386 Mass. 858 | Mass. | 1982
Triangle Center, Inc. (Triangle), appeals from the Land Court judgment denying its prayer to enjoin the Department of Public Works (DPW) from discharging water from a State highway onto Triangle’s land. The DPW cross appeals, asserting that the Land Court erred in ruling that the DPW’s claimed drainage easement was extinguished by G. L. c. 185, § 45. Because we conclude that the DPW never had a drainage easement, we do not consider whether such an easement was extinguished. We reverse the judgment and remand the case for further proceedings consistent with this opinion.
We take the following facts from the judge’s findings. In 1936, the DPW took a section of highway named Plain Street on behalf of the town of Marshfield. The DPW installed a drainage system wholly within the highway bounds, consisting of a headwall and pipe, which seasonally discharges water onto Triangle’s land. The owner in 1936, a commercial florist, did not object to the periodic flooding. No easement was recorded.
In 1941, the DPW laid out and took charge of the relevant section of roadway as a State highway. In 1945, the florist conveyed the property to James A. Logue and his wife. Shortly thereafter and continuing from time to time until 1970, Logue and business associates conferred with DPW representatives about solving the drainage problem. Local DPW representatives originally assured Logue that efforts would be made to rectify the situation. Since 1967, however, the district highway engineer has claimed that the DPW acquired “prescriptive rights” to discharge the water onto Triangle’s land. In 1966, Logue conveyed title to the land to Triangle, of which he is now the sole stockholder.
The question of drainage rights remained dormant from the time of the decree until February, 1980, when the DPW again claimed prescriptive rights. This complaint followed.
General Laws c. 185, created a system of land registration designed to provide certainty in real estate titles. Section 45 of G. L. c. 185, as appearing in St. 1981, c. 658, § 25, gives finality to registration decrees subject “to the right of any person deprived of land, or of any estate or interest therein, by a judgment of registration obtained by fraud to file a complaint for review within one year after the entry of the judgment, provided no innocent purchaser for value has acquired an interest.” We have held in State St. Bank & Trust Co. v. Beale, 353 Mass. 103 (1967), and in Kozdras v. Land/Vest Properties, Inc., 382 Mass. 34 (1980), that one who loses land through a registration decree procured by fraud is entitled to an order requiring conveyance of the land to him though one year has passed since the entry of the decree, so long as no innocent purchaser for value has acquired an interest.
The DPW argues that Triangle obtained its decree by fraud within the ambit of these holdings, and that its drainage rights survive that decree. The trial judge concluded
There was no taking in pais. Although the DPW may have a common law right to discharge surface water onto Triangle’s property, the exercise of this right would not constitute a taking in pais, and neither such a right nor its exercise would constitute an “encumbrance” on Triangle’s land within the meaning of G. L. c. 185, § 46. Therefore, we need not consider the issues raised by the allegation of fraud.
1. Taking in pais. The DPW argues that by installing a drainage system in conjunction with laying out a State high-' way, and by discharging water onto Triangle’s land, it effected a taking in pais.
2. Common law right of drainage. The Land Court denied Triangle injunctive relief by relying on the rule expressed in Holleran v. Boston, 176 Mass. 75, 77 (1900), and Turner v. Dartmouth, 13 Allen 291, 293 (1866), that a town or city may freely drain surface water from public ways onto adjoining privately owned land, and that no action lies for damage to the land even where the water is gathered into artificial channels before passing from the way. The court implicitly recognized that towns and cities have no greater common law rights than the Commonwealth. Commonwealth v. Plaisted, 148 Mass. 375, 386 (1889).
The concurring opinion in Tucker v. Badoian, 376 Mass. 907, 916-917 (1978) (Kaplan, J., concurring), provides guidance for resolving the issue before us. There, six members of this court announced their intention to apply the “reasonable use” doctrine to disputes between private landowners involving drainage of surface water onto neighboring private property. This would replace the “common
The government’s right, expressed in Holleran, supra, and Turner, supra, to divert surface water from public ways onto neighboring property, is also rigid and anarchic.
