
At Hauer and Company we can assist if you have been the victim of a trespass