This was an application for a stay of the Engineer’s Order (the “Order”) issued to Earl Devlin, requiring that he drain the water impounded by two dams that he had constructed on his property and that he completely remove the two dams. (He had constructed that dams to provide a water source in the event of a fire in the area.) Mr. Devlin appealed the Order and requested a stay.
The Board applied the usual three-part test to determine whether to issue a stay in this case. It found that there was a serious issue to be tried and that the appeal was neither frivolous nor vexatious. The Board also found that Mr. Devlin would suffer irreparable harm if the stay was not granted as he would be required to deconstruct the dams, and would not likely be able to recover the costs associated with the deconstruction. However, on the question of balance of convenience, the Board found that financial loss or the remote possibility of fire did not outweigh the more imminent possibility of loss of life and property should the dams fail. The Board therefore held that the dams should be removed as ordered.
The application for a stay of the Order was denied.
