Van Szyman v. Town of Auburn

• Decision Date: 08 February 1963
• Citation: 188 N.E.2d 453,345 Mass. 444
• Court: United States State Supreme Judicial Court of Massachusetts Supreme Court
• Parties: John VAN SZYMAN et al. v. TOWN OF AUBURN et al.

Page 453

188 N.E.2d 453

345 Mass. 444

John VAN SZYMAN et al. v. TOWN OF AUBURN et al.

Supreme Judicial Court of Massachusetts, Worcester.

Argued Nov. 7, 1962.

Decided Feb. 8, 1963.

Richard J. Sarapas, Worcester, for plaintiffs.

Edward P. Healy, Town Counsel, for defendant Town of Auburn.

Walter J. Griffin, Worcester, for defendants Hedlund.

Before WILKINS, C. J., and SPALDING, WHITTEMORE, CUTTER, KIRK and SPIEGEL, JJ.

WHITTEMORE, Justice.

The plaintiffs in this bill in equity for a declaratory decree have appealed from the interlocutory decree which confirmed the master's report and overruled exceptions thereto and from the final decree which, inter alia, adjudged that the town of Auburn owns three easements of drainage into the plaintiffs' land and that Walter H. and Phyllis L. Hedlund, owners of adjoining land, have an easement of flow in one of the drains, ordered the plaintiffs to unplug the drains and ditches, enjoined further obstruction, and awarded damages of $500 to the Hedlunds.

The selectmen of the town, its highway surveyor, Raynard E. Whitcher (misdescribed in the bill as highway superintendent), ¹ the building inspector, and a mortgagee of the Hedlund land are also parties defendant.

The approximate locations of the three lines of drainage are shown on the sketch herewith. In the Van Szyman parcel there is swampy land and a pond. The natural flow is northerly and easterly from the higher surrounding land onto this parcel.

NOTE: OPINION CONTAINS TABLE OR OTHER DATA THAT IS NOT VIEWABLE

At relevant times the Van Szyman parcel, White Terrace, lot 8 and other lots on White Terrace and on Chestnut Avenue were owned by Edward A. and Annie M. White. Land abutting Chestnut Avenue on the southeast was, at such times, owned by Mary J. L. Pond Snyder.

Before the acceptance of Chestnut Avenue the abutting owners (the Whites and Snyder) owned that half of it adjacent to their other land.

Chestnut Avenue was accepted by the town on May 26, 1952. White Terrace was accepted sometime in 1954. There is no finding of any act of taking on behalf of the town after the acceptance of the ways by the town at town meetings. See G.L. c. 82, §§ 23, 24; c. 79, §§ 1, 3.

The Van Szymans bought their parcel from the Whites on March 7, 1957. They knew of none of the drains prior to the purchase. The male plaintiff (Van Szyman) discovered the Hedlund drain and drain No. 1 in the spring of 1957. In the summer of that year he found 'a network of drains' in White Terrace connected with the Hedlund drain. In the summer of 1959, he came upon the trunk drain connected with drain No. 1 and also discovered drain No. 2.

In 1957, after discovering drain No. 1 and the Hedlund drain, Van Szyman consulted his lawyer and the selectmen and talked with Mrs. White. He met with the selectmen and Whitcher, and was shown a plan with the drains on it, and told that the town maintained them and that he was not to block them. He also talked with Walter H. Hedlund (Hedlund).

In December, 1959, Van Szyman received a permit to build a house to be located between the Hedlund line and the pond. He began work in April, 1960, found that water from the Hedlund drain pipe filled the trenches being dug, and, after consulting his lawyer, caused the drain to be plugged at the end of the pipe. Ensuing action included a letter from the selectmen 'to void' the building permit. Thereafter, early in May, 1960, Van Szyman blocked drains Nos. 1 and 2. Shortly thereafter Whitcher, after consulting with the selectmen, sent his crew onto the premises to unblock these drains. After this work was done he entered the premises to inspect it. The bill of complaint was entered July 6, 1960.

1. Drain No. 1. Chestnut Avenue was built by Snyder and Edward A. White (White) in 1951 and 1952, with costs shared between them. White built five or six houses on his lots on Chestnut Avenue. Before the way was accepted by the town it was inspected by the planning board, and Snyder was required to and did install drains at Wellman and June streets, the trunk line of drainage, and drain No. 1. The Whites were not consulted about the installing of the drain, gave no written or oral permission at any time, and never granted an easement to Snyder or to the town. They had knowledge of the existence of the drain in 1954 and made no complaint.

The master found that so far as it is a question of fact neither the town nor Snyder acquired an easement by implication or necessity and the drain is in violation of the rights of the Van Szymans. This finding is right and the decree establishing the easement is in error.

