






Citation:



Wagner
        et al v. Town of Oliver



Date:
20030110











2003 BCCA 38



Docket:



CA029001





Registry:  Vancouver





COURT OF APPEAL
  FOR BRITISH COLUMBIA





ORAL REASONS FOR JUDGMENT





Before:







The Honourable Madam Justice Huddart





January 10, 2003









The Honourable Mr. Justice Mackenzie













The Honourable Mr. Justice Thackray















Vancouver,
        B.C.













BETWEEN:





DAVID WAGNER and KAREN WAGNER

doing business as CARRIAGE HOUSE WINES





APPELLANTS

(PLAINTIFFS)





AND:





TOWN OF OLIVER





RESPONDENT

(DEFENDANT)






















M.F. Welsh



appearing
  for the Appellant





J.M. Poole



appearing
  for the Respondent







[1]

MACKENZIE, J.A.
: This
  is an appeal from a judge in chambers on a special case under Rule 33 answering
  the question:

Does irrigation purpose as defined in s. 1 of
  the
Water Act
, R.S.B.C 1996, c. 483, as amended, include the use
  of water for the purposes of frost protection?





The answer
  of the learned chambers judge was no.

[2]

The special case arises in an action commenced
  by the appellants for damages for frost damage to their grapevines after the
  employees of the respondent allegedly turned off the pump supplying water from
  its irrigation system to overhead sprinklers for frost protection sometime
  during the night of 8-9 May 1999.

[3]

The agreed facts on the special case are as
  follows:

1.   The
  Plaintiffs, David Wagner and Karen Wagner, are partners in a vineyard and
  winery doing business as Carriage House Wines located at 33010  71
st
Street in Oliver, B.C.



2.   The
  Defendant, Town of Oliver, is a
  Municipality under the
Local Government Act
, R.S.B.C. 1996, c. 323, as
  amended.



3.   By
  Letters Patent dated July 10, 1964, the Province of British Columbia incorporated
  a tract of land into an improvement district pursuant to section 53 of the
Water Act
.  Paragraph
  1 of the Letters Patent included the Town of Oliver within the improvement
  district.



4.   Paragraph
  2 of the Letters Patent provided that the improvement district was to be known
  as the Southern Okanagan Land Irrigation District (SOLID).



5.   Paragraph
  3 of the Letters Patent defined the objects of SOLID as follows:



The objects of the
  improvement district shall be the storage, diversion, pumping, conveyance,
  measurement, and distribution of water for irrigation purpose and the acquisition,
  maintenance, and operation of works for such purpose, and all matters
  incidental thereto.



6.   Paragraph
  9 of the Letters Patent provides as follows:



All words and phrases
  given special meaning in section 2 of the 
Water Act
 shall, where used
  herein, be ascribed the meaning given them in the said section, unless the
  context otherwise requires.



7.   The
  Water Act defines irrigation purpose as follows:



Irrigation purpose
  means the beneficial use of water on cultivated land and hay meadows to nourish
  crops.



8.   By
  Order in Council No. 1132 dated May 15, 1980, the Letters Patent were amended
  by striking out section 3 in its entirety and substituting the following in
  its place.



The objects of the
  improvement district shall be the storage, diversion, pumping, conveyance,
  measurement, and distribution of water for irrigation purposes and the
  acquisition, maintenance and operation of works for such purpose and the
  provision of dyking and drainage of land and the construction, acquisition,
  maintenance and operation of works for these purposes and all things incidental
  thereto.



9.   By
  Order in Council No. 1870 dated December 15, 1989, the Province of British
  Columbia dissolved SOLID effective from December 31, 1989 and transferred all
  the assets, rights, claims, obligations and liabilities of SOLID to the Town
  of Osoyoos and the Village of Oliver.



10.  The
  supply of water by the Defendant for irrigation purposes involves the supply
  of water to agricultural producers for a fee on a per acre basis.



11.  The
  Defendant has never represented to recipients of water supplied by the
  Defendant for irrigation purposes that irrigation purposes includes the use
  of water for the purposes of frost protection.



