423 Mass. 112 | Mass. | 1996
The plaintiff, Louis R. DeSanctis, appeals from the judgment of the Superior Court denying him recovery on his claims that the defendant, the Lynn water and sewer commission (LWSC), caused or permitted water to flow onto his land over an extended period of time, causing his property to become inundated with water, and altering the physical characteristics of the land permanently. The plaintiff asserted claims in trespass, nuisance, and takings, seeking both injunc
The plaintiff is the fee owner of 14.7 acres of land located on the easterly side of Route 1 in Saugus. He leased this land in 1954 and purchased it in 1966. Approximately 6.3 acres of this land are protected wetlands and therefore unsuitable for development.
The parties are in sharp disagreement as to the age and cause of the wetland conditions on the plaintiffs property. The plaintiff said that when he purchased the property in 1966 it was not inundated with water and he was not aware it was considered a wetland. At trial, the plaintiff produced evidence that the dam at the wellhole weeped or caused small
The defendants defended on the theory that their actions with regard to the collection and dispersion of surface water benefited the plaintiff by retarding the flow of water onto his land rather than causing water to flow onto the land. The LWSC argued that without the wellhole, more water would naturally flow onto the plaintiff’s property.
The jurors concluded that LWSC was negligent and was 20% responsible for the damage and or adverse changes to the plaintiffs property and the plaintiff was 80% responsible for the changes and or damage. They determined that the damage was not repairable and reduced the value of the plaintiff’s property by $143,000. Following the verdict, the plaintiff moved for entry of judgment in the amount of $715,000, plus interest and costs and renewed his motion for an injunction against further spillage of water. The plaintiff argued, based on an ex parte telephone call from a juror, that the jurors intended to award the plaintiff $143,000 as 20% of the total damages. He argued that the jurors’ findings compel the legal conclusion that the LWSC has committed a nuisance and that, because nuisance Lability is not subject to comparative negligence set-off, he should recover the full amount of his damages. The plaintiff’s posttrial motion was denied and he appeals. We conclude that, because the jurors determined that LWSC did not use its land unreasonably, the plaintiff has not sustained his burden of proof under a private nuisance theory. We further conclude that G. L. c. 231, § 85, bars the plaintiffs recovery under a negligent trespass theory. We affirm the judgment.
A. Interference with natural drainage of surface waters. The plaintiff contends that he was irreparably harmed by the flow of surface water from the defendant’s property onto his land.
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 (1978) (Kaplan, J., concurring) (announcing intention to replace rigid and anarchic “common enemy” rule with reasonable use doctrine). See also yon Henneberg v. Generazio, 403 Mass. 519, 522 (1988) (recognizing that since Tucker, supra, reasonable use doctrine is law of Massachusetts with regard to claims of private nuisance resulting from the flow of surface water); Triangle Ctr., Inc. v. Department of Pub. Works, 386 Mass. 858, 863 (1982) (applying reasonable use doctrine to public landowners).
Under the reasonable use doctrine, “each possessor is legally privileged to make a reasonable use of his land, even though the flow of surface waters is altered thereby and causes some harm to others, but incurs liability when his harmful interference with the flow of surface waters is unreasonable.” Armstrong v. Francis Corp., 20 N.J. 320, 327 (1956). Reasonableness is a question of fact for the jurors 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. Tucker, supra at 917-918 n.2. The jurors also must consider whether the utility of the possessor’s use of his land outweighs the gravity of the harm which results from his alteration of the flow of surface waters. Armstrong, supra at 330. See Tucker, supra.