The acceptance of the way was of importance to the Whites as well as to Snyder. But the Whites did nothing to bind their land. There was no act of dedication by them. See Horn v. Crest Hill Homes, Inc., 340 Mass. 362, 365, 164 N.E.2d 150. Conceivably it could be found that Snyder purported to act for the Whites in building the drain and in a dedication of it to the town as a means of securing the acceptance of the way. The findings, however, do not permit a conclusion that if there was such a purported dedication it was ratified. The failure to object after knowledge of the drain imports at the highest no more than a parol license. There was no conveyance in connection with which an easement by implication could arise. Chelsea Yacht Club v. Mystic River Bridge Authority, 330 Mass. 566, 568, 116 N.E.2d 153. Even an express parol license to use land may be revoked at any time. Morse v. Copeland, 2 Gray 302, 305; Home Inv. Co. v. Iovieno, 243 Mass. 121, 125, 137 N.E. 382; Mason v. Albert, 243 Mass. 433, 437, 137 N.E. 661. See Baseball Publishing Co. v. Bruton, 302 Mass. 54, 58, 18 N.E.2d 362, 119 A.L.R. 1518. There is, therefore, no basis for a claim of estoppel or laches. Home Inv. Co. case, supra; Scioscia v. Iovieno, 318 Mass. 601, 604, 63 N.E.2d 898. Compare Levin v. Rose, 302 Mass. 378, 19 N.E.2d 297. The conveyance in 1957 to the Van Szymans revoked the license, if any. Scioscia case, supra, 318 Mass. p. 603, 63 N.E.2d p. 899.

There is no finding or basis for the conclusion that there was a taking of the fee or any easement in the land comprising the way in connection with which an easement of drainage by implication might arise. There is nothing to show that the layout of the law included the drainage easement. Indeed, the facts found do not show any basis for inferring that there was an order by the selectmen (within thirty days after the town meeting which accepted the way [G.L. c. 82, § 23]) for the purpose of taking an easement, or the fee, in the land comprising the way (G.L. c. 82, § 24; c. 79, § 1), or a recording of such an order at the registry of deeds within thirty days thereafter (G.L. c. 79, § 3). ² Watertown v. Dana, 255 Mass. 67, 70-72, 150 N.E. 860, 44 A.L.R. 1374; Radway v. Selectmen of Dennis, 266 Mass. 329, 333-335, 165 N.E. 410; Walker v. Medford, 272 Mass. 161, 172 N.E. 248; Malinoski v. D. S. McGrath, Inc., 283 Mass. 1, 6-8, 186 N.E. 225; Loriol v. Keene, 343 Mass. 358, 360, 362, 179 N.E.2d 223.

The Van Szymans are not entitled to recover damages in respect of drain No. 1. The master found that they sustained $400 damage from the maintenance and operation of this drain. No ground is shown for assessing this damage against the town. Such ground does not exist in the finding that the town has maintained, repaired, and improved both Chestnut Avenue and White Terrace since their acceptance, including in the work 'the repair, maintenance and improvement of drains and catch basins' therein. This finding is qualified by the accompanying finding that '[t]his work has been done under the direction of * * * Whitcher, highway surveyor.' The town is not liable for the conduct of this public officer in the performance of his duties. G.L. v. 41, §§ 1, 62; c. 84, § 7. ³ Shea v. Lexington, 290 Mass. 361, 367-371, 195 N.E. 494; Trum v. Paxton, 329 Mass. 434, 438, 109 N.E.2d 116, and cases cited. Fulton v. Belmont, 333 Mass. 64, 67-68, 127 N.E.2d 569. Compare Ryder v. Lexington, 303 Mass. 281, 285-290, 21 N.E.2d 382; Wishnewsky v. Saugus, 325 Mass. 191, 195, 89 N.E.2d 783. We see no ground for holding the town liable for what the highway surveyor did in Chestnut Avenue whether it was, or was not, a public way.

There is no finding of any specific action by Whitcher in respect of drain No. 1 prior to May, 1960, when Van Szyman plugged it and Whitcher, shortly thereafter, unplugged it. We conclude that Whitcher gave routine attention to the drain and its catch basins. We hold that such a public officer in thus performing his duties does not act at the risk that what appear to be town drains in existing ways have not in law been established as such. There is no implication that any personal act of his prior to unplugging the drain invaded the Van Szyman land or increased the burden thereon beyond that originally imposed by Snyder. See Trum case, supra, 329 Mass. 438-440, 109 N.E.2d 118-119; Fulgoni v. Johnston, 302 Mass. 421, 423, 19 N.E.2d 542.

There is no finding of damage from the trespass to unplug the drain nor any basis for concluding that it was more than nominal. In the circumstances, including Van Szyman's sudden blocking of this long establish drain, justice does not require that an award of nominal damages be made.

2. Drain No. 2. Sometime during the year 1955, the defendant Whitcher installed drain No. 2 without the knowledge or permission of the Whites. The master found that so far as it was a question of fact the town acquired no easement by grant, necessity or implication. There is no showing of a taking. The town contends that this installation was authorized by G.L. c. 83, § 4. ⁴ There is nothing in this even if Chestnut Avenue is a public way. The statutory authority, certainly in respect of permanent installations, is to construct drains 'through any land' in which the municipality has taken or purchased, or is taking or...