Finch_lake

Jeff Green | May 31, 2007

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Finch Lake property owner cries foul

by JeffGreen

Charles McCartney owns a small trailer on an acreage that overlooks Finch Lake near Vennachar in Addington Highlands. Within a few metres of his trailer there is a short deeded right-of-way to a neighbouring property. Since McCartney purchased his property in 1990, he has resisted attempts by at least two owners of the neighbouring property to clear that right-of-way so that they could drive into their property.

The property was sold last year, along with 8 acres on the uninhabited opposite side of Finch Lake, for back taxes. The new owner of the property is a company owned by Northbrook residents Fritz and Ursula Nussberger. Last summer, the Nussbergers approached McCartney about putting culverts to re-direct a creek on the right-of-way, and building a road. McCartney said no.

Nonetheless in November, trees were cleared, culverts were put in, and a road was built.

“They did not have the right to do what they did. The right-of-way only gives them the right to pass, not to alter the land in any way,” McCartney contends. “In doing this, they have trespassed on my property, which is a criminal offence.”

When Charles McCartney came to his trailer on the week prior to the May long weekend, he found Fritz Nussberger doing some further work, and he responded by calling the Ontario Provincial Police.

The police later went to the Nussbergers’ home in Northbrook, but when they were shown the papers establishing the existence of a right-of-way, they left.

McCartney also approached the township, in the person of Reeve Henry Hogg, to see if the township would act on the matter. The township has decided not to take a position on the matter, calling it a civil dispute. They even passed a motion to that effect at their May 22 meeting.

Charles McCartney has contacted Leona Dombrowsky’s office, hoping the province will force the OPP to pursue the issue further.

When contacted, Ursula Nussberger said, “We confirmed with our lawyer that we had the right to do what we did at Finch Lake. We told him [McCartney] what we were going to do last September, and we even sent a registered letter to him in October, which he never picked up, telling him what we were planning to do. If he thinks he has a legal case, why does he not start a legal case?”

McCartney is adamant on two points: the Nussbergers did not have the right to make changes to the right-of-way without his expressed permission, and in making changes they have committed a criminal offence.

On the question of whether this is a criminal matter, as McCartney contends, or a civil matter, Reeve Hogg said, “As far we as know, trespass is a civil matter. If he [McCartney] thinks he has a legal right to stop them [the Nussbergers], he has to get an injunction.”

The News contacted township planners from two other municipalities and asked them if having a right-of-way on a deed entitles a property owner to make changes to the land, and both said that it did not.

As to whether it is a criminal or a civil matter, they were non-committal.

A web search revealed that there is a Trespass to Property Act under Ontario law. The Act carries a fine of up $2,000 for anyone who “enters a premises when entry is prohibited under the act or, 2. engages in an activity on premises when the activity is prohibited under this Act”.

This suggests trespass is indeed a criminal matter.

The Act also says that if the person charged “reasonably believed they had title or interest in the land”, that constitutes a possible defence against any charges.

The Nussbergers also constructed a dock on their own property, and cleared the vegetation on the 66’ of waterfront that they had purchased.

The News contacted the Mississippi Valley Conservation Authority (MVC), asking whether approval is needed from them before doing some of the activities the Nussbergers undertook, such as redirecting water from a creek, building a dock, or clearing the vegetation from a shoreline.

John Price, the watershed management co-ordinator for MVC, said that his office has received a specific complaint in this case from Charles McCartney, which they have not yet investigated.

However, he said that in general a dock of the kind the Nussbergers have built does not require a permit. Altering the course of a small creek does not usually require a permit either, unless there is an impact on fish habitat.

“Issues around clearing vegetation from a shoreline, or ribbon of life issues, are not Conservation Authority matters, Price said. “They are matters for the township.”

Addington Highland’s Official Plan has a section about vegetative buffers around lakes. Within a 30 metre buffer area around the high water mark on residential lots, according to section 7.72F of the Official Plan, “clear cutting of trees and shrubs is not permitted.”

The News will update this story as it unfolds.