Trenz v. Town of Norwell

• Decision Date: 20 February 2007
• Docket Number: No. 06-P-254.,06-P-254.
• Citation: 861 N.E.2d 777,68 Mass. App. Ct. 271
• Parties: James W. TRENZ & another<SMALL><SUP>1</SUP></SMALL> v. TOWN OF NORWELL & another.<SMALL><SUP>2</SUP></SMALL>
• Court: Appeals Court of Massachusetts

861 N.E.2d 777

68 Mass. App. Ct. 271

James W. TRENZ & another¹ v. TOWN OF NORWELL & another.²

No. 06-P-254.

Appeals Court of Massachusetts, Plymouth.

Argued November 15, 2006.

Decided February 20, 2007.

Kathleen A. Reagan for the plaintiffs.

Robert W. Galvin, Duxbury, for town of Norwell.

John C. Webster, III, for Barbara B. Meacham.

Present: GELINAS, DREBEN, & GRAINGER, JJ.

DREBEN, J.

This appeal concerns the flow of storm water through four town culverts onto the property of the plaintiffs, James and Christine Trenz. Claiming that significant amounts of water discharge onto their land causing damage,³ the plaintiffs brought this action against the town and a neighbor, Barbara Meacham. The latter, the plaintiffs allege, among other things, installed a pipe that increases the flow of water into one of the town's culverts, the so-called "Meacham culvert." After a jury-waived trial, a judge in the Superior Court dismissed the plaintiffs' action, ruling that neither defendant had committed a trespass or had caused a nuisance. The judgment also declared that the town has a prescriptive easement to drain storm water through all four culverts onto the plaintiffs' land. Following the judgment, the plaintiffs filed a motion to amend or alter the judgment seeking, inter alia, a limitation of the easement to a width of three feet and the right to alter the location of the drainage easement over their property. The motion was denied.

The plaintiffs appeal from the rulings that neither defendant is maintaining a nuisance and that the town has prescriptive drainage easements, and from the denial of their postjudgment motion. They do not challenge the judge's determination as to trespass. Because the judge's subsidiary findings are inadequate to support his conclusions and rulings and are insufficient to disclose to us as a reviewing court the steps by which the judge reached his ultimate determinations, we vacate the judgment and remand for additional findings of fact and further proceedings consistent with this opinion.

1. Findings of the judge. We focus on the judge's findings in some detail. He divided his memorandum of decision and order into three parts—an introduction, and separate discussions of the town's culverts and the use by Barbara Meacham and her late husband, Robert, of their property. In the introduction, the judge found that the plaintiffs and Barbara Meacham are across-the-street neighbors on Mount Blue Street. He set forth the plaintiffs' claims that the town is trespassing on their property by erecting and maintaining storm water culverts under Mount Blue Street and causing storm water to flow onto their property, and that Barbara Meacham has been trespassing by diverting storm water from her property into the town culverts and across onto the plaintiffs' property. Noting that the complaint does not explicitly allege nuisance, the judge correctly considered that issue. He held that neither defendant "caused a nuisance or a substantial and unreasonable interference with the plaintiffs' use of their land." The most reliable testimony, he stated, came from the defendants' witnesses and to "the extent that evidence from the plaintiffs' witnesses conflicted with that from the defendants' witnesses, the court finds the latter to be more credible and reliable."

In the section discussing the town's culverts, the judge found that the Meacham culvert was built before 1946 and that all of the existing culverts under Mount Blue Street were built more than twenty years before the plaintiffs filed this action. He found that they were built to prevent storm water from damaging the street and were necessary to prevent serious safety hazards by preventing water and ice accumulations on the street.

The only finding as to harm to the plaintiffs was the statement, "In the more severe storms, some storm water flows from the culverts onto the plaintiffs' land." He then concluded:

"The Town's use of the culverts in the vicinity of the plaintiffs' property has at all times been reasonable. See Schleissner v. Provincetown, 27 Mass.App.Ct. 392, 394 (1989). There has been no trespass by the Town and no nuisance regarding the Trenz land. See DeSanctis v. Lynn Water and Sewer Commission, 423 Mass. 112, 116-118 (1996). The Town has not caused any substantial and unreasonable interference with the use of the Trenz property.

"The Town's corporate use of these culverts and the resulting water runoff onto the plaintiffs' land have been open, notorious, continuous and adverse for more than twenty years. The Town has acquired an easement by prescription for the storm water drainage that runs from these culverts onto the plaintiffs' land. Daley v. Swampscott, 11 Mass. App.Ct. 822, 827-828 (1981); Stone v. Perkins, 59 Mass.App. Ct. 265, 266 (2003)."

