307 Mass. 292 | Mass. | 1940
This is a bill to enjoin the defendants from causing water to flow upon the plaintiff’s land and for damages.
At the argument the plaintiff stated that he no longer pressed the suit against the defendants town of Auburn
Without repeating the findings of the master in unnecessary detail, the following summary will indicate the situation and conditions out of which this suit arises: The plaintiff owns about ten acres of land on Southbridge Street partly in Worcester and partly in Auburn. This tract is located at the westerly and lower end of a long hill or slope constituting a water shed with an area of about three quarters of a square mile which naturally drains toward the plaintiff’s land. The plaintiff’s land, or at least a part of it, has always been damp and wet. For five or six years beginning in 1924 or 1925 the plaintiff filled it by allowing it to be used as a dump. Nevertheless for “a good part of the time” since 1931 pools of water have formed there, including one large stagnant pool in the northwest corner. The defendant H. P. Hood & Sons, Inc., operates a dairy upon or near the top of the hill about a third of a mile to the east of the plaintiff’s land. Water used in this plant both for refrigeration and for washing bottles and cans flows into a drain and thence in a continuous stream through a system of pipes and ditches across lands of intervening owners and emerges from a twenty-four inch pipe a short distance from the plaintiff’s land, whence it flows in a ditch upon and over the plaintiff’s land. The stream is also fed from springs on the hillside, from a number of “blind drains” which run toward it, and from some other sources. The Hood refrigerating system alone produces a flow of from twenty-four hundred to twenty-eight hundred gallons a day, in addition to the water used for washing. Thus “a
Whatever definition of “nuisance” the master may have had in mind, his subsidiary findings, fairly construed, show that the defendant H. P. Hood & Sons, Inc., is causing water in appreciable quantity to be thrown upon the plaintiff’s land in an artificial stream. If the amount which reaches the plaintiff from the Hood plant is small, it is, nevertheless, enough so that at times the milk contained in that part of it alone which has been used for washing bottles and cans “tinges” the entire flow of the stream from all sources, and this defendant in addition pours into the stream from twenty-four hundred to twenty-eight hundred gallons a day from its refrigerating plant. There is no finding that this defendant’s contribution to the stream “is so small as to be inconsequential.” The findings do not justify an inference to that effect. Nor do the findings support this defendant’s contention that the stream is a natural stream. The water is first artificially collected in drains,
In the absence of any easement or other right, thus to throw or to assist in throwing an artificial stream upon land of another is a continuing trespass for which commonly a remedy may be had by injunction. Curtis v. Eastern Railroad, 14 Allen, 55; S. C. 98 Mass. 428. Manning v. Woodlawn Cemetery Corp. 245 Mass. 250. Belcastro v. Norris, 261 Mass. 174. Siciliano v. Barbuto, 265 Mass. 390, 391, 394, 395. There are in this case no findings indicative of the kind of peculiar hardship or of great disproportion between the injury done to the plaintiff and the burden of an injunction upon the defendant that has led to the denial of injunctive relief in a few exceptional cases of continuing trespass. See Gray v. Howell, 292 Mass. 400, where the cases are collected. So far as appears the Hood company can dispose of its water in some manner without throwing any of it upon the plaintiff’s land. A finding that there are no sewers in neighboring streets does not establish that other methods of disposing of the water are not available, in so far as that is material. And of course the fact that strongly polluted water also comes upon the plaintiff’s land from other streams and sources does not deprive the plaintiff of his remedy for the defendant’s trespass. A trespasser cannot defend on the ground that trespass or pollution by another causes greater damage than his own trespass. Parker v. American Woolen Co. 195 Mass. 591, 603. The case is distinguishable from Downing v. Elliott, 182 Mass. 28, where injury to the plaintiff’s ice caused by smoke and impurities in the air common to the neighborhood was held
The defendant is not relieved of responsibility for its acts by the fact that other persons and other sources contribute to the flow of the same stream into which it places its water. Nor is the causal connection between the defendant’s act and the trespass upon the plaintiff’s land broken by the fact that one Goodacre, an intervening owner, has built a catch basin in the line of the flow “so as to better take care of the water flowing in there.” Whether this was done to prevent the water from saturating Goodacre’s land or for some other purpose, it remains true that some of the water put in by the defendant at the top of the artificial stream, after flowing through the catch basin, comes out at the bottom upon the plaintiff’s land and would not come out at the bottom if the defendant did not put it in at the top. The impounding of a volume of water by Goodacre in his catch basin is an immaterial circumstance as between the plaintiff and the Hood company. The Hood company’s act and its consequences and the relation between them are the same for the purposes of this case as if no catch basin had been installed. See Leahy v. Standard Oil Co. of New York, 224 Mass. 352; Wallace v. Ludwig, 292 Mass. 251, 254, 255; Am. Law Inst. Restatement: Torts, §§ 879, 881. Whether Goodacre has become liable to the plaintiff is not before us.
