Tucker v. Badoian

Decision Date27 December 1978
Citation384 N.E.2d 1195,376 Mass. 907
PartiesRaymond J. TUCKER et al. 1 v. V. George BADOIAN (and a companion case 2 ).
CourtUnited States State Supreme Judicial Court of Massachusetts Supreme Court

Frank J. McGee, Marshfield (Kevin P. Phillips, Marshfield, with him), for plaintiffs.

William K. Mone, Brockton, for defendants.

Before HENNESSEY, C. J., and QUIRICO, BRAUCHER, KAPLAN, WILKINS, LIACOS, and ABRAMS, JJ.

QUIRICO, Justice.

The plaintiffs in these two actions seek to recover for damages that they claim were caused to their land and the house thereon by the alleged negligence of the defendants. The plaintiffs contend that the defendants negligently made certain physical changes to their own land, which abuts that of the plaintiffs, thereby causing large quantities of water to collect on the plaintiffs' lot and in the cellar of their house. The jury returned a verdict for the plaintiffs in the amount of $60,000 in each of the two actions. The defendants moved for a new trial, and, after a hearing thereon, the judge ordered a remittitur of $35,000. He allowed the verdict in each case to stand in the reduced amount of $25,000, and the plaintiffs assented. See Mass.R.Civ.P. 59(a), 365 Mass. 827 (1974).

The defendants appealed from the judgments thus entered for the plaintiffs. After hearing the parties, the Appeals Court held that the trial judge had erred in denying the motions of the defendant in each case for a directed verdict and ordered that the judgments for the plaintiffs be reversed. Tucker v. Badoian, 5 Mass.App. --- A, 370 N.E.2d 717 (1977). The plaintiffs then filed applications for further appellate review in these two cases, and we allowed them. See G.L. c. 211A, § 11; Mass. R.A. P. 27.1, 367 Mass. 919 (1975). Three other actions brought by these same plaintiffs against other defendants and relating to the same property have been disposed of as indicated in the margin below and are not involved in the appeals of the two remaining actions. 3

We hold, as did the Appeals Court, that in each of the two cases now before us, it was error for the judge to deny the defendant's motion for directed verdict, that the judgments for the plaintiffs should be reversed, and that judgments should be entered for the defendants.

There is no dispute over the facts leading to this litigation. The plaintiffs purchased a parcel of land, together with a single family house situated thereon, in October of 1969 from Ronald Tocco, 4 one of the original defendants who is not before us on this appeal. This parcel, designated "lot 23" during the proceedings below, lies in Marshfield near the Daniel Webster Cemetery. It is bounded on the east by Winslow Cemetery Road, on the north by land owned by Morningside Realty Trust, on the west by an old cranberry bog, and on the south by other land not involved in the case.

Before the spring of 1969, while it was yet unimproved, lot 23 was perpetually muddy and marsh-like as a result of then-existing drainage conditions. One or more artificial ponds to the east of Winslow Cemetery Road drained through a man-made ditch and culvert under Winslow Cemetery Road into a shallow channel that crossed lot 23 and debouched into a small pond or "pothole" (pothole) at the northwest corner of the lot. The pothole lay partly on lot 23 and partly on Morningside's abutting land. The only evidence concerning the origin of the culvert, channel, and pothole suggests that all three were remnants of an artificial system for flooding the cranberry bogs to the west of lot 23. In particular, there was no evidence suggesting that the channel and pothole formed part of a natural watercourse, and we shall henceforth refer to the channel as "the ditch." In addition to being the locus of the ditch-pothole system, lot 23 was also the low point of Winslow Cemetery Road. Because of the absence of storm drains in the immediate vicinity, water would frequently collect in the road next to lot 23 during heavy storms, and neighbors kept open a ditch (whose exact location was not specified during the trial) to drain this accumulation away.

During the spring and summer of 1969, Tocco built a single family house on lot 23. He first filled in the ditch and part of the pothole. He then excavated holes for a cellar and a septic tank. The cellar hole was located atop the fill in the former path of the ditch. The septic tank hole was located slightly south and uphill from the filled in ditch. During the construction period, the cellar and septic tank holes, and later the cellar and septic tank themselves, were partly filled with water. In late August of 1969, after the house was completed, a realtor showed lot 23 to the plaintiffs. The plaintiffs purchased the lot and house from Tocco on October 10, 1969, and moved in the next day.