The judge then turned to the use of the Meacham property. The following is a summary of his findings. The Meacham land is on the north and uphill side of Mount Blue Street, and the Trenz land is on the south and downhill side of that street, across from the Meacham property. An old, partially overgrown cart path runs down the hill on the Meacham property toward the street and the Trenz land. Storm water flows downhill around the Meacham house and also along the cart path. Years ago, the Meachams placed under their driveway a drainage pipe which flows into the Meacham culvert.⁴ "More recently, in the mid-1990's, the Meachams installed drainage pipes around their house," in part to reduce the water flowing to a neighbor on the north side of the street. Prior to 1992, at the request of James Trenz, Robert Meacham built berms next to the cart path to reduce the amount of storm water running into the Meacham culvert. The berms "helped" and were maintained by Robert Meacham until he became ill in 1992 and died in 1993. His son maintained them for about another year and since then they have not been maintained and "they are no longer as effective as they once were." The judge then concluded:

"There has been nothing unreasonable about the Meachams' use of their property with respect to storm water drainage. The storm water naturally flows down the hill on the Meacham property and toward Mount Blue Street and the Trenz land. The natural downhill flow of storm water is made worse by the natural clay soil on both sides of the street. In severe storms, rainwater runs quickly over the ground with little absorption. The drainage pipes around the Meacham house and the pipe under their driveway are reasonable uses. These pipes do not cause an unreasonable intrusion of storm water onto the plaintiffs' land. The construction of the berms along the cart path was a neighborly good deed by Mr. Meacham. Reasonable use of their land by the Meachams does not require them to restore these berms or to alter their existing use of their land. There has been no trespass by the Meachams, and they have not created a nuisance. The Meachams have not caused any substantial and unreasonable interference with the use of the Trenz property."

The judge then entered an order dismissing the plaintiffs' claims and declared that the town "has an easement by prescription for drainage of storm water from Mount Blue Street and from all existing Town culverts under Mount Blue Street onto the plaintiffs' land."

2. Nuisance. We first discuss the judge's decision as to nuisance without focusing on his decision that the town has a prescriptive easement to drain storm water through its culverts. The difficulty with the judge's findings is that we cannot determine from his ultimate finding—that there was no substantial and unreasonable interference with the use of the plaintiffs' land—whether he applied the correct legal standard for determining the existence of a nuisance or whether he disbelieved the extensive evidence, including photographs, of increased water flowing onto the plaintiffs' property in the 1990's.

"In Massachusetts, liability for a private nuisance caused by the flow of surface waters from a landowner's property to that of an adjoining landowner depends on whether the landowner is making a reasonable use of his land. See Tucker v. Badoian, 376 Mass. 907, 916-917, 384 N.E.2d 1195 (1978) (Kaplan, J., concurring) (announcing intention to replace rigid and anarchic `common enemy' rule with reasonable use doctrine)." DeSanctis v. Lynn Water & Sewer Commn., 423 Mass. at 116, 666 N.E.2d 1292.

That the culverts were necessary to prevent water and ice accumulation on the street was certainly supported by the evidence. "Public safety requires the drainage of surface waters from highways. However, it is unreasonable to impose on private individuals a disproportionate share of the cost of this public benefit." Triangle Center, Inc. v. Department of Pub. Works, 386 Mass. 858, 864, 438 N.E.2d 798 (1982).

"Reasonableness is a question of fact for the [fact finder] whose decision is based on consideration of all the relevant circumstances including the amount of harm caused, the foreseeability of the harm which results, the purpose or motive with which the possessor acted, and all other relevant matter." DeSanctis v. Lynn Water & Sewer Commn., 423 Mass. at 116, 666 N.E.2d 1292. The fact finder must also balance the "utility of the possessor's use of [the] land" with "the harm which results from [the] alteration of the flow of surface waters." Ibid.

"Under the Tucker standard, the fact finder must view the landowner's activity on his land with an eye toward the effect of that activity on the flow of surface waters." von Henneberg v. Generazio, 403 Mass. 519, 523, 531 N.E.2d 563 (1988). What is reasonable does not depend "solely on the character of the property owner's action. Instead, it focuses on the results of the action, the consequent interference with another's use and enjoyment of his land." DeSanctis v. Lynn Water & Sewer Commn., 423 Mass. at 117, 666 N.E.2d 1292, citing Butler v. Bruno, 115 R.I. 264, 273, ...