Drainage lawsuit in 1899 was costly to East Luther Township

Robert McKim is a name that has appeared in this column a number of times. An Irish immigrant, McKim settled in Peel Township and operated a large sawmill at Parker in the 1860s and 1870s. He sat as MPP for North Wellington in the 1870s and 1880s, and afterwards served as the sheriff and official assignee of Wellington County.

Less well known is his daughter, Catherine. In 1899, though, her name became well known when she successfully sued the Township of East Luther under the Drainage Act for damages to a 400-acre parcel of land she owned that straddled the East Garafraxa-West Garafraxa town line.

The origin of the case went back to 1892, when East Luther constructed a drain from Wyld Lake to a branch of the Grand River. The ditch measured about six miles in length, and for a portion of its course it followed the township line between East and West Luther Townships. The project had been a major one, costing about $3,000, and was known officially as Drain Number 10.

A portion of the course ran along the edge of Catherine McKim’s property, and intersected a stream that drained part of her farm property, located at Lot 18, Concession 7 of West Luther and Lot 19, Concession 6 in East Luther. Her complaint was that every spring the Grand River backed up through the ditch and onto her land.

Thomas Hodgins, a referee under the Drainage Act, heard the case in Orangeville in a marathon three-day session in early June 1899. Only East Luther was a defendant. Catherine McKim had come to an agreement with West Luther prior to the session. The amount of that settlement is not known. It was not reported in area newspapers, and the council minutes and financial records of West Luther for that period have not survived.

Miss McKim hired Hugh Guthrie, of Guelph, and a lawyer named Matthew Wilson, from Chatham, who had much experiences in drainage cases. East Garafraxa employed W.L. Walsh, of Orangeville, and J.A.V. Preston, of Grand Valley, to handle the township’s case.

Guthrie opened his case by calling an expert drainage engineer named McDonnell, from Chatham. McDonnell had much experience draining large portions of Essex and Kent County, much of which had been swampland. He testified that the fall in the drainage ditch from Wyld Lake to the McKim property was about seven feet in two miles, and that there was no significant drop from there to the Grand River. The drain was entirely inadequate, he stated, and improperly laid out, and that remedial measures would cost in the neighbourhood of $12,000.

Other witnesses supported McDonnell’s measurements and statements.

The defendant’s witnesses and lawyers claimed that the ditch had been properly constructed and was adequate for its purpose. The cost of the remedial actions far exceeded the value of the affected property, they argued.

Interviewed by reporters after the session, McDonnell stated that it was possible to drain the entire Luther Marsh for the $12,000 figure he mentioned in his testimony. The work would require steam shovels to dig a main trench 12 feet deep and 20 feet across, which would discharge into the Grand River in West Garafraxa Township. Assessments of the cost would be made against about 20,000 acres of land, which would be turned from marsh to valuable farm land.

At the conclusion of the evidence, referee Thomas Hodgins reserved his judgment in order to consider the evidence, and to visit the affected property personally. The case provoked much discussion over the summer of 1899 amongst East and West Luther land owners and farmers. Hodgins issued his ruling on Oct. 25. He found that Drain Number 10 was not in a proper or efficient state of repair, and that the Township of East Luther had neglected to maintain the drain as required by law. He valued the damages suffered by Catherine McKim at $250, and awarded her that amount. He also awarded her the legal costs of her case, and that brought the total cost to the township to about $1,000. In addition, he required the township to clean out the drain and to maintain it properly, as was required by the Drainage Act.

The cost of the settlement would be shared by the Township of West Luther and the Village of Grand Valley, with 82% of the cost accruing to the township.

Both ratepayers and the councils of the two municipalities feared the impact of the settlement on their tax rate. The councils called a joint public meeting at Grand Valley for Nov. 13.

Many people at that meeting urged their councillors to appeal the decision. The legal opinion of the municipal solicitors recommended otherwise. The ruling of the referee could have been much more costly to East Luther. Hodgins did not fault the design of the drainage ditch, which was questionable at best, but only the inadequate maintenance. The township was unlikely to be exonerated in an appeal, its lawyers argued, and the risk of a more adverse judgment were considerable.

Catherine McKim also considered an appeal. She stated that the judgment of $250 to be far below the damages she had suffered, and there was no order for the township to construct the additional drainage she considered necessary to protect her land from flooding. On the other hand, legal costs to gain the $250 judgment had totalled more than $700, and she was fortunate that the ruling forced the Township of East Luther to cover that expense.

In the end, she concluded that an appeal was too risky. The land that flooded was, at best two feet or so above the level of the Grand River. It was difficult to argue that flooding would not occur seasonally on land that was so low. 

It is interesting that no one sought to pursue engineer McDonnell’s proposal to construct a major drainage ditch to eliminate the Luther Marsh. Within a few years, the voices of conservation would become louder and eventually dominant, as the value of the marsh in holding water in springtime and in preserving the health of the Grand River came to be better recognized..

East and West Luther had suffered from major bush fires in the 1880s. One of them had burned for three years, smoldering in the peat that had constituted portions of the swamp.

Those who, during the 1890s, saw a significant agricultural potential on the cleared and burned land were proven wrong in the early 20th century. The soil was not as fertile as had been believed originally, and the area was prone to frosts in June and late August.

From the amount of the award made by Thomas Hodgins, it is clear that he was aware of the problems facing agriculture there, and that he did not regard Catherine McKim’s property as prime farm land.

It appears that Catherine McKim never lived on the land she owned in East and West Luther. That may have influenced the judgment made by Hodgins. Today there is no visible evidence of the controversial drainage ditch. The majority of her farm land has been, since 1954, beneath the waters of the new Luther Lake, which has backed up behind a dam constructed by the Grand River Conservation Authority.


Stephen Thorning