What has been said brings us to the consideration of affirmative defences urged by the Hood company. First, it is contended, that in 1888 one Perry owned the entire hillside, and that he had already put in a drain from what is now the Hood land in the location of the present drain, and that water from it even then ran upon what is now the plaintiff’s land, so that when Perry conveyed the Hood land he conveyed with it an implied easement to his grantee
The defendant makes out a better case for its next contention that it has acquired an easement of some kind by prescription. This suit was brought October 9, 1937. Twenty years before that; in 1917, a predecessor in title of the Hood company was operating the dairy now operated by that defendant and was using the drain and stream in substantially their present location for purposes of the dairy. This use had begun in 1907 and had increased up to 1917. It has openly continued to the time of the bringing of this suit and, generally speaking, seems not to have been less at any time since 1917 than it was in that year, but on the contrary it kept increasing until 1934, after which it fell off somewhat. And in the absence of explanation an inference will commonly be drawn that a use which has been open and continuous has also been adverse. White v. Chapin, 12 Allen, 516, 519. True v. Field, 269 Mass. 524, 528-529. Thus the defendant H. P. Hood & Sons, Inc.,
But where a party justifies his act under an easement by prescription the burden is upon him to prove not only that an easement exists but also that it is broad enough to cover the thing that he has done. Swensen v. Marino, 306 Mass. 582. In the present case the Hood company has acquired no right to throw substantially more water upon the plaintiff’s premises than its predecessor in title placed there in 1917. There may be circumstances under which the extent of a right claimed and acquired by prescription is not accurately measured by the amount of previous actual interference with the servient owner. See, for example, Baldwin v. Boston & Maine Railroad, 181 Mass. 166. But it is clear that ordinarily one who begins with a trickle of water at the beginning of the twenty years cannot acquire the right to flood his neighbor’s land, with a brook at the end of that time, even though the flow remains in the same location. Middlesex Co. v. Lowell, 149 Mass. 509, 511. Shaughnessey v. Leary, 162 Mass. 108. Smith v. Gloucester, 201 Mass. 329, 337. Tinker v. Bessel, 213 Mass. 74, 76. Prentice v. Geiger, 74 N. Y. 341, 347. Dernier v. Rutland Railway, Light & Power Co. 94 Vt. 187, 193. Cranberry Creek Drainage District v. Elm Lake Cranberry Co. 170 Wis. 362, 366. Gould on Waters, (3d ed.) § 342. See Cotton v. Pocasset Manuf. Co. 13 Met. 429.
This principle is applicable in this case. The amount of water put into the drain from the dairy has increased greatly since 1917, and especially since 1931, when the Hood company took title to the dairy. The amount required for the washing of bottles and cans is “in direct proportion to the volume of business being done.” The master finds what that volume was in 1917. It increased to four times as much by 1934. In 1938 it was from two to three times as much. Besides this increase in the water used for washing there is an increase due to a change in refrigerating methods.
Laches is also pleaded. The master has not found loches but submits that issue to the court upon the subsidiary facts found. The burden of proving this defence is upon the defendant. Alvord v. Bicknell, 280 Mass. 567, 571. Mere delay in bringing suit not extending beyond the period fixed by the statute of limitations is not enough unless accompanied by other circumstances making it inequitable to grant relief. No such circumstances have been shown. There is nothing to show that the building by the Hood company of an addition to its plant between 1931 and 1934 or the purchase by it of new vehicles for milk distribution was in reliance upon the use of the drain. It does not appear of how great importance this drain is in the operation
There was no error in overruling the exceptions to the master’s report and in confirming the report. Some of the exceptions are based upon the failure of the master to find particular facts as desired. The evidence is not reported. Others have become immaterial. The failure of the master to find money damages against H. P. Hood & Sons, Inc., is explained by his finding that the volume of water which actually reaches the plaintiff’s land from the Hood dairy is "incapable of measurement with anything approaching accuracy.” This is not inconsistent with other findings which we think show that a quantity sufficiently substantial to entitle the plaintiff to equitable relief does reach the plaintiff's land, but the finding of inability to measure the amount coming from this source, together with the findings as to the various other sources from which water comes upon the plaintiff's land, including surface water naturally accumulating there, indicates that any finding of damages in money would rest upon no safer foundation than guesswork and conjecture. Under these circumstances the plain
The result is that the interlocutory decree overruling the exceptions to the master’s report and confirming the report is affirmed; that the final decree is affirmed in so far as it dismisses the bill as to the defendants town of Auburn and Cross, with a single bill of costs to them; and that the final decree is reversed as to the defendant H. P. Hood & Sons, Inc., and a new final decree is to be entered permanently enjoining that defendant from putting into the drain leading from its dairy and described in the master’s report a quantity of water per day in excess of that put into the drain per day in 1917 when that defendant’s predecessor in title was doing a business amounting to twenty-five hundred quarts of milk a day, with costs to the plaintiff as against the defendant H. P. Hood & Sons, Inc.
Ordered accordingly.