Chesarone v. Pinewood Builders, Inc.

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

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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.

[345 Mass. 237]

Page 713

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 [345 Mass. 236] WILKINS, C. J., and SPALDING, WHITTEMORE, CUTTER, KIRK and SPIEGEL, JJ.

[345 Mass. 237] 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, [184 N.E. 812], more particularly, to report facts which would indicate to the Court whether--if, the injury [345 Mass. 238] 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[345 Mass. 239] 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

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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...