Manning v. Woodlawn Cemetery Corp.

• Decision Date: 25 May 1923
• Parties: MANNING v. WOODLAWN CEMETERY CORPORATION.
• Court: United States State Supreme Judicial Court of Massachusetts Supreme Court

245 Mass. 250

139 N.E. 830

MANNING

v.WOODLAWN CEMETERY CORPORATION.

Supreme Judicial Court of Massachusetts, Middlesex.

May 25, 1923.

Appeal from Superior Court, Middlesex County; George A. Sanderson, Judge.

Suit for injunction by Mary A. Manning against the Woodlawn Cemetery Corporation. From a decree granting an injunction, defendant appeals. Affirmed.

See, also, 239 Mass. 5, 131 N. E. 287.

Gaston, Snow, Saltonstall & Hunt and Rupert L. Mapplebeck, all of Boston, for appellant.

William J. Barry, of Boston, for appellee.

CARROLL, J.

This suit in equity, to restrain the respondent from discharging surface water upon the land of the petitioner, was heard in the superior court. A decree was entered ordering an injunction to issue, restraining the respondent from allowing or causing surface water from its land to be collected in artificial streams or channels, so that it flows into or discharges on land of the petitioner.

A landowner has no right to collect surface water into artificial channels and discharge it on the land of another. Jackman v. Arlington Mills, 137 Mass. 277;Fitzpatrick v. Welch, 174 Mass. 486, 55 N. E. 178,48 L. R. A. 278;Mahoney v. Barrows, 240 Mass. 378, 134 N. E. 246. The judge found that the petitioner's land had been used as a farm. Approximately 5 acres had not been used for such purpose since 1909. Before 1896 the 5 acres above referred to were dry and highly cultivated. At about this time the respondent began collecting its surface water in ditches or drains on the cemetery land. Some of the artificial channels emptied into a pond 200 feet from the cemetery gate, opposite the petitioner's property, and the overflow came upon the petitioner's land through an underground ditch constructed by the respondent, and through a culvert under Fuller street, onto the lot now owned by the respondent, and thence to the petitioner's land. As a result of this accumulation and diversion of surface water the petitioner's has been unable to culcivate these 5 acres of land since 1909.

The evidence was conflicting, but the judge could have found on the testimony of the petitioner that she had been unable to cultivate a part of her land because of a diversion of surface water collected upon the respondent's land and its discharge upon her land by means of artificial channels; and that the respondent continued in this course until the time of the hearing. There was evidence to support the judge's finding, and it must be sustained. Skehill v. Abbott, 184 Mass. 145, 68 N. E. 37.

The petitioner brought an action of tort against the respondent in December, 1915, to recover damages to her land caused by the discharge of surface water thereon by the respondent. Judgment was entered in her favor in the sum of $2,000. Manning v. Woodlawn Cemetery Corp., 239 Mass. 5, 131 N. E. 287. Against the exception of the respondent, the declaration, amended answer, and the opinion of the Supreme Judicial Court were admitted in evidence. The record was offered by the petitioner as tending to show that the...