June 14, 2017
Rochette, Doyon, Gagnon
Appeal from a judgment of the Superior Court dismissing an application for a declaratory judgment and permanent injunction. Allowed solely to render an order.
In 2001, the respondent acquired property located at the foot of a bluff, at the top of which the appellant resided. Noticing that disintegrating earth was sliding from the top of the bluff, the respondent sent a demand letter to his neighbour on July 6, 2005, holding him liable for the damage caused by the erosion of the higher land and asking him to perform the necessary work to stabilize it. On September 27, 2012 – that is, 26 years after purchasing his immovable and more than 11 years after the respondent had become owner of the contiguous lower land – the appellant sent a demand letter blaming the respondent for the ruin of the bluff, which allegedly caused the loss of the usable land adjacent to the higher land. The trial judge held that the appellant had no right authorizing him to compel the respondent to build and maintain two retaining walls on his own land and at his own expense.
The obligation to maintain the immovable to which article 1467 of the Civil Code of Québec (C.C.Q.) refers is the owner’s alone. In this case, the evidence does not establish the ruin of the respondent’s immovable, much less prove that this condition can be attributed to his inaction. Moreover, the respondent did nothing to disturb the land that had been accepted by the appellant for over 25 years (art. 991 C.C.Q.). Furthermore, if it were found that the excavation at the foot of the bluff is the source of the appellant’s misfortune, there is no evidence revealing who performed this work, the context in which it was done, or when it was carried out. In this respect, there is no presumption establishing that the performer of the work was an agent of the respondent. In the circumstances, the respondent cannot be held liable. In addition, there is a lack of sufficient causation between the excavation attributed to this unknown agent sometime before 1986 and the landslide observed in 2006. Finally, in his suit the appellant asked the Superior Court to order the respondent to build two retaining walls on his property, maintain these works at his own expense for as long as he is owner of the immovable, and pass on this obligation to subsequent owners. The solution proposed by the appellant causes a serious legal difficulty, as it would create an obligation propter rem that is not accessory to any established real right. Therefore, the appeal is allowed solely to declare enforceable between the parties the minutes of the determination of the boundaries that they signed in October 2013.
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