Micucci v. White Mountain Trust Co., 6868

Decision Date28 June 1974
Docket NumberNo. 6868,6868
Citation114 N.H. 436,321 A.2d 573
CourtNew Hampshire Supreme Court

Edward J. Reichert, Littleton, by brief and orally, for plaintiffs.

George H. Keough, Berlin, by brief, for defendant.

KENISON, Chief Justice.

The main issue in this case is whether the trial court abused its discretion in finding that the defendant had unreasonably graded and paved a parcel of land adjacent to the plaintiffs' property so as to direct the flow of rain and melting snow toward their buildings and driveway, thus causing damage to them. The plaintiffs brought an action for injunctive relief and damages against the defendant. After a trial by the Court (Bois, J.) with a view, a verdict was rendered in favor of the plaintiffs in the amount of $4,400. The court denied the defendant's motion to dismiss the action during the course of trial and its motion to set aside the verdict, and reserved and transferred its exceptions thereto.

The plaintiffs are the owners of a parcel of land in Gorham, New Hampshire on which a store, a garage and a gravel driveway are located. In July and August of 1971, the defendant graded and paved a lot adjacent to the plaintiffs' property to provide parking spaces for its patrons and employees. The plaintiffs introduced considerable evidence that the paving of the adjacent lot substantially increased the amount of rain and melting snow discharged from the lot onto their property and caused damage to their buildings and driveway.

First, there was testimony from a surveyor, Steve Woodward, that the gradation of the pavement caused the diffused surface waters to collect and concentrate into one point of discharge on the plaintiffs' property and thereafter flow down their driveway into a catch basin at the bottom. The plaintiff Joseph Micucci and a neighbor Frances Lynch both testified that the quantity of water flowing over the driveway was greatly in excess of the runoff prior to the paving of the defendant's lot and caused erosion damage. Second, a contractor, John Scarinza, testified that the asphalt curbing on the border between the pavement and the plaintiffs' property was graded above the foundation level of the plaintiffs' garage and caused surface water to become trapped in-between the curbing and the foundation located several feet away. Mrs. Lynch, who had parked her car in the garage for many years, stated that the garage flooded during the spring thaw in 1972 and 1973, but had never been wet in previous seasons. Mr. Scarinza gave his expert opinion that this accumulation of water had contributed to the rotting of the sills and woodwork of the garage. Third, the plaintiff Joseph Micucci stated that the overflow from the impounded water between the curbing and the garage foundation collected behind the store and penetrated into the basement. To avoid flooding, the plaintiff testified that he was compelled to dig trenches outside the building to divert the water. Finally, there was evidence that the plaintiffs intended to convert the garage into a beauty salon, but the rotten condition of the woodwork and the flooding caused by the elevated curbing made it necessary for them to tear down the structure and build a new one with a higher foundation, thus increasing their expenditures by $3,000. Testimony was also introduced that it would cost $1,400 to redirect the drainage to avoid future water damage to the store and driveway.

The law in New Hampshire has been long established that a property owner may use, manage or control the diffused surface waters (5 R. Clark, Waters and Water Rights § 450.5 (1972)) on his land in any manner so long as it is reasonable in view of his own interest and that of all other persons thereby affected. Franklin v. Durgee, 71 N.H. 186, 187, 51 A. 911 (1901); 5 R. Powell, The Law of Real Property § 731 (p. Rohan ed. 1971, Supp.1973); Annot., 59...

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5 cases
  • Argyelan v. Haviland
    • United States
    • Indiana Supreme Court
    • June 3, 1982
    ...v. Agerbeck, (1956) 247 Minn. 432, 77 N.W.2d 539; County of Clark v. Powers, (1980) Nev., 611 P.2d 1072; Micucci v. White Mountain Trust Co., (1974) 114 N.H. 436, 321 A.2d 573; Hopler v. Morris Hills Regional Dist., (1957) 45 N.J.Super. 409, 133 A.2d 336; Pendergrast v. Aiken, (1977) 293 N.......
  • State v. Comeau
    • United States
    • New Hampshire Supreme Court
    • June 28, 1974
  • Walters v. Laverdiere
    • United States
    • Maine Superior Court
    • November 22, 2021
    ...the nature and importance of his use of the land, the foreseeability of the harm to others, and the amount of the resulting injury. Micucci, 321 A.2d at 575. See also Butler Bruno, 341 A.2d T 740; Enderson v. Kelehan, 32 N.W.2d 286 (Minn. 1948). The reasonable use doctrine is flexible enoug......
  • Weldin Farms, Inc. v. Glassman
    • United States
    • Supreme Court of Delaware
    • April 7, 1980
    ...weighed against the gravity of the harm which results from altering the flow of surface waters (see Micucci v. White Mountain Trust Co., N.H.Supr., 114 N.H. 436, 321 A.2d 573, 575 (1974); Armstrong v. Francis Corp., N.J.Supr., 20 N.J. 320, 120 A.2d 4, 10 (1956); Tucker v. Badoian, Mass.Supr......
  • Request a trial to view additional results

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