Manning v. Woodlawn Cemetery Corp.

245 Mass. 250 | Mass. | 1923

Carroll, J.

This suit in equity, to restrain the defendant from discharging surface water upon the land of the plaintiff, was heard in the Superior Court. A decree was entered ordering an injunction to issue, restraining the plaintiff from allowing or causing surface water from its land to be collected in artificial streams or channels, so that it flows into or discharges on land of the plaintiff.

A landowner has no right to collect surface water into artificial channels and discharge it on the land of another. Jackman v. Arlington Mills, 137 Mass. 277. Fitzpatrick v. Welch, 174 Mass. 486. Mahoney v. Barrows, 240 Mass. 378. The judge found that the plaintiff’s land had been used as a farm. Approximately five acres had not been used for such purposes since 1909. Before 1896 the five acres above referred to were dry and highly cultivated. At about this time the defendant began collecting its surface water in ditches or drains on the cemetery land. Some of these artificial channels emptied into a pond two hundred feet from the cemetery gate, opposite the plaintiff’s property, and the overflow came upon the plaintiff’s land through an underground ditch constructed by the defendant, and through a culvert under Fuller Street, on to the lot now owned by the defendant and thence to the plaintiff’s land. As a result of this accumulation and diversion of surface water the plaintiff has been unable to cultivate these five acres of land since 1909.

The evidence was conflicting. It could have been found on the testimony of the plaintiff that she had been unable to cultivate a part of her land because of a diversion of surface water collected upon the defendant’s land and its discharge upon her land by means of artificial channels; and that the defendant continued in this course until the time of the hearing. There was evidence to support the judge’s finding, and it must be sustained. Skehill v. Abbott, 184 Mass. 145.

The plaintiff brought an action of tort against the defendant in December, 1915, to recover damages to her land caused by the discharge of surface water thereon by the defendant. Judgment was entered in her favor in the sum of $2,000. Manning v. Woodlawn Cemetery Corp. 239 Mass. 5. Against the exception of the defendant, the declaration, amended answer, and the opinion of the Supreme Judicial Court were admitted in evidence. The record was offered by the plaintiff as tending to show that the defendant had no prescriptive right to flow the plaintiff’s land. The defendant admitted that the plaintiff and the former owner of her land had “ made various protests ” and contended that the record was not admissible for the purpose claimed. The judge in reaching the conclusion that the acts of the defendant in causing water to be accumulated and sent upon the plaintiff’s land, constituted a continuing nuisance for which she was entitled to relief by way of injunction, did not consider the testimony excepted to, as he was “ of the opinion that the plaintiff failed to introduce enough of the record to enable the court to decide whether any of the issues in this suit were decided in that action.” Even if the evidence were inadmissible, which we do not decide, the defendant was not prejudiced by the action of the judge. If there were error in admitting the evidence it was corrected; and in coming to a conclusion the judge did not consider the testimony introduced concerning the former trial between these parties. By disregarding the evidence, it was in fact excluded. In Newman v. Newman, 211 Mass. 508, 509, where at a hearing before a judge sitting without a jury evidence, admitted against the exception of the libellee, was subsequently disregarded by the judge in making his finding, it was said: “ The record recites that the ‘ court unaffected by the evidence excepted to, relative to the previous conduct of the libellee, found as a fact that the allegations of the libel were sustained.’ We understand this to be in effect a statement that in coming to a conclusion the judge entirely disregarded the evidence to which the libellee had objected, or in other words, that he as judge had instructed himself as a finder of facts to disregard it, and obeying the instruction did disregard it. That being so, it does not appear that the libellee was harmed even if the evidence was wrongly admitted.” The defendant in the case at bar, therefore, was not prejudiced by the judge’s ruling, and the decree must be affirmed with costs.

So ordered.