Belcastro v. Norris, 261 Mass. 174

261 Mass. 174 | Mass. | 1927

Carroll, J.

The plaintiffs and the defendant are owners of adjoining tracts of land in Lexington. A boundary ditch separates the two tracts and from this ditch runs another ditch carrying the drainage across the plaintiffs’ land to South Branch of Vine Brook. The land of the plaintiffs and the defendant was drained for more than twenty years by a series of ditches; some of them were natural watercourses. In the year 1915 the defendant, in order to drain his land, excavated a new ditch connecting with the boundary ditch between the land of the plaintiffs and the defendant at a point opposite the ditch that crossed the plaintiffs’ land. The defendant also constructed an auxiliary ditch, designated on the plan as ditch H. The master found that although the construction of the new ditch and the auxiliary ditch tapped no new source of supply and drained no new territory, yet the excavation resulted in a greater flow of water into the ditch on the plaintiffs’ land; and that the plaintiffs’ land was damaged in part by this increased amount of water and by the increased rapidity of its flow. The plaintiffs asked for damages and relief against the defendant’s using the new ditch and the auxiliary ditch. The bill was dismissed in the Superior Court.

A landowner has the right to improve his land and is not responsible to his neighbor for any damage caused by the natural flow of surface water incident to such improvement, Gannon v. Hargadon, 10 Allen, 106; but the landowner cannot collect surface water into a ditch or artificial channel and discharge that water on his neighbor’s land. Manning v. Woodlawn Cemetery Corp. 245 Mass. 250. The plaintiffs’ land was subject to the servitude of water running through the ditch on their land from the ditches already constructed but it could not be subjected to the servitude of an additional flow of water resulting in damage to their property caused by the construction of new and auxiliary ditches. As stated by Field, J., in Jackman v. Arlington Mills, 137 Mass. 277, 283, 284, a landowner “has the right to collect the surface water and the natural drainage of his land into an artificial stream, and discharge it into a natural watercourse on his own land, if the watercourse is the natural outlet of the waters thus collected . . . provided this is done in the reasonable use of his own land, and that the discharge is not beyond the natural capacity of the watercourse, and the land of a riparian owner is not thereby overflowed, and materially injured”; and “one riparian landowner has no right to turn into a natural watercourse another stream, or surface water which does not naturally flow into it, in such quantities as to so increase the volume of water in the watercourse.” The new ditches on the defendant’s land caused destruction and damage to the plaintiffs’ crops by reason of the “increased amount of water reaching” the ditch on the plaintiffs’ land, “and the increased rapidity of its conveyance thither at the time of heavy rains.” Even if the defendant could drain his land by means of additional ditches entering the watercourse, he could not do this if it increased the flow of water to the injury of the plaintiffs. Therefore the plaintiffs are entitled to relief in equity.

The defendant argues that the plaintiffs ask for relief against the additional surface water discharged on their land; that the evidence shows that the water gathered in the new ditches was not surface water but was percolating water. We cannot agree with this contention. Assuming, but not deciding, that this question is now open to the defendant, (see Donohue v. White, 247 Mass. 479, 482,) as we construe the master’s report it was found that surface water flowed into one of the new ditches of the defendant.

While the master found that the construction of the new ditches resulted in damage to the plaintiffs’ land, the amount thereof could not be determined: in such circumstances the plaintiffs are entitled to nominal damages. Tramonte v. Colarusso, 256 Mass. 299, 301, 302, and cases cited. White v. Chapin, 12 Allen, 516, 520.

We find nothing in the acts of the plaintiffs which precludes them from relief in this suit. The rule precluding a plaintiff from invoking the aid of a court of equity by reason of his own conduct, as shown in Balcom v. Normile, 255 Mass. 186, Howe v. Chmielinski, 237 Mass. 532, and similar cases, has no application to the facts found in this case.

It follows that the decree is to be reversed and a decree entered for the plaintiffs for nominal damages, and restraining the defendant from using the new ditches referred to.

Ordered accordingly.