Contrary to the plaintiffs contention, a determination by the jurors that LWSC negligently caused water to flow onto the plaintiffs land and adversely change or otherwise damage the plaintiffs land is not sufficient to support liability for a
Here the jurors, properly charged in fine with Tucker v. Badoian, supra,
B. Negligence. The jurors’ failure to find unreasonable use while precluding recovery under a private nuisance theory does not preclude the plaintiff’s recovery under an independent cause of action for negligent trespass. See Tarzia v. Ringham, 35 Mass. App. Ct. 506, 508-510 (1993) (distinguishing negligence and private nuisance). A plaintiff may recover under the theory of negligent trespass if the jurors determine that the defendant was negligent and that the defendant’s negligent entry onto the plaintiff’s land caused the plaintiff harm. See Restatement (Second) of Torts § 165 (1965); Cannon v. Sears, Roebuck & Co., 374 Mass. 739, 742 (1978) (“A cause of action based on negligence requires that both negligence and harm be shown, with a causal connection between these two elements”). Absent comparative negligence on the part of the plaintiff, he would be entitled, given the jurors’ findings of negligence and causation, to recovery under the theory of negligent trespass.
The jurors were not specifically asked whether the plaintiff was comparatively negligent.
Because the jurors concluded that the plaintiff bore more than 50% of the responsibility for his damage, G. L. c. 231, § 85, the comparative negligence statute bars the plaintiff from recovering any damages from LWSC under a negligence cause of action. See Morgan v. Lalumiere, supra. The trial judge, therefore, acted properly in denying the plaintiff recovery.
Judgment affirmed.
he city of Lynn was dismissed as a defendant prior to the case’s going to the jury.
At trial, the plaintiffs wetland specialist opined that over 50% of the plaintiff’s land was wetland and that, even if all sources of water to the wetland were removed immediately, the area would remain a wetland for thirty to sixty years. The wetland currently is static. The specialist had no knowledge that would indicate that the size of the wetland had changed appreciably between his first observation in 1985 and later observations in 1991 and 1992.
LWSC maintains that it first became aware of a problem with flooding on the plaintiff's land in 1985 when the dam at the wellhole was breached, that is, the well did not overflow, but that there was a crack or a hole in the well through which the water flowed. The LWSC reacted promptly to the plaintiff's complaint and immediately alleviated the problem. Later that year, the LWSC prepared an internal capital improvement program to rehabilitate and improve the water system in Lynn. A further survey, conducted by. the United States Environmental Protection Agency and what is now the Massachusetts Department of Environmental Protection, recommended covering and securing the wellhole. The wellhole remains uncovered and unsecured due to resistance from the Saugus conservation commission which has expressed concern about the wellhole’s historic significance and protection of the wetlands.
The soil covering virtually all of the plaintiff’s land is designated by soil conservation services as “muck,” suggesting decades or centuries of soil saturation.
In 1984, the plaintiff authorized a contractor to fill a portion of his land with debris from a construction site in East Boston. The plaintiff was
Surface waters are waters from rain, melting snow, springs, or seepage, or floods that lie or flow on the surface of the earth and naturally spread over the ground but do not form a part of a natural watercourse or lake. Restatement (Second) of Torts § 846 (1979). This court did not distinguish
As a consequence, we need not decide whether the principles of comparative negligence apply to claims of private nuisance.
The plaintiff did not request that the jurors be charged that they could find a private nuisance based on LWSC’s negligence alone and did not object to the jury charge given.
The jurors were instructed specifically that the categories of negligence, intentional conduct, and unreasonable use were not mutually exclusive and that they should make a separate determination as to each theory.
Because the jury verdict was favorable to LWSC, we do not reach the argument that it was entitled to a directed verdict.
LWSC, when informed at the eleventh hour that the judge sua sponte had decided to instruct the jury on negligence, should have objected or asked for an instruction on comparative negligence. However, given that negligence was not alleged in the complaint nor in the plaintiffs request for jury instructions, and causation and responsibility (issues relevant to comparative negligence) were hotly contested at trial, and the judge did instruct the jury that the defendants bore the burden of proof on their
Contrary to the plaintiffs suggestion, we are not precluded from considering the violation of the criminal statute in assessing whether the plaintiff was negligent. General Laws c. 231, § 85, merely provides that “the violation of [a] statute, ordinance or regulation shall not as a matter of