Fitzgerald v. Fortier

• Decision Date: 31 October 1935
• Citation: 198 N.E. 167,292 Mass. 268
• Parties: FITZGERALD v. FORTIER.
• Court: United States State Supreme Judicial Court of Massachusetts Supreme Court

292 Mass. 268

198 N.E. 167

FITZGERALD v. FORTIER.

Supreme Judicial Court of Massachusetts, Worcester.

October 31, 1935

Suit in equity by James F. Fitzgerald against Adelard I. Fortier. The master's report was confirmed by an interlocutory decree and a final decree was entered for plaintiff. From the final decree, defendant appeals.

Affirmed.

Appeal from Superior Court, Worcester County; Williams, judge.

W. C Mellish, of Worcester, for appellant.

R. G Dodge, of Boston, for appellee.

CROSBY, Justice.

This is a suit in equity to restrain the defendant from flowing the plaintiff's land by obstructing the flow of a stream or brook. This suit and another brought by the same plaintiff against the same defendant were referred to a master, who states in his report that they were tried together before him and involved substantially identical issues. The master found that in the first suit the inhabitants of the town of Auburn were originally parties defendant, but prior to the hearings that suit had been dismissed as to them; that the second suit was brought without knowledge on the part of the present counsel of the fact that the earlier suit was pending, the plaintiff believing that it had not been filed by his former counsel. The master further found that counsel for the plaintiff stated during the hearings that he desired the second suit treated as supplementary to the original suit. On May 25, 1934, both parties agreed that the two suits be referred to a master and an order of reference was entered accordingly. In view of the fact that the defendant agreed to the reference of both suits to the same master, and they were heard together, the defendant is deemed to have waived whatever rights he may have had to be heard upon his plea in abatement previously filed. The interlocutory decree overruling the plea in abatement is affirmed.

The master filed one report for both suits. He found the plaintiff's contention in substance to be that the defendant has caused, and is continuing to cause, a natural watercourse, which runs through the defendant's land, but not through the plaintiff's land, ‘ to back up on to the plaintiff's land due to obstructions placed in its natural bed by the defendant, and has thus caused the plaintiff's land, on divers occasions, to be flooded causing him considerable damage in the enjoyment of his property and tangible damage to vegetation on his premises'; that the plaintiff and the defendant are contiguous land owners of certain premises located near Southbridge Street and about at the city line between Worcester and the town of Auburn; that the plaintiff's property, consisting of a lot of land bordering on Jerome Avenue, was acquired by the plaintiff 1891 and is known as 7 Jerome Avenue, which has become a public street; that upon this lot the plaintiff in 1893 built a house facing Jerome Avenue; that toward the southeasterly end of Jerome Avenue and to the southeast the contour of the land is very hilly resulting in a general slope and watershed toward Jerome Avenue; that the defendant purchased his property in three separate lots; that at the time the first two lots were purchased they were somewhat swampy and several feet lower than Southbridge Street; and in 1925 he started filling them in; that prior to the filling by the defendant ‘ a well-defined channel meandered across the first two lots and eventually emptied into the culvert at Belisle Ave., and that into this channel flowed the water which originally came from the culvert on Jerome Ave.’ ; that prior to the filling by the defendant on his land the plaintiff never was troubled with water backing up on his premises; that since the filling at least two or three times a year in the spring and fall water has backed up over the plaintiff's land, sometimes reaching almost to his house; that on at least two occasions water has backed up to such an extent as to cause water in the plaintiff's cellar, on one occasion to a depth of two feet, and at another time to a depth of one foot; that as a result of water backing up the plaintiff's garden and his fruit trees were destroyed; that the cause of the water backing up on the plaintiff's land was the obstruction by the defendant of the stream and in the future it will cause water to back up on to the plaintiff's land, and result in serious damage to the plaintiff; that at certain times of the year no water flows through various channels described in his report, whereas at other times, particularly in the spring, the channels are completely filled with water. He further found that the opening in the culvert on the easterly side of Jerome Avenue is four feet in width and two and one-half feet in height, and that the opening in the culvert under Belisle Avenue is four feet in width and two feet in height. He states: ‘ Unless, because of the fact that the source of all the water...