Fortier v. H.P. Hood & Sons
| Decision Date | 19 November 1940 |
| Court | United States State Supreme Judicial Court of Massachusetts Supreme Court |
| Parties | ADELARD I. FORTIER v. H. P. HOOD & SONS, INC., & others. |
September 24, 1940.
Present: FIELD, C.
J., LUMMUS, QUA COX, & RONAN, JJ.
Trespass. Drain.
Equity Jurisdiction, To enjoin continuing trespass, To enjoin flowage, Laches. Easement. Prescription. Damages, For tort.
Causing water in "substantial quantity" to flow from a drain in the defendant's building at the top of a hill in a continuous stream through a system of artificial pipes and ditches across the defendant's land and lands of others and finally to flow upon and over land of the plaintiff at the bottom of the hill was a continuing trespass toward the plaintiff for which he was entitled to equitable relief against the defendant although the stream so flowing from the defendant's building was greatly augmented and polluted before reaching the plaintiff's land from contributory sources not on the defendant's land and from surface drainage.
The mere fact, that a drain from one part of a tract of land emptying onto another part was in existence when the owner of both parts conveyed the first, did not warrant the implication of an easement in the grantee to continue to flow the other part in the absence of evidence of the terms of the deed or that such flowage was reasonably necessary to the enjoyment of the granted premises.
Open and continuous flowing of another's land from a drain for twenty years warranted a finding of an easement so to flow by prescription, but in a quantity no greater than that at the beginning of the twenty years.
Although the amount of water flowing upon a plaintiff's land after passing from a drain in the defendant's building through a system of pipes and ditches might not vary exactly in proportion to the amount of water put into the drain by the defendant, the extent of a prescriptive easement of the defendant to flow the plaintiff's land was measured with sufficient accuracy in the circumstances on the basis of the amount put into the drain at the beginning of the prescriptive period.
Laches barring a suit in equity to enjoin flowage of the plaintiff's land was not shown where no prejudice to the defendant resulted from the delay in bringing suit and the flowage was greatly increased in the period shortly before it was brought.
A defendant's contributing in an amount, which was "substantial" but was not capable of accurate measurement, to a flowage of the plaintiff's land from the defendant's land and other sources, although it entitled the plaintiff to relief by injunction, did not permit his recovery of damages.
BILL IN EQUITY filed in the Superior Court on October 9, 1937, against H. P Hood & Sons, Inc., Worcester Milk & Cream Co., town of Auburn, and Charles Cross.
An interlocutory decree confirming a master's report, and a final decree dismissing the bill, were entered by order of Goldberg, J. The plaintiff appealed from both decrees.
A. W. Mitchell, (L.
H. Lougee with him,) for the plaintiff.
J. A. Crotty, for the defendants H.
P. Hood & Sons, Inc., and another.
G. H. Mirick & P.
R. O'Connell, for the defendants town of Auburn and another, submitted a brief.
This is a bill to enjoin the defendants from causing water to flow upon the plaintiff's land and for damages.
At the argument the plaintiff stated that he no longer pressed the suit against the defendants town of Auburn and Cross. The master finds that the amount of water reaching the plaintiff's premises from the defendant Worcester Milk & Cream Co. "is so small as to be inconsequential." There is nothing to qualify the natural meaning of the words quoted. It follows that the bill was rightly dismissed as to all three of these defendants. Downing v. Elliott, 182 Mass. 28 , 31. Smith v. New England Aircraft Co. Inc. 270 Mass. 511 , 526, 531, 532. Cragin v. Jones, 283 Mass. 474 , 480. The real question is whether the plaintiff should prevail against the remaining defendant H. P. Hood & Sons, Inc.
