Is a landowner entitled to recover the cost of a breach of a contract to build a monumental fountain on his land?

Alberta, Canada


The following excerpt is from Calco Ranches Limited v. Ponoka (County), 1994 ABCA 191 (CanLII):

and at page 1-117: "The likelihood of the plaintiff actually performing the restoration is an important factor. A hypothetical but often cited example is a contract to build a monumental fountain so ugly that it would reduce the value of the owner's land, followed by a breach of the contract to build. No one doubts that the owner is entitled to the cost of completion, as in case of wrongful damage to the completed fountain, the owner would, if genuinely intending to rebuild, usually be entitled to the cost of restoration. The reason is that the plaintiff is entitled to indulge a specific taste in monumental fountains and is likely to expend the damage award on actual restoration. A plaintiff is bound to act reasonably to mitigate loss, but a court will not say that it is unreasonable for the plaintiff to build the particular fountain wanted, for the court will not substitute its judgment for the plaintiffs on an aesthetic matter. In Radford v. De Froberville, the plaintiff was held to be entitled to recover the cost of building a wall on her land even though the cost exceeded the diminution in value to the land caused by the defendant's breach of covenant, and even though the plaintiffs purpose was not personal use, for the land was rented, but to benefit her tenants. The court evidently took the view that it was not unreasonable for a landowner to make the same sort of improvements for the benefit of tenants as would be made for the owner's own benefit."

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