Anntco Corp. v. Shrewsbury Bank & Trust Co.

• Decision Date: 07 November 1967
• Citation: 230 N.E.2d 795,353 Mass. 250
• Parties: ANNTCO CORPORATION v. SHREWSBURY BANK AND TRUST COMPANY.
• Court: United States State Supreme Judicial Court of Massachusetts Supreme Court

Page 795

230 N.E.2d 795

353 Mass. 250

ANNTCO CORPORATION v. SHREWSBURY BANK AND TRUST COMPANY.

Supreme Judicial Court of Massachusetts, Worcester.

Argued Oct. 5, 1967.

Decided Nov. 7, 1967.

John W. Spillane, Worcester, for defendant.

Edward P. Healy, Worcester, for plaintiff.

Before WILKINS, C.J., and SPALDING, CUTTER, KIRK and SPIEGEL, JJ.

SPIEGEL, Justice.

This is a bill in equity to enjoin a continuous trespass by the defendant in draining water from its premises into a conduit running through the plaintiff's land. The suit was referred to a master.

After the master filed his report the trial judge ordered the case recommitted to the master for findings of fact on certain aspects of damage. The defendant filed objections to the master's report on the order of recommittal. The judge entered an interlocutory decree confirming the master's report 'so far as injunctive relief is concerned.' No appeal was taken from the interlocutory decree. A final decree was entered enjoining the defendant from 'suffering or permitting water to be piped or conducted from its * * * premises so that it flows in or through a pipe * * * in or under the * * * (plaintiff's) premises.' From this decree the defendant appealed.

We summarize the material findings of the master. In 1931, the plaintiff's predecessors in title granted an easement to the Commonwealth, giving it the right to construct and maintain 'upon our land, situated on the southerly side of the proposed State highway (Route 9) in the Town of Shrewsbury * * *, a drain extending from a drainage system to be constructed within the limits of said highway * * *, to discharge water from said drainage system into said drain and through our said land, to carry water away from said highway and over and through our land above described, for public convenience and for the proper construction and care of said highway.' The deed referred to a plan which showed a proposed thirty-inch drain running under the highway and diagonally across the land in question. The Commonwealth did subsequently construct such a drainpipe. In 1953, the plaintiff acquired the land, subject to the easement. At that time there was one store building on the property. The plaintiff then built a second, cellarless building 'over the area containing the 30 inch pipe,' which was about eight feet underground. The two buildings 'have been and are occupied by commercial tenants.' '(T)he said pipe at the time of construction of said building was mainly used for drainage of water from a wet swampy area located on the northerly side of * * * (Route 9) * * * and * * * the water ran through the pipe in the * * * (plaintiff's) property after reaching same through a 30 inch pipe which crossed * * * (Route 9) from north to south.' In 1961, the defendant, shortly after its formation, purchased land on the south side of Route 9 adjacent to that of the plaintiff. Construction of the bank building was begun in the same year. It was discovered that there was a 'continuing and persistent' problem of excessive ground water at this site. The defendant negotiated with the plaintiff to drain this water across the rear of the plaintiff's land, but this idea was abandoned as impractical. The defendant then applied to the Department of Public Works for a permit 'to enter the State highway drainage system.' This permit was granted, over the objections of the plaintiff. On July 17, 1961, an eight-inch pipe, draining the defendant's land, was connected to the thirty-inch pipe 'in the gutter line of the southerly side of * * * (Route 9) approximately opposite the halfway point of the frontage of * * * (plaintiff's) land on * * * (Route 9).' Since then, percolating ground water from the defendant's property on the south side of Route 9 has been added to the flow of water from the north side of Route 9 through the thirty-inch pipe on the plaintiff's property. The pipe is large enough to accommodate this increased flow. $The master concluded 'that the connection made by the Shrewsbury Bank & Trust Co. under the permits of the Department of Public Works * * * was not within the meaning and intent of the language used in the easement granted in 1931 * * *. (T)he purpose of the granted easement was for the construction of a drain from the drainage system to be constructed within the highway * * * and it was also for the purpose of carrying water from the...