Miller v. Darby

• Decision Date: 27 June 1957
• Citation: 336 Mass. 243,143 N.E.2d 816
• Parties: Charlotte MILLER v. Merwyn K. DARBY et al.
• Court: United States State Supreme Judicial Court of Massachusetts Supreme Court

Page 816

143 N.E.2d 816

336 Mass. 243

Charlotte MILLER v. Merwyn K. DARBY et al.

Supreme Judicial Court of Massachusetts, Essex.

Argued May 8, 1957.

Decided June 27, 1957.

Max Nicholson, Lawrence, for plaintiff.

Frederic S. O'Brien, Lawrence, for defendants.

Before WILKINS, C. J., and RONAN, WILLIAMS, WHITTEMORE and CUTTER, JJ.

RONAN, Justice.

This is an appeal from a final decree dismissing a bill seeking an injunction restraining the defendants from discharging water upon the plaintiff's premises and for damages. A master's report was confirmed.

The plaintiff is the owner of one undivided half interest in a parcel of land, triangular in form, bounded westerly by Dascomb Road, southeasterly by Bannister Road, and northerly by land of one Murray. The dwelling erected upon this parcel is about one hundred years old and has been occupied by the plaintiff for more than sixty years. There is a cellar with a dirt floor under a part of the house. Bannister Road separates Darby's premises from the plaintiff's land. This lot was conveyed to Darby in 1949 by the defendant Hall, his father-in-law. It is bounded on the south by Clark Road, westerly by Bannister Road, and northerly and easterly by other land of Hall. Clark Road runs easterly from the junction of Dascomb Road and Bannister Road. A house was constructed on a small hill or knoll upon the Darby lot. From this knoll the land sloped downward to the south and east and from Clark Road there was a slope downward to the north and east. Between these slopes was a broad grassy area. Along Bannister Road the land sloped to the east to this grassy area. During rainy periods or times of melting snow this grassy area became wet and marshy and water ran down the slopes and also collected and stood in places although there never was any well-defined stream or watercourse running through this area. The area would dry up during a dry spell, yet most of the time it was wet and marshy and the water which ran through it was surface water only.

In 1934 and possibly for some years before, a cellar drain was installed and maintained by the plaintiff. It ran from her cellar under Bannister Road and discharged upon what is now the Darby lot. This privilege rested entirely upon the oral permission granted by Hall who was then the owner of the Darby lot. She never acquired anything higher than a license whose enjoyment was revocable at the will of the owner of the Hall land. She knew that fill was deposited on the Darby lot which might block the outlet to the drain and was given an opportunity to extend the drain beyond the area to be filled, but she declined to do so. She has no complaint if the fill did in fact block the outlet. In any event, she finally blocked the drain when she learned that it was conducting water into the cellar. Any interference by the defendants with the discharge of the drain drops out of the case. Nelson v. American Telephone & Telegraph Co., 270 Mass. 471, 170 N.E. 416; Baseball Publishing Co. v. Bruton, 302 Mass. 54, 56, 18 N.E.2d 362, 119 A.L.R. 1518, and cases cited; Willett v. Pilotte, 329 Mass. 610, 612, 109 N.E.2d 840; Sturnick v. Watson, Mass, 142 N.E.2d 896.

For more than twenty years prior to 1949, and since, there has been a culvert ten or twelve inches in diameter running under Bannister Road from the plaintiff's land and terminating upon what is now the Darby land. The master reports that there was no evidence when or by whom it was laid. Its purpose was to drain the plaintiff's parcel of land. Hall knew, for more than twenty years prior to the commencement of the filling of the lot he conveyed to Darby, of the existence and purpose of the culvert. It discharged very little water, if any. It is a plain inference from the master's report that the plaintiff had a prescriptive right to have the culvert maintained. White v. Chapin, 12 Allen 516, 520; Truc v. Field, 269 Mass. 524, 528-529, 169 N.E. 428; Tucker v. Poch, 321 Mass. 321, 324, 73 N.E.2d 595; Foot v. Bauman, 333 Mass. 214, 129 N.E.2d 916; Davenport v. Town of Danvers, Mass., 142 N.E.2d 753.

In filling the Darby lot a narrow strip along Bannister Road was left unfilled, thus creating a kind of trench near the bottom of which the end of the culvert was left exposed. Since the last work was done in the way of filling on the Darby lot, which was about the middle of July, 1955, the plaintiff has had serious trouble from the flooding of her cellar. On one occasion the water rose to eleven inches in the cellar. She has plugged up the cellar drain to prevent water from flowing into her cellar. She has laid a pipe connecting the cellar to a small pond to the north of her house. She has expended $181.24 for pumps, pump hire and labor in freeing the cellar from water. The master reports that unless other measures are taken further flooding is likely.

It is plain inference from the master's report that we are dealing here with the diversion of surface water by one landowner to the detriment of an adjacent owner. One landowner has a right to improve his land and to put it to any lawful use, and where there is no watercourse or where there is no direct grant or prescription or agreement the proprietor of the lower land has no right to regulate the use of the upper land by his neighbor. 'The obstruction of surface water or an alteration in the flow of it affords no cause of action in behalf of a person who may suffer loss or detriment therefrom against one who does no act inconsistent with the due exercise of dominion over his own soil.' Gannon v. Hargadon, 10 Allen 106, 109-110; Maddock v. Springfield, 281 Mass. 103, 104-105, 183 N.E. 148; Deyo v. Athol Housing Authority, 335 Mass.----, 140 N.E.2d 393. But a landowner has no right to collect surface water into an artificial channel or into a reservoir and then release the captive waters by a culvert or other artificial means upon the land of his neighbor. Bates v. Westborough, 151 Mass. 174, 23 N.E. 1070, 7 L.R.A. 156; Smith v....