The question whether the DPW’s drainage of water onto Triangle’s land is actionable is in substance no different from the question whether the DPW’s use constitutes a private nuisance. See Tucker, supra at 917 (Kaplan, J., concurring). Several other States have explicitly applied the doctrine of private nuisance in assessing the reasonableness of draining surface water off public land. See Reid v. Gwinnett County, 242 Ga. 88, 89 (1978); Klutey v. Commonwealth, Dep’t of Highways, 428 S.W.2d 766, 769 (Ky. 1968); County of Clark v. Powers, 196 Nev. 497 (1980). See also Restatement (Second) of Torts § 833 (1979). The Commonwealth may be held liable in tort for uses of its land that constitute a private nuisance. Morash & Sons v. Commonwealth, 363 Mass. 612 (1973) (DPW maintenance of road salt storage for nearly fifty years fouled adjoining
Public safety requires the drainage of surface waters from highways. However, it is unreasonable to impose on private individuals a disproportionate share of the cost of this public benefit. In nuisance actions against private defendants it is relevant, although not decisive, to compare the cost to the defendant of an injunctive remedy with the damage to the plaintiff. See Kasper v. H.P. Hood & Sons, 291 Mass. 24, 27-28 (1935); Cumberland Corp. v. Metropoulos, 241 Mass. 491, 502-503 (1922). In an action against a public defendant, however, such a comparison need not be made because the defendant, having the power to take a drainage easement by eminent domain, can limit its cost to the damage incurred by the adjoining landowner due to the encroachment. We think, therefore, in the absence of equitable considerations not apparent in the record before us, if the additional drainage onto Triangle’s land attributable to the construction and maintenance of the road causes identifiable and more than de minimis damage, an injunction against its continuation would be appropriate, leaving the DPW to make other drainage arrangements or to take an easement. If, on the other hand, that drainage causes only de minimis damage to Triangle’s land, an injunction would be inappropriate.
Our decision is consistent with those of several other States. In Klutey, supra, at 767, 771, the court held that injunctive relief against drainage from a road was properly
3. Effect of registration on the Commonwealth’s right to drain. General Laws c. 185, § 46, provides that a registration decree renders title “free from all encumbrances” except those noted on the certificate and certain others not material here (emphasis added). We must determine whether either the Commonwealth’s common law right to drain surface water onto neighboring land, or the exercise of that right, constitutes an “encumbrance” on that land within the meaning of § 46. If either does, the right is extinguished as a result of not having been noted on the registration certificate.
Excluding the Commonwealth’s drainage right from the definition of “encumbrance” is consistent with the purposes of land registration. Registration is not meant to make land more valuable by extinguishing nontitleholders’ rights in it; it is intended to make title more marketable by making title more certain. Deacy v. Berberian, 344 Mass. 321, 328 (1962). J. Hogg, Registration of Title to Land Throughout the Empire 100-101 (1920) (“the best guide in determining the limits of the conclusiveness of the register” is the “general principle . . . that registration of title is not intended to change the substantive law of property, or interfere with rights under that law except so far as is necessary for the carrying out of its professed objects — facility in dealing with land and security of title to land”). Extinguishing a right that exists against all parcels, the right to drain a de minimis quantity of water, would not make title more certain. Therefore, the registration process could not be concerned with this right, and the registration decree did not affect it.
So ordered.
Notice was required by G. L. c. 185, §§ 38 and 39.
The DPW does not argue on appeal that it acquired any rights by prescription as distinguished from acquisition by a taking in pais.
Cases such as Holleran v. Boston, 176 Mass. 75 (1900), and Turner v. Dartmouth, 13 Allen 291 (1866), characterize the government’s right to divert surface water as absolute. Whether this is the common law rule is unclear. Other cases from the same era apply nuisance analysis to municipal drainage cases. See Daley v. Watertown, 192 Mass. 116, 119 (1906); Manning v. Lowell, 130 Mass. 21 (1880).
On appeal, Triangle seeks only injunctive relief against future drainage, not money damages for past drainage. At least in this circumstance, -there is no injustice in applying this rule to drainage by the Commonwealth that has occurred for a long time. We have noted that through the eminent domain power, the Commonwealth can limit its cost to the damage to the adjoining landowner, and that it is unreasonable for the Commonwealth to impose on that landowner a disproportionate share of the cost of the public benefit. The longevity of the drainage does not make the Commonwealth’s present drainage any more reasonable than it would be if it had just begun.
Our decision today is restricted to drainage by the government. It should not be read to affect the reasonable use analysis applied to disputes between private landowners.
Citing Leeds v. Wheeler, 157 Mass. 67, 68 (1892), and First African Methodist Episcopal Soc’y v. Brown, 147 Mass. 296, 299-300 (1888), the amici curiae, Massachusetts Conveyancers’ Association and Abstract Club, suggest that only recordable interests constitute encumbrances, and that therefore registration did not affect the Commonwealth’s right to drain. We need not reach this argument.