Nealley v. Town of Bradford
| Decision Date | 06 January 1888 |
| Parties | NEALLEY v. INHABITANTS OF BRADFORD et al. |
| Court | United States State Supreme Judicial Court of Massachusetts Supreme Court |
Henry Carter and B.B. Jones, for plaintiff.
Notwithstanding the erroneous findings of the master on various subsidiary questions, as objected and excepted to by the plaintiff there should be judgment for plaintiff, on the report of the master, as a matter of law on the facts found by him. Perley v. Chandler, 6 Mass. 453. See Lawrence v Fairhaven, 5 Gray, 110; Parker v. Lowell, 11 Gray, 353; Emery v. Lowell, 104 Mass. 13; Manning v. Lowell, 130 Mass. 21. In the case which has been quoted and relied upon by defendants, the case of Rowe v. Bridge Co., 21 Pick. 344, the decision was based expressly on the ground of a special grant to a company. A continual nuisance of ditch and water has been created through and in front of the plaintiff's estate to her serious damage, for which she has received no compensation, and for which she has now no remedy except in this suit, and which must be continuous until this court shall cause it to be abated. In view of the decisions of this court, cited supra, on what authority can it be contended that towns and their surveyors have a right to obstruct and divert natural water-courses? Not only has this power never been given to surveyors, but it has by strong implication been by statute forbidden. Pub.St. c. 52, § 12. As to the remedy for obstructing and diverting a natural water-course. It has been contended that the remedy in this case was under Pub.St. c. 52, § 15, and not under Id. § 12. We cannot find any case where any such claim was ever sustained. It may be safely affirmed that no case can be cited in this commonwealth where a statute remedy has been applied to natural water-courses; but only to those water-courses described in Pub.St. c. 52, § 12. In Elder v. Bemis, 2 Metc. 599, the action was for causing the water-course, "occasioned by the wash of the highway, to be so conveyed by the side of the highway as to incommode the plaintiff in the use of his barn." It was decided that plaintiff had his remedy under Rev.St. c. 25, § 5, which was the same as Pub.St. c. 52, § 12. In the case of Flagg v. Worcester, 13 Gray, 601, the question as to what damage must be recovered under the statute is fully discussed. The court clearly limits it to the damage caused by diversion of "water accumulating upon the surface of the way." See, also, Perry v. Worcester, 6 Gray, 544. As to consent or license. It was but a parol license, and was revoked a whole year before the obstruction and diversion complained of in this suit. That any pretended parol license could be revoked, and was revoked in this case, plaintiff cites the following cases: Mosee v. Copeland, 2 Gray, 302; Owen v. Field, 12 Allen, 457; Cook v. Stearns, 11 Mass. 533; Stevens v. Stevens, 11 Metc. 251. The fact that the ditch had been dug and money expended did not affect the question at all. The license claimed in this case, if given by deed, would have created a new easement through plaintiff's estate. The stopping up of the new ditch, and turning the water into its old channel, by the plaintiff, whether done with or without the consent of Day, was a most thorough revocation of any former pretended license. This is the plaintiff's case on the law applicable to the findings of the master: (1) That towns and surveyors have no right to obstruct and divert natural water-courses. (2) No statute has contemplated any such obstruction or diversion by towns or surveyors, and no remedy has been provided by any statute, and the only remedy is by suit or bill in equity. (3) The consent or license which the master finds that the plaintiff gave to the road commissioners was but a parol license concerning an easement in real estate, and might therefore be revoked; and that it was revoked long before the acts of these defendants complained of in this suit. (4) A natural water-course having been obstructed and diverted, through and in front of plaintiff's premises, was to create a continuous nuisance of ditch and water, to the serious injury of plaintiff, it should be abated by order of this court. This case is a striking illustration of the wisdom of the principle of law about easements in real estate,--that they shall not be irrevocably established by the loose understanding of parties from mere conversations, or by any parol license.
Ira A. Abbott and Francis H. Pearl, for defendants.
