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Judge rules in curious case of the moving creek between Mara neighbours

Judge dismisses creek claim

Did a creek separating two Shuswap properties move over the course of more than century?

A BC Supreme Court judge says yes.

Neighbouring landowners on either side of Johnson Creek in Mara went to court to settle their dispute.

Robert Burko and Karen McKibbin argued the creek has not moved since it was surveyed in 1911.

The property line between their land and that of Cory and Tracey Martindale was defined as the centre of the creek, but in a judgment issued Jan. 3 in Kamloops, Justice Howard Gomery agreed with the plaintiffs.

Burko and McKibbin own the property to the south of the creek and operate the Whispering Pines campground and RV park there.

The Martindales own the property on the north side of the creek and contend it has moved so that their parcel of land now includes land to the south of the creek’s present-day location.

Both parties produced surveyor's report supporting their contentions, however the judge found the creek likely moved suddenly during a flooding event decades ago.

Both neighbours claimed damages for trespass, with the issues of liability and damages to be tried once the property line was decided.

The judgment noted the creek varies between 3 and 25 metres in width, with substantial variations in water flow according to the season. It has overflowed its banks during spring freshet in 1997, 2012, 2017, and 2022.

Both properties are located on an alluvial fan associated with the creek.

For many years, the northern parcel was unoccupied, as it was owned by two brothers who lived in England. The Martindales bought it in 2003.

The campground on the south side was established in the 1960s. Some of the campsites are located on disputed property. Burko and McKibbin purchased the campground 2017.

The judge found the creek follows the 1911 plans where it crosses Highway 97, but then jogs abruptly to the north before turning again to the west, gradually diverging as much as 58 metres north of the line indicated in the plans.

The Martindales claimed the creek moved from its location in 1911 to something approximating its present location following a flooding event in the 1940s, and that the creek has not marked the boundary between the properties since then.

The lone set of plans and several aerial photographs were taken into evidence, and Gomery said the images provided "persuasive but not necessarily conclusive evidence that Johnson Creek changed its course" sometime between 1928 and 1969.

Gomery dismissed Burko and McKibbin's court action.

Costs were reserved for determination following trial of remaining issues brought by the Martindales.



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