Deyo v. Athol Housing Authority
| Decision Date | 13 February 1957 |
| Citation | 335 Mass. 459,140 N.E.2d 393 |
| Parties | James H. DEYO et al. v. ATHOL HOUSING AUTHORITY. James H. DEYO et al. v. TOWN OF ATHOL. |
| Court | United States State Supreme Judicial Court of Massachusetts Supreme Court |
Jay W. Mead, Orleans, for plaintiff.
William Garbose, Athol, William M. Quade, Gardner, for defendants.
Before WILKINS, C. J., and SPALDING, WILLIAMS, COUNIHAN and WHITTEMORE, JJ.
In each of these cases the plaintiffs seek to recover for damage to their property caused by the discharge upon their land of water from the adjoining land of Athol Housing Authority and the adjacent land of the town of Athol. The cases were consolidated for trial and referred to an auditor whose findings of fact were to be final.
He designated certain portions of his report as 'Preface,' 'Facts,' and 'Conclusion and Finding.' Under the heading 'Facts' it was stated that the plaintiffs are husband and wife and own as tenants by the entirety a parcel of land on the northerly side of Wilson Avenue in Athol, approximately rectangular in shape, with boundaries measuring about 60 feet in front and back and about 140 feet on the sides. There is a house and a garage on the property. On January 23, 1950, Athol Housing Authority acquired the adjoining land on the north and west by an order of taking. In the spring and summer of that year it constructed a mecadam surface road called Burma Road running north from Wilson Avenue adjacent to the westerly boundary of the plaintiffs' land. This road was presented to and was accepted by the town as a public way. The authority retained title to a sidewalk and a three foot strip of grass along its easterly side between it and the plaintiffs' westerly property line. The land of the authority north and northeast of the plaintiffs' land was in large part 'spongy and swampy' and sloped generally from the southeast to the northwest. At the time Burma Road was built the authority dug a drainage trench three or four feet deep and four or five feet wide running in a southwesterly direction from the northeast corner of its land to a catch basin installed 12 feet from the plaintiffs' northern boundary. From this catch basin it laid an underground pipe paralled to and about 12 feet from the plaintiffs' boundary for a distance of about 80 feet to a catch basin at the curb in Burma Road, where the pipe connected with a sanitary sewer running from there to Wilson Avenue. From October, 1950, to May, 1951, particularly after rainy weather, water from the trench, carrying silt and dirt, overflowed the catch basin at the end of the trench and ran toward Burma Road over the ground between the catch basin at the end of the trench and the catch basin at Burma Road. It 'collected on the westerly side of the plaintiffs' property.' During this period water at different times collected in the plaintiffs' cellar to heights varying from 4 to 20 inches causing substantial damage. Previous to the construction of Burma Road the land on which it was built was lower than the plaintiffs' land and water drained from pipes on the plaintiffs' land westerly across the lot where Burma Road is now located. This medium of drainage was blocked by the fill used in Burma Road and resulted in a 'further retaining of water in the plaintiffs' cellar, and * * * a retarding of the flow of water from the plaintiffs' property and raised the water table.'
Under the heading 'Conclusion and Finding' the auditor reported that 'permanent injury to the plaintiffs' property was caused by a situation created by both defendants,' and that the total damage sustained by the plaintiffs was $2,250. He assessed damages in that amount against each defendant with interest from July 12, 1951, the date of each writ. In each case judgment was ordered for the defendant and the plaintiffs appealed.
A landowner may collect surface water upon his land for a lawful purpose but he is liable if he discharges it on his neighbor's land by means of a definite artificial channel. Smith v. Faxon, 156 Mass. 589, 596, 31 N.E. 687; Fitzpatrick v. Welch, 174 Mass. 486, 55 N.E. 178, 48 L.R.A. 278; Nye v. Swift, 190 Mass. 143, 146-147, 76 N.E. 652; Mahoney v. Barrows, 240 Mass. 378, 379, 134 N.E. 246; Manning v. Woodlawn Cemetery Corp., 245 Mass. 250, 251-252, 139 N.E. 830. He is also liable if surface water so channelled is artificially retained so that by its retention it is deflected or backed up upon another's land. Bates v. Inhabitants of Westborough, 151 Mass. 174, 181, 23 N.E. 1070, 7 L.R.A. 156. It is immaterial whether injury from water so collected or retained results from the flow of surface water or from subsurface percolation. Ball v. Nye, 99 Mass. 582, 584; Wilson v. City of New Bedford...
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