Background:
Giacomo D’Amico and John Edward Atkinson owned adjacent properties in Vernon, British Columbia, near Okanagan Lake. A retaining wall, built before either party acquired their properties, separated them. In 2021, D’Amico purchased his property and later discovered, through a survey, that the retaining wall encroached onto his land. He petitioned the court to have the wall removed, citing encroachment. Atkinson, who had purchased his property in 2009, believed the wall was within his boundaries and sought an easement instead of removal.

Legal Issues:
The case addressed:

• Whether the doctrine of accretion (the gradual increase of land through natural forces) was correctly applied.
• Whether the chambers judge was correct in granting an easement over the encroaching wall.
• Factual errors regarding the parties' knowledge of the encroachment at the time of purchase.

Court’s Decision:
The Court of Appeal upheld the chambers judge’s decision to grant an easement under the Property Law Act rather than ordering removal of the retaining wall. The court found the encroachment minor and ruled that removing the wall would be costly and unnecessary. The judge determined that Atkinson had an honest belief the wall did not encroach, while D’Amico knew of the encroachment before purchasing the property.

Compensation Award:
D’Amico was awarded $2,000 for the easement, as the encroachment had little effect on his property’s value or use.

Costs:
The court dismissed the appeal in favor of John Edward Atkinson. No further costs were awarded.