Nass v. Town of Duxbury
| Decision Date | 10 May 1951 |
| Parties | NASS v. TOWN OF DUXBURY. |
| Court | United States State Supreme Judicial Court of Massachusetts Supreme Court |
A. L. Lewis, Boston, (D. S. Smith, Boston, with him), for the plaintiff.
E. A. Egan, Brockton (J. J. Geogan, Whitman, with him), for the defendant.
Before QUA, C. J., and LUMMUS, SPALDING and COUNIHAN, JJ.
By this action of tort the plaintiff seeks to recover for injury to his land allegedly caused by the defendant's deflection of the current of a natural water course in such a manner as to scour out and carry away a portion of his land. The declaration originally contained two counts, but one was waived, and the case went to the jury on a count alleging the maintenance of a nuisance. There was a verdict for the plaintiff, which was taken under leave reserved, and the case is here on the defendant's exceptions to the denial of its motion for a directed verdict, to the denial of its motion to enter a verdict under leave reserved, and to the admission of certain evidence.
A summary of the evidence most favorable to the plaintiff is as follows: The plaintiff and the defendant are riparian owners on opposite sides of the Blue Fish River, a tidal estuary emptying into Duxbury Bay. Both properties are bounded on the westerly side by Washington Street, and extend easterly from that street, the plaintiff's property for a distance of some one hundred fifteen feet, and the defendant's property for a somewhat greater distance. The channel of the river, so called, which has its origin in two ponds lying approximately one quarter of a mile to the west of Washington Street, proceeds through a culvert under that street, thence easterly between and past the two properties for a distance of approximately eight hundred feet at which point it turns northward, and then again turns in an easterly direction to empty into Duxbury Bay at a point some sixteen hundred feet east of the culvert. It is agreed that the boundary line between the properties, that is, the southerly boundary of the plaintiff's property and the northerly boundary of the defendant's property, is the middle of the river's channel, extending approximately due east from the center line of the culvert.
On a portion of the town's property is a public bathing beach which may be used only at high tide. Its origin is lost in antiquity but it is reputed to have existed since the Pilgrim days. From pictures and plans which are before us the most westerly end of the beach is opposite the easterly portion or rear of the plaintiff's property. It is undisputed that the distance from the southerly end or rear of the beach to the center of the channel is approximately one hundred eighty feet. The beach extends northerly in the direction of the channel a distance of seventy feet.
The plaintiff purchased his property in 1932. It was reclaimed marshland and admittedly 'gougy.' There was no retaining wall built up from the bed of the river although there were the remains of piles which formed structural support for a wharf which once existed there. When the tides were affected by hurricanes or northeast storms, the water rose to within a foot of the plaintiff's lawn. The normal tide in the estuary was variously described as being between ten and eleven feet.
As one proceeds easterly from the culvert he would encounter, at low tide, a basin, variously referred to as a well or pond of stagnant water. In the middle of the channel bed at some point beyond the easterly boundary of the plaintiff's property and opposite the town's beach is a mound or bar visible above the water at low tide. It is a foot or two in height at his highest point. According to the testimony of one of the plaintiff's witnesses the edge of the mound was ten feet from the nearest part of the defendant's beach. The plaintiff's wife, however, testified that there were fifty feet of channel river bottom between the most southerly or lowest part of the mound and the nearest part of the town's beach. It is not clear whether these witnesses were referring to the southerly water line at high tide or at low tide or at different tides. The mound was composed of mud, sand, gravel, stone, clam shells, and mussel shells; it was a natural accretion which might well have been forming for the last forty or fifty years. Beyond the easterly part of the bar the river bottom was practically dry at low tide, and between the beach and the sound it consisted of 'mud, muck and just river bottom.' The same conditions existed on the north side of the mound. For several hundred feet both above and below the beach the bottom consisted of muck, sand, gravel, and shells.
When the plaintiff purchased his property in 1932 the current of the ebbing tide passed from the dulvert in a straight line down the middle of the stream past the plaintiff's property until the tide became so low that the mound or bar was exposed, at which time the current passed through the channels on either side of the mound. When the tide commenced to ebb, water poured through the culvert at the rate of two hundred twenty cubic feet per second with its strongest current one half hour before and one half hour after mean tide. The culvert is twenty feet wide, about fourteen or fifteen feet high, and about sixty feet long, and extends out beyond each side of the forty foot street surface.
It appears that long before 1934 and thereafter the beach had been annually refilled with sand. The amount used each year for this purpose was from eight to ten cubic yards. There is no evidence as to where on the beach this sand may have been placed and no evidence that any of it was dumped in the channel south of the mound. In 1934 or 1935 some two hundred cubic yards of sand were dumped over a portion of the beach and when spread over the 'entire beach' covered it to a depth of from one quarter to one half an inch. It does not appear whether this reference to the entire beach means the beach area as it was constituted...
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