Ryder v. Town of Lexington

• Decision Date: 29 May 1939
• Citation: 303 Mass. 281,21 N.E.2d 382
• Court: United States State Supreme Judicial Court of Massachusetts Supreme Court
• Parties: CHARLES W. RYDER v. TOWN OF LEXINGTON. CHARLES W. RYDER & another, trustees, v. SAME.

303 Mass. 281

21 N.E.2d 382

CHARLES W. RYDER v. TOWN OF LEXINGTON. CHARLES W. RYDER & another, trustees, v. SAME.

Supreme Judicial Court of Massachusetts, Middlesex.

May 29, 1939

November 15, 1938.

Present: FIELD, C.

J., DONAHUE LUMMUS, DOLAN, & RONAN, JJ.

Municipal Corporations, Liability for tort, Drainage. Drain. Watercourse. Actionable Tort. Damages, For tort. Evidence Opinion: expert; Of value. Practice, Civil, Exceptions whether error harmful. Prescription.

Upon a finding warranted by the evidence, that a culvert conveying waters of a brook under a highway and secondary drains connecting with the brook above the culvert were constructed by selectmen acting as agents of the town and not as public officers, the town properly was held liable for damage caused to a landowner above the culvert by the backing of waters of the brook due to the culvert being insufficient to carry away the flow of the brook thus increased by the drains.

It would have been no defence to an action against a town for damage to a landowner caused by a culvert under a way being insufficient to carry away waters of a brook improperly increased by a system of drains constructed by the town's agents, that the culvert was under a county way and was owned and maintained by the county; moreover, in this case a finding was warranted that the locus of the culvert was a town way.

Damages in an action for injury caused to an upper riparian owner by flooding of his land through an improper act of the defendant where the cause of the flooding might be removed by the defendant, properly were limited to the actual injury sustained to the date of the writ, and the correct measure thereof was the diminution in the value of the use of the land during that period caused by the tortious act.

No prejudicial error was shown in admission in evidence by an auditor of opinion testimony of the owner of land as to the diminution in the value of its use during a certain period although he erroneously in part based his opinion on market value of the land, the auditor having ruled that diminution of market value was not an element of damages and it not appearing that there was not evidence sufficient to enable him to determine the diminution of value of use without having recourse to any evidence of market value.

It was proper to refuse to find that in 1931 a town had gained a prescriptive right to flood land of an upper riparian owner on a brook where it appeared that the flooding, which began in 1926, was due to the fact that a culvert, built in 1873, had become insufficient by 1926 to carry away the waters of the brook because of increase thereof due to a system of drains built by the town between 1906 and 1926.

Damages for injury to land due to unlawful flooding from a nonpermanent cause in a period before the plaintiff acquired his title could not be recovered in the absence of an assignment to the plaintiff from the holder of the title during that period.

TWO ACTIONS OF TORT. Writs in the Superior Court dated August 11, 1931. The actions were heard together by Walsh, J., who found for the plaintiff in the first action in the sum of $285.75 and for the plaintiffs in the second action in the sum of $12,080.24.

S. R. Wrightington, for the defendant.

R. B. Owen, (J.

F. Morgan with him,) for the plaintiffs.

RONAN, J. These are two actions of tort to recover for damage to several parcels of land, belonging to the plaintiffs, caused by the overflowing of Vine Brook, a natural watercourse, which flows through the southerly central area of the defendant town through a culvert beneath Massachusetts Avenue, and thence into the Shawsheen River. The plaintiffs allege that the flooding of their property was due to the negligence of the town in constructing and maintaining the culvert under Massachusetts Avenue which retards the flow of the brook, and to the action of the town in overloading the brook by diverting into it, by means of a system of drains, a great amount of surface and ground water. The cases were heard by an auditor, and were then heard upon his report, together with other evidence, in the Superior Court. There were findings for the plaintiffs in both cases.

