The reasons in Yates added yet another facet to the centuries-old law of nuisance. The case involved plaintiffs who alleged nuisance, caused by pre-existing circumstances on the defendant neighbour’s property. The roots of aged trees continued to grow and eventually damaged the plaintiffs’ swimming pool constructed some ten years earlier. The elderly impecunious defendant neighbor had done nothing but allow two large trees to grow on her property. Yet she found herself in compelling circumstances where the trees would have to be cut down at her expense, in addition to a further damages order for the restoration of the pool that she could neither defend nor pay.
After reviewing nuisance law involving trees in United States, England, and Canada by which fault is mostly not an issue, my reasons set out a new general onus on plaintiffs who change the use of their property, giving rise to an eventual nuisance claim on the part of their neighbours. The plaintiff could succeed if the damage was not a reasonably eventually foreseeable consequence, i.e., a form of negligence by changing the use of the property, including that of third persons hired to carry out the work. The plaintiff was required to prove as probable that an available self-help remedy to prevent the nuisance (a root barrier), which was not practicable at the time of bringing the action, was not practicable when the new use of instructing the swimming pool began (paras. 86-93). The case was eventually settled with the involvement of the swimming pool contractors and their insurers.
Two good results from one innovative decision, while providing a precedent for what is achievable in a default judgment that is otherwise patently unjust. Moreover, the case is cited most often to stand for the policy proposition that trees are not lightly removed based on nuisance.
Peter Annis Dispute Resolution 