Is Mani-toba liable in damages for damage caused by the drainage activities of Mani toba?

The drainage activities of Mani- toba may well have created a nuisance for which it is responsible in law. I would, however, prefer to characterize the liability in negligence. It was not argued that Manitoba was negligent in the manner in which it constructed, reconstructed or maintained drains or watercourses in the drainage system. The negligence is the kind described by Matas, J.A., in writing one of the majority opinions in Penno v. Govern ment of Manitoba, [1976] 2 W.W.R. 148 (Man.C.A.). He wrote: "It is not alleged by plaintiff that there was any negligence in carrying out the work in accordance with plans and specifications, nor that any work was improperly supervised. The negli gence is more fundamental than that. There was a lack of concern, in the concept and design of the drainage scheme, for the overall effects of the new system. There was a lack of adequate testing and a lack of proper consideration of information which was available or could have been available to government planners. Damage to plaintiff's land was a direct and foreseeable consequence of defendant's action. Defendant has become liable to plaintiff because of its decision, improperly founded, to carry out the work without suffi cient regard for consequences to plaintiff. It is that negligence, in my opinion, which has made defendant liable in damages." (p. 161) Monnin, J.A. (as he then was), in his majority opinion, found that the defen dant had created a nuisance for which it was responsible in law. In his rea sons, Matas, J.A., comments on the distinction between negligence and nuisance and their respective develop ment in modern law. It is unnecessary, in this appeal, to comment further on this distinction.