The plaintiffs own several parcels of land adjacent to or near the brook, and portions of some of these parcels have at times been used for agricultural purposes. Their lands prior to 1926 were flooded at times, but they were used to a considerable extent for raising vegetables and hay. After 1928 it was impossible on account of the wetness of the land to utilize it for these or other useful purposes. Vine Brook has two branches that join about five hundred to six hundred feet south of Massachusetts Avenue, which is the principal street in the defendant town. The watershed of this brook is between eight hundred and nine hundred acres and the plaintiffs own a little less than two hundred acres. Their lands are located along the lower or southern branch of the brook. The drainage of the area has engaged the attention of the town for more than sixty years. Improvements have been made from time to time, but there have been periods when there was a return of the earlier conditions and the lowlands, especially along the southern branch of Vine Brook, have been flooded. None of the drains carried domestic sewerage or industrial waste.

Following action taken at several town meetings, St. 1873, c. 214, was enacted, which authorized the town to drain the meadows, to make excavations, to lay drains and to take the necessary land. The power conferred on the town was to be exercised by the selectmen. The expenses incurred by the alteration of culverts under public ways were to be borne by the town, and assessments were to be made upon the lands benefited by the drainage. The town voted to accept the act, and appropriated $500 for building or enlarging the culverts under four streets. Evidently some of the work was actually completed, for assessments were laid and collected. This court held that the act had not been duly accepted by the town, Locke v. Selectmen of Lexington, 122 Mass. 290 , and the Legislature passed St. 1878, c. 85, authorizing the town to raise money for the payment of the expenses incurred in draining the meadows and for all damages and liabilities thereby sustained. The previous votes of the town and the expenditures theretofore made were ratified. A subsequent town meeting authorized the reimbursement to those who had paid the assessments.

The auditor reports that "There was no direct evidence concerning when or by whom the culvert which is now beneath Massachusetts Avenue was constructed. Both parties agreed that the culvert was constructed during the progress of the drainage work as authorized by the Statute of 1873." The judge in granting the plaintiffs' first request found that this culvert was constructed by the defendant acting through its agents.

The plaintiffs allege that the brook has been overloaded by the discharge therein of eight drains. In 1906 a drain was built in Massachusetts Avenue for the purpose of caring for the street surface water and water from roofs and cellars. Beginning in 1915 sanitary sewers were laid in certain streets, including Massachusetts Avenue. Subdrains were constructed under most of these sewers and they discharged into Vine Brook below the culvert. There was evidence that two hundred thousand gallons of water were daily discharged from these subdrains into the brook. The other seven drains were constructed during the period from 1918 to 1931. All of them took care of surface water upon the streets. One also drained a park and this was connected with another, which drained a playground. One of these drains was also used to drain a parcel of private property, while another drained a school yard. The principal purpose, however, of all, excepting the park and playground drains, was to drain the surface water from streets, although some of them also drained property in their vicinity. Some carried underground water together with surface water. They were ordinary, tile drains, having calked joints (with the exception of the one located in the playground) and were well constructed in accordance with good engineering practice. With the exception of the one located in the park, they discharged into Vine Brook water that had accumulated within the watershed of this brook. The park drain served an area of five acres within the watershed of North Brook, but there was evidence that the drain laid in Massachusetts Avenue discharged into North Brook the surface drainage of an area of two and three tenths acres within the natural watershed of Vine Brook. The drains carried more water from this watershed into Vine Brook than would naturally reach this brook because they conveyed water some of which would ordinarily have been absorbed by vegetation and evaporation and would never have reached the brook if the drains had not been laid. Moreover, less water was being lost by evaporation as the area of hardened street surfaces increased.

There was no defect in the original plan of these sewers, but they discharged water into Vine Brook more rapidly and in greater quantities within given periods of time than would have occurred if the drains had not been installed. No adequate provision was made in the channel of the brook to care for such rapid and increased flow. The culvert at Massachusetts Avenue was insufficient to permit the free unobstructed flow of such a rapid increase in the quantity of water. The result of the discharge was a backing up of the water and the consequent flooding of the lands of the plaintiffs; and thus raising the height of the underground water table and ponding water on the plaintiffs' lands for longer periods of time than would...