Von Henneberg v. Generazio

O’Connor, J.

(dissenting). In Tucker v. Badoian, 376 Mass. 907, 916-918 (1978), six Justices of this court announced that, in the future, water diversion cases would be governed by a “reasonable use” standard, the “details” of which “[would] evolve and be determined in the usual way through the decisional process.” This is the first case in which the court has been called upon to give shape to the new rule and to demonstrate its application. This case, then, is not only important to the parties. It also provides the court an opportunity to move forward in an area of the law that has heretofore been troublesome and unsettled.

I write this separate opinion because I read the court’s opinion as unwisely permitting a jury to impose liability on a defendant on the basis of evidence that, as a matter of law, demonstrates no more than that the defendant diminished the value of the plaintiff’s land by obstructing the flow of water from it. Such evidence, without more, should not be legally sufficient to warrant a finding of unreasonable use.

I believe that the court should articulate standards by which reasonableness and unreasonableness must be measured, and I also believe that the reasonable use or unreasonable use issue should not be submitted to a jury unless, unlike here, the evidence is sufficient as a matter of law to warrant a finding of unreasonableness in the light of those standards.

I suggest that the standards identified by the Supreme Court of North Carolina in Pendergrast v. Aiken, 293 N.C. 201, 217 *527 (1977), would be appropriate. In that case, the court reasoned that a determination of reasonableness requires “weighing the gravity of the harm to the plaintiff against the utility of the conduct of the defendant. Armstrong v. Francis Corp., [ 20 N.J. 320, 330 (1956)]; State v. Deetz, [ 66 Wis. 2d 1 (1974)]; Restatement (Second) of Torts § 826 (Tent. Draft No. 18, 1972). Determination of the gravity of the harm involves consideration of the extent and character of the harm to the plaintiff, the social value which the law attaches to the type of use which is invaded, the suitability of the locality for that use, the burden on plaintiff to minimize the harm, and other relevant considerations arising upon the evidence. Determination of the utility of the conduct of the defendant involves consideration of the purpose of the defendant’s conduct, the social value which the law attaches to that purpose, the suitability of the locality for the use defendant makes of the property, and other relevant considerations arising upon the evidence.” It is my view that the jury in the present case, guided by a consideration of those factors, could not have concluded rationally that the defendant’s blockage of water flow was unreasonable.

The evidence in its light most favorable to the plaintiff, supplemented by other relevant evidence, was as follows. In 1957, Henneberg purchased a farmhouse and one-acre lot at 618 Edmands Road in Framingham from Philip Weir. Weir retained ownership of an undeveloped back lot and also owned a forty-foot wide access strip connecting the back lot to Ed-mands Road. This right of way ran along the east side of Henneberg’s property (the left side facing the property from Edmands Road). At first, there was good drainage from Hen-neberg’s property across the right of way. The right of way was flat. In 1972, Weir piled earth on the right of way to construct a driveway to the back lot. As a result, there was a six-foot-high earthen bank “partially through” the right of way. When water started to collect “at the bottom of this bank,” Henneberg wrote a letter to Weir complaining that the bank blocked the natural flow of water from his land. In response, Weir dug a drainage trench on Wier’s land parallel to Hen-neberg’s rear boundary line and perpendicular to and across *528 the base of the driveway. The ditch was one foot or less deep at its easterly (left) end and became deeper as it ran westerly. The trench collected water from Henneberg’s property and the earthen bank and left Henneberg’s ground free of water and his lawn undamaged. After this, Henneberg had no problem with water collecting on his property until 1980.

On November 13, 1979, the defendant Generazio, a builder, purchased the back lot and right-of-way strip from Weir. In April, 1980, Henneberg noticed that water had collected at the “bottom” of his property. Generazio had dumped gravel at the “low part” of the driveway near Henneberg’s land to enable vehicles to be driven “through the soft ground.” This created a “barrier,” so the water backed up onto Henneberg’s land.

