321 Mass. 725 | Mass. | 1947
By this bill in equity the plaintiffs seek to restrain the defendant
In 1928 the watercourse between the pools was from three to five feet wide and about two feet deep. At the time of the hearing before the master it was about a foot in width and two feet in depth, and the banks were heavily overgrown with vegetation and bushes. Since 1926, during the winter and spring seasons and at times of heavy rainfall, the cellar of the dwelling on the plaintiffs’ land has been flooded to a depth of one and one half to two feet. After the plaintiffs acquired the property the cellar floor of the dwelling has been wholly or partially covered with water from March to May of each year. If the watercourse were excavated to a depth of two feet below its present level it “would alleviate conditions now existing during the winter and early spring seasons,” but the channel so excavated, unless cared for constantly, would fill up from natural causes within three or four years.
The ultimate findings of the master were that the filling
The decree dismissing the bill was right.
The denial of the plaintiffs’ motion to recommit the master’s report requires no discussion. The granting of this motion, which sought a recommittal of the report in order that additional facts be found and that certain evidence be reported, rested in the sound discretion of the trial judge. Pearson v. Mulloney, 289 Mass. 508, 513. Buckley v. John, 314 Mass. 719, 725. Its denial discloses no abuse of discretion.
The overruling of the exceptions to the master’s report reveals no error. Exceptions to a master’s report cannot be sustained unless error appears on the face of the report. Minot v. Minot, 319 Mass. 253, 258-259, and cases cited. The only exceptions that need be discussed are those alleging that the ultimate findings of the master were inconsistent with his subsidiary findings. We assume that the findings of the master establish that there was a natural watercourse running through the lands of the plaintiffs and the defendant, and that both parties have the rights and obligations incident thereto, even though no mention of it was made in the plaintiffs’ deed. See Johnson v. Jordan, 2 Met. 234, 239; Luther v. Winnisimmet Co. 9 Cush. 171, 174; McGowen v. Carr, 272 Mass. 573, 576; DiNardo v. Dovidio, 312 Mass. 398, 402. Reading the report as a whole, we think that the findings must be interpreted to mean that what the defendant did in 1938 and prior thereto had no appreciable effect on the watercourse and that its obstruction and the flooding of which the plaintiffs complain were due to natural causes. The ultimate findings of the master, therefore, were not inconsistent with his subsidiary findings and they were binding on the trial judge, and are binding on us. Kasper v. H. P. Hood & Sons, Inc. 291 Mass. 24, 25. Dodge v. Anna Jaques Hospital, 301 Mass. 431, 435. They afford no basis for injunctive relief or damages.
Decree affirmed with costs.
After the suit was commenced, the original defendant Shader died and her executor was substituted as a defendant. The original defendant will be referred to as the defendant in this opinion.
By the rule, the master was ordered “to hear the parties and their evidence and report his findings, together with such facts and questions of law as either party may request.” — Reporter.