12.  The
  Defendant supplies water to the Plaintiffs for irrigation purposes.



13.  The
  Plaintiffs, irrigate their vineyard using an overhead irrigation system, with
  sprinklers located at a distance of 40 feet apart from each other.



14.  Each
  sprinkler rotates 360 degrees and distributes water for an approximately 40
  root radius.



15.  The
  Plaintiffs use the water supplied by the Defendant for irrigation purposes
  to:



(a)  Provide water
    to their grape plants to replenish water in the soil necessary for plant
    survival
  and growth and to grow and ripen a crop; and



(b)  Provide water
  for frost protection of the plants in the event of a frost during the growing
  season.



[4]

The chambers judge relied on a passage from
Cameron
  County Water Improvement District No. 1 v. Fly
, 35 S.W.  2d 504 (Texas
  Ct. of Civ. App., 1931) as follows:

that the primary, normal, natural purpose of
  irrigation projects is to furnish water in arid and semi-arid sections with
  which to give a sustenance to crops against the effects of a draught  in
  short, to take the place, as nearly as possible, of timely and reasonable
  rains.






The chambers judge added:

[21]
      Using the available water to prevent frost on grapes is not taking the
      place of a timely and seasonable rain.  To use
the water for frost protection is to put in jeopardy the rights of others who
need the water for normal irrigation purposes of their cultivated land and hay
meadows.







[5]

Fly
involved
an action alleging that the plaintiffs bean crop was frost damaged by the failure
of the defendant water district to supply irrigation water to the
crop before frost came as growing bean crops are less susceptible to injury
from frost when freshly irrigated than at other times.  The Court overturned a
trial judgment for the plaintiff on the ground that the jury should have been
asked to answer whether the defendant could reasonably have anticipated the
coming of a killing frost and whether the furnishing of water before the frost
came would save the crop.  Thus the decision turned on issues of reasonable foreseeability
and causation.  It does not stand for the proposition that water for frost
protection is not irrigation.

[6]

The court in
Fly
made some passing
observations about competing demands by users for scarce water resources but
did not conclude that the water at issue was not irrigation water.  As the
water was intended to stimulate growth of the bean crop through the soil it
could not be seriously contended otherwise.

[7]

These observations in
Fly
may have
prompted the conclusion of the chambers judge, quoted above, that the use of
water for frost protection might jeopardize the rights of other water users who
need
the water for normal irrigation purposes.  The appellant submits that there
was no evidence before the chambers judge which could support that conclusion
and that the judge was required to confine his decision to the facts stated in
the special case.  In my respectful view, that objection is well taken and the
conclusion of the chambers judge on this point must be rejected.

[8]

The chambers judge referred to a number of
dictionary definitions of irrigation and nourish.  In my view, while they
are of some assistance they are not definitive.  The chambers judge stated the
plaintiffs position to be that the purpose of properly irrigating lands is to
render them, in the context of their soils and climate, more productive for
growing of crops appropriate to the locality, which would include the purpose
of protection from frost.  The chambers judge did not accept that position. 
In my respectful view, he was wrong.  In this instance, the purpose of the irrigation
sprinkling was to protect the vines from frost during their growing season.  In
the broad sense, it was to make the vineyard more productive by protecting the
growth on the vines from frost in the same way that irrigation water would
protect the vines from drought.  In the event of drought the irrigation would
provide more than food and other nutrients.  It would simply prevent the plants
from drying out and dying for lack of water.  For that reason nourish in the
definition cannot be interpreted as narrowly as the respondent submits.  I
think that the use of water for frost protection of grapevines by sprinkling
during the growing season is within the statutory definition of irrigation
purpose in the
Water Act
.

[9]

In the result, I would allow the appeal and
answer the question Yes.

[10]

HUDDART, J.A.
: I agree.

[11]

THACKRAY, J.A.
: I agree.

[12]

HUDDART, J.A.
: The appeal is allowed.  The
      order of the chambers judge is varied in accordance with the reasons of
      Mr.
Justice Mackenzie.



The Honourable Mr. Justice Mackenzie


