Sometimes fences don’t make for better neighbours.
A court battle between Surrey next-door neighours over fences and a deck came to a head on April 3 with Justice Paul Riley finding the defendants liable for trespassing and ordering them to remove their “encroaching structures” within 60 days.
The trial was heard in B.C. Supreme Court in New Westminster.
“I find that the evidence overwhelmingly supports the position of the plaintiffs as to the boundary line between the two properties,” Riley stated in his April 3 reasons for judgment. “There is overwhelming, uncontradicted evidence that the high back fence, the deck, and the high front fence run over the property line.”
Plaintiffs Bradley Percy Scott Baxandall and Jennifer Anne Nelson own a residential property on 192 Street and 70 Avenue, with defendants Blaire Tiffy Edward Campbell and Adrianne Alyse Campbell owning an adjacent property.
The plaintiffs acquired their property on May 28, 2020 while the defendants acquired theirs on Nov. 1, 2018.
The plaintiffs’ case was focussed on four structures encroaching on their land, namely a ground-level backyard deck, a high wooden fences in the front and back yards and a low wooden fence running along the front and north side of the Campbell’s property.
“I observe that the three fences not only extend onto and encroach upon the Baxandall property, but they also have the effect of enclosing a portion of it so as to make it inaccessible to its owners,” Riley decided.
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The court heard the deck, high back fence, and high front fence were there when the plaintiffs bought their property while the low wooden fence was erected after they took possession. The plaintiffs filed their claim on July 14, 2021 with the defendants filing their response that Aug. 27 along with a counterclaim alleging “harassment, trespass, nuisance, and intentional infliction of emotional distress.”
The judge decided that none of the allegations in the counterclaim, which he found to be “on the periphery” of the dispute, needed to be resolved “in order to decide the trespass and encroachment claims,” which he found to be “discrete issues readily separated from the balance of matters in issue in the litigation. The remaining issues, namely damages for trespass and the allegations in the counterclaim, are easily segregated or hived off and left for determination at trial, if necessary.
“Even though the conduct complained of in the counterclaim may have been triggered by the dispute over the property line, to the extent that the conduct complained of in the counterclaim is actionable, it would be actionable independent of the precise location of the property line, or the status of the alleged encroachments,” Riley reasoned. “Although the acrimony between the parties arose because of the dispute over the property line, if there is anything actionable about Mr. Baxandall’s conduct, it is not dependant on proof or disproof of the plaintiffs’ trespass or encroachment claims.”
Riley determined that the “allegation that Mr. Baxandall harassed Mr. Campbell in the course of their dispute over the property line adds literally nothing to the analysis of the claims raised by the plaintiffs. Conduct of this sort is not to be condoned or encouraged, but I do not see how it could materially alter the determination of an otherwise bona fide trespass claim arising from structural encroachments, at least on the factual matrix of this case.
“To be clear, I make no findings on these allegations. My point is that if Mr. Baxandall engaged in any civilly actionable misconduct, this can be addressed in a trial on the counterclaim, should the defendants choose to pursue it. None of this should stand in the way of a just, timely, and cost-effective determination of the issues before the court in this summary trial application.”