Without repeating the findings of the master in unnecessary detail, the following summary will indicate the situation and conditions out of which this suit arises: The plaintiff owns about ten acres of land on Southbridge Street partly in Worcester and partly in Auburn. This tract is located at the westerly and lower end of a long hill or slope constituting a water shed with an area of about three quarters of a square mile which naturally drains toward the plaintiff's land. The plaintiff's land, or at least a part of it, has always been damp and wet. For five or six years beginning in 1924 or 1925 the plaintiff filled it by allowing it to be used as a dump. Nevertheless for "a good part of the time" since 1931 pools of water have formed there, including one large stagnant pool in the northwest corner. The defendant H. P. Hood & Sons, Inc., operates a dairy upon or near the top of the hill about a third of a mile to the east of the plaintiff's land. Water used in this plant both for refrigeration and for washing bottles and cans flows into a drain and thence in a continuous stream through a system of pipes and ditches across lands of intervening owners and emerges from a twenty-four inch pipe a short distance from the plaintiff's land, whence it flows in a ditch upon and over the plaintiff's land. The stream is also fed from springs on the hillside, from a number of "blind drains" which run toward it, and from some other sources. The Hood refrigerating system alone produces a flow of from twenty-four hundred to twenty-eight hundred gallons a day, in addition to the water used for washing. Thus "a substantial quantity" of water comes down from the Hood dairy each day, and "a portion" of it, incapable, as the master finds, of accurate measurement on the evidence before him, reaches the plaintiff's land and helps to form the stream and pools. "By far the greater portion of water coming down from the east onto the plaintiff's land is surface water from the hillside," but the amount of milk mixed with it from the washing of bottles and cans, though small in volume, is sufficient at times to give it "a perceptible milkish tinge." Another ditch reaches the plaintiff's premises from the south carrying surface water and sewage. Both streams are polluted as the result of cesspools and septic tanks appurtenant to neighboring houses. The ditch from the south is very much polluted and "is one of the chief causes of the condition of the pool" in the northwest corner of the plaintiff's land. The milk in the flow from the Hood plant does not cause pollution, and so far as appears from the findings none of the water entering the stream from the Hood plant does cause pollution. The master finds that in his view of the law applicable to the facts found none of the defendants has created a nuisance on the plaintiff's land.
Whatever definition of "nuisance" the master may have had in mind, his subsidiary findings, fairly construed, show that the defendant H. P. Hood & Sons, Inc., is causing water in appreciable quantity to be thrown upon the plaintiff's land in an artificial stream. If the amount which reaches the plaintiff from the Hood plant is small, it is, nevertheless, enough so that at times the milk contained in that part of it alone which has been used for washing bottles and cans "tinges" the entire flow of the stream from all sources, and this defendant in addition pours into the stream from twenty-four hundred to twenty-eight hundred gallons a day from its refrigerating plant. There is no finding that this defendant's contribution to the stream "is so small as to be inconsequential." The findings do not justify an inference to that effect. Nor do the findings support this defendant's contention that the stream is a natural stream. The water is first artificially collected in drains, pipes and ditches on the upper part of the hill and continues to flow as a stream until it enters the plaintiff's land through a ditch leading from a pipe. Although the natural drainage of surface water from the hillside would be towards the plaintiff's property, there is no suggestion in the findings that there was ever a natural stream in or near the location of the present stream. The findings in this respect differ materially from the subsidiary findings which were held in Fitzgerald v. Fortier, 292 Mass. 268, to warrant the conclusion that another stream in this same vicinity was a natural watercourse.
In the absence of any easement or other right, thus to throw or to assist in throwing an artificial stream upon land of another is a continuing trespass for which commonly a remedy may be had by injunction. Curtis v. Eastern Railroad, 14 Allen, 55; S. C. 98 Mass. 428 . Manning v. Woodlawn Cemetery Corp. 245 Mass. 250 . Belcastro v. Norris, 261 Mass. 174 . Siciliano v. Barbuto, 265 Mass. 390 , 391, 394, 395. There are in this case no findings indicative of the kind of peculiar hardship or of great disproportion between the injury done to the plaintiff and the burden of an injunction upon the defendant that has led to the denial of injunctive relief in a few exceptional cases of continuing trespass. See Gray v. Howell, 292 Mass. 400 , where the cases are collected. So far as appears the Hood company can dispose of its water in some manner without throwing any of it upon the plaintiff's land. A finding that there are no sewers in neighboring streets does not establish that other methods of disposing of the water are not available, in so far as that is material. And of course the fact that strongly polluted water also comes upon the plaintiff's land from other streams and sources does not deprive the plaintiff of his remedy for the defendant's trespass. A trespasser cannot...
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