Manning v. Woodlawn Cemetery Corp.

• Decision Date: 23 May 1924
• Citation: 144 N.E. 99,249 Mass. 281
• Parties: MANNING v. WOODLAWN CEMETERY CORPORATION. WOODLAWN CEMETERY CORPORATION v. MANNING.
• Court: United States State Supreme Judicial Court of Massachusetts Supreme Court

249 Mass. 281

144 N.E. 99

MANNING

v.WOODLAWN CEMETERY CORPORATION.

WOODLAWN CEMETERY CORPORATION

v.MANNING.

Supreme Judicial Court of Massachusetts, Middlesex.

May 23, 1924.

Report and Case Reserved from Superior Court, Middlesex County; Geo. A. Sanderson, Judge.

Suit in equity by Mary A. Manning against the Woodlawn Cemetery Corporation, in which defendant appealed from several decrees and orders; and suit by said corporation against said Manning to vacate final decree in first case. On report and reservation. Orders and decrees in first case affirmed, and bill dismissed in second case.D. F. Carpenter, of Boston, for Woodlawn Cemetery Corporation.

W. J. Barry, of Boston, for Manning.

BRALEY, J.

The plaintiff in the first case, after recovering judgment in an action at law for damages caused by the wrongful discharge of accumulated surface water upon her land by the defendant (Manning v. Woodlawn Cemetery Corporation, 239 Mass. 59,131 N. E. 287), brought suit in equity to enjoin the defendant from continuing the nuisance. The trial court granted the relief prayed, and the defendant appealed to this court which affirmed the decree. Manning v. Woodlawn Cemetery Corporation, 245 Mass. 250, 139 N. E. 830. But before entry of decree, after rescript, the defendant petitioned for a stay of proceedings, and also moved for leave to file supplemental, and amendatory answers. The petition and motion were denied, and the defendant appealed. A final decree thereupon was entered pursuant to the rescript, from which the defendant also appealed. It then appealed from an order dismissing the several appeals.

[1] But, these appeals having been expressly waived, we come to the second case, which is a bill of review to vacate the final decree in the first case. In is not brought to correct errors of law apparent on the record, but goes upon the ground, that new facts have been discovered, or a new situation has developed affecting the rights of the parties which were not available in defense when the case was tried, and the decree entered. Clapp v. Thaxter, 7 Gray, 384, 386. Permission to file the bill, which was given, rested in the sound discretion of the trial court, and although subject to revision by this court, it does not appear to have been unjustifiably exercised. Elliott v. Balcom, 11 Gray, 286;Mulrey v. Carberry, 204 Mass. 378, 90 N. E. 576; Dan. Ch. Pl. & Pr. 6th Am. Ed. s. 1577.

[2] The defendant contends that the bill was not seasonably filed, because G. L. c. 250, § 22, provides that a writ of review of a judgment entered upon default in a civil action shall be filed within one year after the petitioner first had notice of the judgment, otherwise within one year after the judgment was rendered, and, the bill of review not having been filed until July 2, 1923, more than a year had elapsed since December 23, 1921, the date of the entry of the final decree from which the defendant appealed. But it is unnecessary to decide whether in the case at bar the limitation should be applied by analogy. See Evans v. Bacon, 99 Mass. 213, 215. The appeal having vacated the decree originally entered, the decree after rescript of July 2, 1923, was the final decree, and the petition with the accompanying bill was seasonably filed.

[3] The general grounds for review, because of error of law in denying the petition for stay of proceedings, and the motion for leave to file a supplemental answer, are disposed of by the waiver of the appeals to which we have referred. It is also settled that a bill of review for error of law apparent on the face of the record will not lie after the final decree has been affirmed on appeal. Nashua & Lowell Railroad v. Boston & Lowell Railroad, 169 Mass. 157, 162, 47 N. E. 606.

The special allegations are newly discovered matters, and proposed legislation relating to the drainage of the waters which accumulate and remain on the lands of the parties and other lands in the vicinity, which were not set up or considered at the trial of the suit, but are specially referred to in the present bill. The defendant's farm and the plaintiff's cemetery are in the city of Everett, separated by Fuller street, a public way. The land from a high point in the cemetery slopes from south to north across Fuller street and the defendant's farm, and recedes to a low point at a brook or ditch in Malden, running easterly a few rods north of the farm. The brook is a part of the Malden surface drainage system, and is the outlet of a marsh of about one thousand acres about a mile in length lying between the farm on the south and Holy Cross Cemetery on the north. It frequently overflows if there are freshets ‘and excessive tides.’ The marsh or swamp ‘is a health nuisance and the land in and about the swamp is unfavorably affected in value by the presence of stagnant water.’ The lowest part of Fuller street and of the land of the cemetery is at a point between the cemetery and the farm. The summit of Fuller street towards Washington avenue, as shown by the plan in the record, is 19 feet above this point at a distance of 1,213 feet to the east, and the summit towards Lynn street is 20 feet above this point at the distance of 1,680 feet to the west. The city of Everett at this point has built a common ditch or culvert, replacing an ancient culvert, at the northerly end of which the cemetery owns a traingle of land jutting into the farm, and prior to the litigation it had done some grading on this slope above the farm. It constructed paths with a system of drains and catch basins for the disposal of surface water, which waters were discharged through the culvert onto the triangle, and passed from thence to the farm, flowing eventually into the brook or ditch. It is alleged that the defendant, the plaintiff in the action of tort, recovered and was paid damages for five acres of her land thus flowed, as if it had been destroyed, and that no greater flowage has since existed.

[4][5] The defendant demurred to the bill, and, the demurrer having been overruled, the question whether the ruling was right and the bill can be maintained is before us on the report of the judge. While a bill of review grounded on new matter can only be filed by leave of court and the relevancy of the matters relied on is ordinarily well considered before leave is given, yet the defendant may demur, with the same effect as if the bill of review had been an original bill for relief. Cooke v. Banfield, 3 Swanst. 607; Griggs v. Gear, 3 Gilman (Ill.) 2. The demurrer admits all the material allegations. We consider them in the order presented by the pleadings.

[6] The allegations in paragraphs 5 and 6 and the first sentence of paragraph 7 in substance are recitals of the issues raised in the action of tort, and the extent and measure of damages therein recovered, with a reference to the bringing of the suit in equity. The second sentence of paragraph 7 is that laches was not set up in the answer of the corporation owing to ignorance of some or all the facts, and was only discovered since the decree after rescript, and that the plaintiff should have the advantage of the defense. The title of the defendant however has not been divested, and she has the right to enjoy and use her property unmolested by the tortious acts of the plaintiff. It is not pointed out how laches can be a defense to a continuing trespass or nuisance as determined by the decree which was affirmed by this court.

[7][8] Paragraph 8 alleges that the plaintiff in good faith has sought to buy from the defendant the portion of her land affected by the discharge of water from the plaintiff's premises, or to purchase sufficient land for the construction of a drain. But the defendant has declined to...