Belcastro v. Norris

• Decision Date: 24 October 1927
• Citation: 158 N.E. 535,261 Mass. 174
• Parties: BELCASTRO et al. v. NORRIS.
• Court: United States State Supreme Judicial Court of Massachusetts Supreme Court

261 Mass. 174

158 N.E. 535

BELCASTRO et al.

v.NORRIS.

Supreme Judicial Court of Massachusetts, Middlesex.

Oct. 24, 1927.

Appeal from Superior Court, Middlesex County.

Suit to restrain defendant from enlarging a ditch and for damages brought by Giuseppe Belcastro and others against John L. Norris for whom was substituted George S. Norris. From a decree dismissing the bill, plaintiffs appeal. Decree reversed, and decree entered for plaintiffs for nominal damages, and for injunction.

F. Ramacorti and J. M. Russell, both of Boston, for plaintiffs.

E. A. Bayley, of Boston, for defendant.

CARROLL, J.

The plaintiffs and the defendant are owners of adjoining tracts of land in Lexington. A boundary ditch separates the two tracts and from this ditch runs another ditch carrying the drainage across the plaintiffs' land to South Branch of Vince Brook. The land of the plaintiffs and the defendant was drained for more than 20 years by a series of ditches; some of them were natural water courses. In the year 1915 the defendant, in order to drain his land, excavated a new ditch connecting with the boundary ditch between the land of the plaintiffs and the defendant at a point opposite the ditch that crossed the plaintiffs' land. The defendant also constructed an auxiliary ditch, designated on the plan as ditch H. The master found that although the construction of the new ditch and the auxiliary ditch tapped no new source of supply and drained no new territory, yet the excavation resulted in a greater flow of water into the ditch on the plaintiffs' land; and that the plaintiffs' land was damaged in part by this increased amount of water and by the increased rapidity of its flow. The plaintiffs asked for damages and relief against the defendant's using the new ditch and the auxiliary ditch. The bill was dismissed in the superior court.

[1][2] A landowner has the right to improve his land and is not responsible to his neighbor for any damage caused by the natural flow of surface water incident to such improvement. Gannon v. Hargadon, 10 Allen, 106, 87 Am. Dec. 625. But the landowner cannot collect surface water into a ditch or artificial channel and discharge that water on his neighbor's land. Manning v. Woodlawn Cemetery Corp., 245 Mass. 250, 139 N. E. 830. The plaintiffs' land was subject to the servitude of water running through the ditch on their land from the ditches already constructed, but it could not be subjected to the servitude of an additional flow of water resulting in damage to their property caused by the construction of new and auxiliary ditches. As stated by Field, j., in Jackman v. Arlington Mills, 137 Mass. 277, 283, 284:

A landowner ‘has the right to collect the surface water and the natural drainage of his land into an artificial stream, and discharge it into a natural water course on his own land, if the water course is the natural outlet of the waters thus collected, * * * provided that this is done in the reasonable use of his own land, and that the discharge is not beyond the natural capacity of the water course, and the land of a riparian owner is not...