Fergus council considered appealing a court decision in 1925

Through the years municipalities occasionally have been the defendants in lawsuits brought by ratepayers.

In most cases the disagreements were worked out between the parties without a court session. Elected officials disliked the publicity that usually accompanies a court case, and they feared accusations that they were victimizing long-suffering taxpayers.

Occasionally though, a civil suit came before a judge. Through the years, Fergus seems to have had more than its share of such cases. One of them was brought in 1924 by Michael Bergin, operator of a butcher shop on St. Andrew Street. Unlike many litigants, he was successful in suing Fergus.

The case was a fairly complicated one. Though it had been buried underground for years, a small stream crossed the main downtown business section at St. Andrew Street, between St. David Street and Provost Lane, on its way to the Grand River. The lower portion of the water course had been routed through a series of culverts for decades, and most residents were not even aware of its existence where it crossed St. Andrew.

The stream flowed beneath Bergin’s butcher shop and through his property to the rear of the store. Over time the culvert system, a structure made of wood, was extended upstream from Bergin’s property, and culverts were constructed where the stream crossed streets.

After the First World War, Fergus council undertook improvements to most of the culverts upstream from Bergin’s property. At St. Patrick, St. George, Hill and John Streets, and at Provost Lane, concrete culverts, of much increased capacity, replaced the old wooden ones.

At the same time, or shortly afterwards, the Fergus town crew graded most of those streets to direct more rain and melt water to the creek.

The increased flow in the creek soon caused trouble for Bergin’s property. His land flooded regularly after major rain storms, and invariably every spring when melting snow swelled the flow.

Several times council brushed aside Bergin’s complaints of flooding on his property. He decided to take legal action against Fergus council, and to bolster his case, he engaged C.L. Bowman, a qualified engineer who specialized in municipal projects.

Fergus council dug in its heels, refusing to make improvements or raise the capacity of the lower portion of the waterway. Bergin took the case to court, and in late 1924 his suit came up before Judge Anson Spotton in a Guelph courtroom.

Bowman’s testimony was key to the case. He told the court the drainage work undertaken by Fergus upstream from Bergin’s property had increased the total flow in the creek by two-thirds. As well, the new drainage work meant that the stream flowed very quickly after a rainfall, and that for short periods the creek would handle several times its natural flow. Formerly, noted Bowman, about a third of a rainfall would sit in pools along the water course and evaporate, and another third would be absorbed into the creek bed and add to the water table. He supported Bergin’s claim that flooding now occurred frequently – not just in spring – and that the flooding was easily 50% greater than before.

Complicating the case was the fact that the stream began in Nichol Township, and that some of the water originated there. Bowman noted, though, that water flows from Nichol had changed little over the years.

Bowman argued the work done by Fergus had increased the flow of water through Bergin’s property, exceeding the capacity of the original culvert system. He placed the damage to Bergin’s ice house at $115, and damage to the store and to meat there in addition to that amount.

Bergin told the court that he had expended $545 in building a concrete conduit to get the water through his property, in place of the old wooden culvert system that was deteriorating with time.

Bergin’s new concrete conduit exceeded the capacity of the old one. Judge Spotton ruled that he would allow Bergin the cost of the increased capacity of the system.

Spotton disallowed several of Bergin’s claims, but ruled that he was entitled to an award of $180 from Fergus, plus his legal costs. As usual, Spotton offered sound reasons for his ruling and for the amount of his award. As much as possible, he believed the stream should handle the amount of water it had carried when Bergin acquired the property. Spotton was proud of his reputation for being fair and hated being overruled by higher courts.

For his part, Bergin was happy to win the case, but somewhat disappointed some of his claims were rejected by Spotton, and that the award he received was smaller than he believed it should have been.

Fergus council met in a special session on Jan. 19, 1925 to consider the ruling and the award to Bergin. Lawyers Kearns of Guelph and Wilson of Fergus, who had represented the municipality, were present. Both recommended that Fergus appeal the decision.

Councillors expressed surprise at Spotton’s ruling, and were inclined to accept the recommendation to appeal the ruling as advocated by their lawyers. The entire council had been at the court session at Guelph, and believed the case for the municipality had been ironclad. It was an excellent example of self-deception: many observers believed that Fergus might have fared far worse.

At the special meeting, some councillors expressed the view that Nichol Township should share in the costs of the settlement, as a good portion of the water in the creek came from the township. Spotton had dealt with that point, supporting the view that the quantity of water from Nichol had not changed substantially over the years.

At the end of the session councillors Small and Templin moved that Fergus appeal the ruling against Fergus. At stake was not only the settlement and the legal costs for both parties, but also remedial action to bring the creek up to a capacity to handle floods without damaging Bergin’s property. That could amount to substantially more than the costs of the suit.

In the end, it appears that Fergus councillors changed their minds, and did not pursue the matter further in court. Ratepayers were already furious that neglect and deferred maintenance on the lower portion of the buried creek had caused the troubles, and they would only grow worse, and more expensive to fix, with time.

There was every possibility that the municipality would lose the case on appeal, and that would only add to the costs while doing nothing to solve the problem.

Reluctantly, Fergus council approved expenditures to improve the course of the buried creek, and increase the carrying capacity. In truth, the creek had evolved into a major part of the storm drainage system on the north side of the river.

The creek continues to flow to this day – and strongly at times of storms – though it is unlikely that more than a handful of Fergus residents are aware of its existence because it is buried beneath streets and private property for several blocks. Even those who glimpse the outlet of the pipe into the river are not aware that it is the end of a major storm drainage system that services a major portion of the north side of old Fergus.


Stephen Thorning