It is well-settled practice that the report of a master on questions of fact shall have the weight and conclusiveness of a verdict of a jury, and his findings are not to be set aside or modified without clear proof of error on his part. Richards v. Todd, 127 Mass. 167; Trow v. Berry, 113 Mass. 139, and cases cited. The case at bar calls for the strict application of this rule. The bill of complaint and decree in Inhabitants of Bradford v. Gage, on which much stress is laid by the plaintiff, have the weight of evidence only. 1 Greenl.Ev. § 212; Beatty v. Randall, 5 Allen, 441; Gilbert v. Thompson, 9 Cush. 348; Burlen v. Shannon, 99 Mass. 200. The master has found that there was no natural water-course over the plaintiff's land south of the highway, and that the water which sometimes flowed there was surface water. His report states that it followed a slight depression in the surface, had no banks nor channel, did not break the turf, and found its way through interstices in the stone wall on the south side of the highway, there being no definite opening for it through the wall. These are not the characteristics of a natural water-course. Gould, Wat. §§ 263, 264, and cases cited. Luther v. Winnisimmet Co., 9 Cush. 171; Jackman v. Arlington Mills, 137 Mass. 277; Lessard v. Sram, 62 Wis. 112, 22 N.W. 284. The finding of the master that the diversion of the water, under the circumstances, and in the manner reported by him, was lawful, is correct. (1) If the water flowing into the highway from the south is surface water, as found by the master, the defendants had not merely the right to divert, but to obstruct, the flow, to keep the water off the highway by any means. Flagg v. Worcester, 13 Gray, 601; Turner v. Dartmouth, 13 Allen, 291; Emery v. Lowell, 104 Mass. 13, 16. (2) If there was a natural water-course, as the master has found, extending from the southerly limit of the highway, the proper officers of the town had the right to direct it as they did, and the sole remedy of the plaintiff, if she thereby suffered injury, was under Pub.St. c. 52, §§ 15, 16. This proposition is equally true if the water-course extended through the plaintiff's land, as claimed in her behalf. Rowe v. Bridge Co., 21 Pick. 344, 348; Mellen v. Railroad Corp., 4 Gray, 301, 303; Lawrence v. Fairhaven, 5 Gray, 110, 116; Johnson v. Dunn, 134 Mass. 522; Helena v. Thompson, 29 Ark. 569; Suffield v. Hathaway, 44 Conn. 521. In making such a diversion, the defendants were bound to provide free course for the water, so that it should not be pent up, nor set back upon the plaintiff's land, to her injury; and this the master has found that they did, and that the water is taken away from her premises more rapidly and freely by the new course than by the old. The case at bar is therefore not within the authority of Perley v. Chandler, 6 Mass. 453, which was for stopping up a water-course without providing any new way for the water. The plaintiff, for the injury to her premises caused by the increased length of open and covered drain in front of her land, with water at times running through it, has the statute remedy, which is ample, and the only fair and proper one. The master has found as a fact that the plaintiff, through her husband, consented to and authorized the change made by the road commissioners in advance. This consent was irrevocable after the performance of the work by them. White v. County Com'rs, 2 Cush. 361, 363. The plaintiff is estopped by entering her sink-drain into the drain made by the commissioners, and by acceptance of $35 under the circumstances found by the master, from objecting to the lawfulness of the acts of the town officers. Seymour v. Carter, 2 Metc. 520; Haskell v. New Bedford, 108 Mass. 208, 214; Clement v. Durgin, 5 Greenl. 9. The placing of obstructions in the new drain, and the reopening of the old culvert, by the plaintiff's husband in 1883, were unauthorized and unlawful acts, and could not affect the existing rights of the parties. The work done the following year under the direction of the town officers was merely a restoration of the status quo as to the additional amount of covered drain put in, which was an advantage to the plaintiff's premises; but, even if it be regarded as a new diversion of the water-course, it stands on the same ground with the original work of the road commissioners.
OPINION
This is a bill for the abatement of a nuisance, praying that the defendants may be enjoined against diverting the water which flowed, through a culvert across the highway, onto land of the defendant Gage, and conveying it in a ditch in the highway in front of the plaintiff's land, and for damages. The defendants are the town of Bradford, the highway surveyor of the town, who opened the ditch and filled the culvert, and the owner of the land upon which water flowed after passing through the culvert. The case was referred to a master, who reported the facts, his findings, and the evidence. The case was heard by a single justice upon exceptions to the master's report, and, by agreement upon the report as it should stand after any change that might be made on the exceptions, and comes up on appeal by the plaintiff from a decree dismissing the bill. We have not found it necessary to consider all the questions presented, and...
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