During September of 1969, or between the time the plaintiffs first saw lot 23 and the time they purchased it, Morningside took certain actions that form the basis of these two lawsuits. Morningside levelled off several piles of fill standing on its land, and it brought a quantity of fill onto its land, levelling the fill off for a distance of about 150 feet westerly from Winslow Cemetery Road. The apparent purpose of these filling and grading operations was to prepare a strip of Morningside's land immediately adjacent to lot 23 for a "proposed road" to connect the cranberry bog with Winslow Cemetery Road. During the course of performing the operations, Morningside may have placed fill on lot 23 next to the house (but not, apparently, atop the former ditch or in the pothole) and in a part of the pothole lying on its own land.

Within a week after taking possession in mid-October, the plaintiffs began experiencing a severe drainage problem. For a period of several months, water poured into the cellar from several places, including the point where the sewage pipe left the cellar. The basement and house smelled of raw sewage. Water that sometimes reached a depth exceeding three feet collected in the backyard to the west of the house. 5 To alleviate these problems, Tocco installed drains and pumps, filled in portions of the backyard, and dug one or two ditches across the proposed road on Morningside's land. By the end of spring in 1970, Tocco thus succeeded in curing the surface water problem. Notwithstanding this partial success, foul-smelling water continued to find its way into the basement at least until the trial of this case in January of 1975.

The plaintiffs adduced a variety of expert testimony during the trial. As we are passing on the judge's alleged error in denying the defendants' motions for directed verdicts, we summarize this testimony in the light most favorable to the plaintiffs. Alholm v. Wareham, 371 Mass. ---, --- - --- B, 358 N.E.2d 788 [376 Mass. 912] (1976). The flooding of the plaintiffs' basement was caused, at least in part, by the circumstance that the water table was higher than the floor of the basement. In addition, the high water table prevented proper effluent filtration in the leaching field of the septic system, with the result that raw sewage mixed with ground water and flowed into the cellar. The grading and filling operations on Morningside's land might have contributed to raising the water table under the plaintiffs' land and thereby contributed to the damage the plaintiffs concededly suffered. In addition, the water table would tend to follow the level of water in the pothole, and the jury could have found that Morningside raised that level by filling in a portion of the pothole on its own land.

1. The single issue of law before us is whether, on the evidence summarized above, the judge should have directed verdicts for the defendants. This court first considered the respective rights and obligations of landowners with respect to surface drainage in Luther v. Winnisimmet Co., 9 Cush. 171 (1851). In that case we approved, as being "well adapted to the case," jury instructions to the effect that one landowner is free to stop surface water from entering his land despite harm to his neighbor. Id. at 174-175. Since 1851, we have frequently held not only that a landowner may freely defend his land from encroaching surface water but also that he may with impunity grade and improve his land for a lawful purpose even though he thereby diverts surface water onto his neighbor's land. Canavan & Manning, Inc. v. Freedman, 353 Mass. 762, 232 N.E.2d 680 (1968) (embankment). Kuklinska v. Maplewood Homes, Inc., 336 Mass. 489, 492, 146 N.E.2d 523 (1957) (grading for housing development). Maddock v. Springfield, 281 Mass. 103, 105, 183 N.E. 148 (1932) (sidewalk and fill). Gannon v. Hargadon, 10 Allen 106, 109-110 (1865) (blocking cart ruts). We have not distinguished between surface and ground water. Kennison v. Inhabitants of Beverly, 146 Mass. 467, 469, 16 N.E. 278 (1888). Cf. Belkus v. Brockton, 282 Mass. 285, 288, 184 N.E. 812 (1933) (measure of damages same whether caused by ground or surface water); Wilson v. New Bedford, 108 Mass. 261, 266 (1871) (no difference in character of injury).

The law of this Commonwealth was stated as follows in the Gannon case: "The right of an owner of land to occupy and improve it in such manner and for such purposes as he may see fit, either by changing the surface or the erection of buildings or other structures thereon, is not restricted or modified by the fact that his own land is so situated with reference to that of adjoining owners that an alteration in the mode of its improvement or occupation in any portion of it will cause water, which may accumulate thereon by rains and snows falling on its surface or flowing on to it over the surface of adjacent lots, either to stand in unusual quantities on other adjacent lands, or pass into and over the same in greater quantities or in other directions than they were accustomed to flow." 10 Allen at 109. These same principles have governed liability for...

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