Chesarone v. Pinewood Builders, Inc.

• Citation: 345 Mass. 236,186 N.E.2d 712
• Parties: James CHESARONE v. PINEWOOD BUILDERS, INC., and Town of Framingham.
• Decision Date: 17 December 1962
• Court: United States State Supreme Judicial Court of Massachusetts

Page 712

186 N.E.2d 712

345 Mass. 236

James CHESARONE v. PINEWOOD BUILDERS, INC., and Town of Framingham.

Supreme Judicial Court of Massachusetts, Middlesex.

Argued Oct. 2, 1962.

Decided Dec. 17, 1962.

Daniel Needham, Jr., Boston, for plaintiff.

Louis Kobrin, Boston, for Pinewood Builders, Inc.

Cornelius J. Sullivan, Town Counsel, for Town of Framingham, submitted a brief.

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

SPIEGEL, Justice.

This is a bill in equity to enjoin the defendants from 'discharging and throwing water in an artificial stream on the land' of the plaintiff and for damages. The suit was referred to a master. Each of the parties filed objections to the master's report. The court below entered an interlocutory decree in which the exceptions of all the parties were overruled and various motions filed by the 'several parties' were denied and recommittal to the master for further findings as follows was ordered:

'1. That further facts be reported after taking additional testimony, if required, for the purpose of applying a correct measure of damages in accordance with the principle of establishing damages suggested in Belkus v. City of Brockton, 282 Mass. 285, , more particularly, to report facts which would indicate to the Court whether--if, the injury is reasonably curable by repairs, the reasonable expenses of repairs is less than the diminished market value.

'2. That the master report facts which would indicate to the Court--if the act is continuous, but subject to termination by the later act of the * * * [defendants], the lessened rental value while the injury continued to the date of the bill.'

None of the parties appealed from this decree.

After the master's report on recommittal each of the parties filed objections to that report which, under Rule 90 of the Superior Court (1954), are treated as exceptions. An interlocutory decree was entered overruling the exceptions of the plaintiff and the defendant Pinewood Builders, Inc., sustaining the exceptions of the town of Framingham, and ordering the master's report and report on recommittal 'confirmed as so modified.' Pinewood Builders, Inc. (hereinafter referred to as Pinewood), appealed from this decree. The court entered a final decree ordering Pinewood to pay to the plaintiff $21,750 plus interest and in 'all other respects * * * dismissed' the bill, from which the plaintiff and Pinewood appealed.

A summary of the material facts found by the master follows. In 1931, the plaintiff purchased a parcel of land consisting of about forty-three acres in the towns of Framingham and Sudbury. In 1953, the plaintiff sold a portion of this land to the Lexington Sand & Gravel Co. and as a part of the transaction granted that company an easement for five years to '* * * dump waste water and waste material upon, and * * * erect, maintain, and operate * * * equipment' on a part of the plaintiff's remaining land. By deeds dated January 10, 1959, and May 15, 1959, the Lexington Sand & Gravel Co. 'transferred its title in the land originally belonging to' the plaintiff to the defendant Pinewood. The parcel of land to which the plaintiff retained title comprised approximately fourteen and a half acres. In 1931, all of the land was in a 'wild and undeveloped state' and 'had a tendency to become damp and wet as a result of the flood of natural water onto it from surrounding land including land subsequently owned by the' defendant Pinewood. However, about 1932, the plaintiff made certain improvements to the land, chiefly in the form of draining ditches which resulted in drying up the and with the exception of a 'wet spot' of about 1,000 square feet. Except for this 'wet spot,' the land would remain dry and usable in its natural state if the adjacent land now owned by the defendant Pinewood were left in its 'natural undeveloped' state.

In 1959 and 1960, immediately after its purchase of the land from the gravel company, Pinewood embarked upon a project to develop its land, together with some land adjacent thereto, for several hundred housing units 'under the name of Woodfield I, II, and III.' Pinewood, with the approval and permission of the planning board of Framingham and the permission of the town engineer and members of the engineering department, then graded the land so that it gradually sloped in a descending plane toward the plaintiff's land. As a part of this authorized plan a surface water drainage system was installed which caused all of the surface water from the area to be collected into the drains and then to be discharged on the land of one Raymond from which it spilled over onto the plaintiff's land. Upon the complaint of the plaintiff, Pinewood conferred with a representative of Framingham and 'it was determined that it would be better for all parties * * * to defend one law suit instead of two.' As a result thereof a new drain was constructed which discharged the surface water at the boundary of the plaintiff's land alone, avoiding the Raymond property.

There never was any natural watercourse 'existent' from Pinewood's land running over the plaintiff's land. Pinwood's construction 'created a substantial additional burden' on the plaintiff's land making the plaintiff's drainage system inadequate to drain off the water and this resulted in water backing up and flooding the plaintiff's land. Pinewood's actions were 'intentional,' 'deliberate,' and 'tortious.' It 'knew the full effect and result of its construction and location of the exit point of the drainage system of surface water' from Woodfield I, II, and III. Part of the surface water emptying onto the plaintiff's land through Pinewood's system came from land belonging to Framingham and this water 'can be adequately diverted from the present system to another system in such fashion that' the plaintiff's land 'will be free of any future flow from * * * Framingham's land.' A deed from Pinewood to one of the lot owners, typical of the hundreds granted, revealed that Pinewood retained ownership of the streets and drains in the development. The cost of correcting the condition by proper drain under the plaintiff's land was determined to be $28,130.60.

In his supplemental report the master found that twelve and a half acres of the plaintiff's land were either flooded or affected by the flooding, and the value of that land to be $21,750, which figure was adopted by the court in its final decree.

1. The plaintiff contends that he is entitled to injunctive relief against both defendants and not merely damages from Pinewood. Subject to the possibility of certain additional findings of fact to which we shall refer later in this opinion we hold that injunctive relief should be decreed against Pinewood. Without the pretext of an easement or other legal right, Pinewood has artificially collected, channeled, and discharged its surface waters onto the plaintiff's land. Such action constitutes a continuing trespass. Manning v. Woodlawn Cemetery Corp., 245 Mass. 250, 251, 139 N.E. 830; Fortier v. H. P. Hood & Sons, Inc., 307 Mass. 292, 296, 30 N.E.2d 253; Miller v. Darby, 336 Mass. 243, 246, 143 N.E.2d 816. An intentional and continuing trespass to real estate may be enjoined. Ottavia v. Savarese, 338 Mass. 330, 336, 155 N.E.2d 432, 436. Damages are usually inadequate because the plaintiff is not to be compelled to part with his property for a sum of money. "The principal reason for this is that which lies at the foundation of the jurisdiction for decreeing specific performance of contracts for the sale of real estate. A particular piece of real estate cannot be replaced by any sum of money,...