Water came from Edmands Road along the unpaved driveway and carried silt and sand onto Henneberg’s property. (Nothing in the record shows that this was caused by anything Generazio had done.) Henneberg complained to Generazio about the water problem, and Generazio told him that he would eliminate the problem by running a drain on his own property.

Subsequently, Generazio built a single-family dwelling on the back lot. He filled the drainage trench that had been dug by Weir but, according to Generazio’s uncontradicted testimony, he replaced Weir’s trench with another trench of the same length approximately two feet away, and filled it with a perforated pipe and a filter made of one-inch stones. 1

Generazio also paved the driveway with asphalt. Water still flowed from the driveway onto Henneberg’s land and Hen-neberg complained to the town’s building inspector. Generazio built a curb along the driveway and a catch basin at the bottom of the driveway. The catch basin did not solve the problem of water collecting at the low spot on Henneberg’s property because, according to Henneberg’s testimony, the catch basin “was constructed on the wrong side of the driveway”; water could not go from Henneberg’s land over the “little bank” of *529 the driveway built by Generazio, which constituted a “barrier,” and thus could not drain into the catch basin. 2 After Generazio installed the drain and the curb, he did nothing further to get rid of water on Henneberg’s property.

Generazio also constructed a berm across the top of his driveway where it meets Edmands Road, in order to prevent water from spilling off Edmands Road onto the driveway. As a result, water ponded on the road and leaked into Henneberg’s property through a breach in the curb in front of Henneberg’s property. Henneberg has never complained to the town about that breach.

Henneberg testified that he has not installed any trench or drain on his own property, has taken no action to drain water off his property, and has not contacted any contractor to see if such action on his part would be possible.

Generazio’s conduct was incidental to the construction of a single-family home in a residential area. The jury would not have been warranted in finding otherwise. Thus, nothing about “the purpose of the defendant’s conduct, the social value which the law attaches to that purpose, [or] the suitability of the locality for the use the defendant makes of the property,” all relevant factors identified in Pendergrast v. Aiken, supra, weighs against Generazio or in favor of Henneberg. Furthermore, the evidence leaves entirely to speculation whether Generazio could have avoided the conduct of which Henneberg complains while still making his property usable for residential purposes.

Moreover, the jury would not have been warranted in concluding that the Pendergrast v. Aiken factors bearing on the “gravity of the harm to the plaintiff’ weigh in Henneberg’s favor. A key factor is “the burden on plaintiff to minimize the harm.” Nothing in the evidence shows that the back-up of water could not easily have been avoided by Henneberg. The evidence does not warrant a finding that most or all of the collected water does not come from Edmands Road through *530 the breach in the berm at the front of Henneberg’s property, a condition about which Henneberg did nothing. For all that appears in the evidence, the water collection problem could have been corrected by Henneberg’s employment of simple and inexpensive methods of dealing with the source of the water or its evacuation. The evidence was insufficient to warrant the jury in concluding that the plaintiff had sustained his burden of showing that the gravity of the harm to Henneberg’s property outweighed the utility of Generazio’s conduct. Therefore, the evidence did not warrant a finding that the defendant’s conduct was “unreasonable.”

There are jurisdictions which, at least in the past, have embraced the so-called “civil law” or “natural flow” rule, subjecting a landowner to liability whenever he interferes with the natural flow of surface water to the detriment of another’s property. The concurring Justices in Tucker v. Badoian, supra at 917 , rightly characterized that rule, which has never been the law of this Commonwealth, as “unsatisfactory.” If the court is to develop a cogent body of law dealing with surface water disputes, it should not purport to reject the natural flow doctrine and then hold, as it implicitly does today, that evidence, which as a matter of law proves nothing more than the defendant’s interference with the natural flow of water to the detriment of his neighbor’s land, is sufficient for liability. I respectfully dissent.

The court’s opinion notes merely that Generazio “filled in the drainage trench.” Ante at 521. Henneberg testified that Generazio has “run a pipe along the trench.” Clearly, there was no evidence that Generazio filled in the drainage trench without providing a substitute for it.

The evidence did not disclose whether Generazio owned land on Henneberg’s side of the driveway on which an effective catch basin could have been placed.