Opinion
15-P-299
02-19-2016
LOUIS MAFFEI v. KENNETH CARL RICHARD JOHNSON, executor.
NOTICE: Summary decisions issued by the Appeals Court pursuant to its rule 1:28, as amended by 73 Mass. App. Ct. 1001 (2009), are primarily directed to the parties and, therefore, may not fully address the facts of the case or the panel's decisional rationale. Moreover, such decisions are not circulated to the entire court and, therefore, represent only the views of the panel that decided the case. A summary decision pursuant to rule 1:28 issued after February 25, 2008, may be cited for its persuasive value but, because of the limitations noted above, not as binding precedent. See Chace v. Curran, 71 Mass. App. Ct. 258, 260 n.4 (2008).
MEMORANDUM AND ORDER PURSUANT TO RULE 1:28
Over the years, the defendant's decedent filled and levelled a portion of his property. After the decedent's death, the plaintiff sued his estate, alleging that the filling stopped the flow of water from the plaintiff's land onto the decedent's land and resulted in the accumulation of water on one part of the plaintiff's property. The judge took a view of the area and held a two-day trial on the plaintiff's nuisance claim. He issued findings of fact, rulings of law, and an order for judgment, concluding that the decedent's actions were reasonable and that his estate was not liable for nuisance. The plaintiff appealed.
The plaintiff's negligence claim was voluntarily dismissed. At the defendant's request and with the agreement of the plaintiff, the trial was bifurcated: the trial was held on the question of liability with the issue of corrective actions reserved depending on the outcome of the liability trial.
We summarize the judge's findings of fact supplemented by undisputed evidence in the record. The plaintiff and the decedent owned abutting properties in Gloucester. The decedent bought his property, consisting of 1.6 acres of land, in 1976. It has a house in the center front of the property. The plaintiff bought his property, consisting of 8 acres of primarily wooded land, in 1978. It has a dirt driveway that runs down the center of the property to a small house in the center rear of the property.
The decedent was in the excavation and construction business. In the early 1990's, he built a garage on his property which he then backfilled against the foundation. Surface water from the plaintiff's property (following rain storms or resulting from melting snow) would flow along the edge of the garage area and through the decedent's property. After the garage was built, the decedent began filling and leveling the area in front and to the left of the garage, and the decedent continued to fill and level that area until his death in 2011. After filling the left side of his property to make it level, he used it to store his construction equipment (which included a dump truck, trailer, excavator, bucket loader and a bulldozer). Before fill was added, there was a swale or a natural channel which ran between the stone wall separating the two properties and the decedent's garage. As the fill was being added, the plaintiff noticed that water from his property increasingly accumulated in the corner of his lot in an area of approximately 4,500 square feet. Such accumulations of water, however, did not interfere with the plaintiff's use of his house or driveway.
Discussion. The plaintiff challenges several of the judge's findings of fact. We do not set aside findings of fact unless they are "clearly erroneous." Mass.R.Civ.P. 52(a), as amended, 423 Mass. 1402 (1996). See Goodman v. Atwood, 78 Mass. App. Ct. 655, 658 (2011), quoting from Gallagher v. Taylor, 26 Mass. App. Ct. 876, 881 (1989) ("Where there are two permissible views of the evidence, the factfinder's choice between them cannot be clearly erroneous"). First, the plaintiff challenges the judge's finding that the decedent's property "contains an on-site sewer disposal system at the rear of the house." This finding is supported by the evidence.
The plaintiff's witness, a registered sanitarian and soil evaluator, testified that his company was hired by the decedent to "do a design plan to repair the existing septic system" and that he "was informed that the existing system was behind the house." Another witness referred to "the septic upgrade." The "on-site wastewater system design" and the "restoration plan" both identify the location of the "existing system to be abandoned in accordance with title 5."
The plaintiff also argues that there was no evidence that he assisted the decedent with backfilling the foundation of the garage. The fair reading of the judge's finding is that the plaintiff assisted the decedent with the overall garage project, not necessarily any specific aspect such as backfilling the foundation. At any rate, the distinction is immaterial, as the defendant does not argue that the plaintiff waived his nuisance claim by assisting the decedent with the construction of the garage. Finally, the plaintiff did not argue that the accumulation of water on his property became a problem after the garage was constructed in the early 1990's, claiming instead that the accumulation of water on his property became a problem after additional fill was added in subsequent years.
The judge wrote: "In the early 1990's, the Decedent decided to construct a garage in the southwest area of the Johnson Property. The Decedent built the garage four feet above its surrounding grade and, then, began backfilling against the foundation of the garage. Maffei assisted the Decedent with this project."
Next, the plaintiff argues that there was no evidence that the decedent filled the area adjoining the garage in order to store his construction equipment there and challenges related findings. In fact, there was evidence that the decedent used to keep some of his equipment at the sites where he was working, on his land in Rhode Island, and on his Gloucester property "wherever he could fit them." After he filled and levelled the area near the garage he began to store his equipment there.
The judge found: "Along with constructing a garage, at this time, the Decedent began to fill the driveway near the front left (western) side of his property, where it borders the Maffei Property, from Woodman Street towards the garage, in order to have a place to store various pieces of construction equipment he used for work."
The judge wrote: "The Decedent was in the construction business. After filling the left side of the Johnson property, the Decedent used the then-level area to store his dump truck, trailer, excavator, as well as his other construction equipment. At trial, Johnson [the executor] testified there was no other place on the Johnson Property appropriate for the Decedent to store this type of heavy equipment."
The plaintiff also takes issue with the judge's characterization of water accumulation on the plaintiff's property as "seasonal" because the water is there eight to nine months of a year. The claim does not affect the result; even accepting the plaintiff's contention that the judge's characterization of the accumulation as "seasonal" was incorrect, the judge's findings make plain that he based his analysis on a correct understanding of the periods during which water accumulation is present on the plaintiff's property.
The judge found: "The water accumulation is seasonal in nature. It is typically present eight to nine months of the year, from October/November until May/June of the following year."
Finally, the plaintiff challenges the judge's finding that the "water accumulation does not flood or interfere with [the plaintiff's] use of his driveway." There was evidence that the plaintiff's dirt driveway went down the center of the property and was 100 to 120 feet from the boundary with the decedent's property. The plaintiff did not testify that the water accumulating in the corner of his property interfered with his use of the driveway. When shown one of the photographs of the property that was admitted in evidence, he testified that "[t]here is a section just before this point here, that almost touches the driveway. I don't have that in the picture." He later agreed with his counsel that when one turns into the driveway, there would be water "on the right of the driveway."
Plaintiff's negative response to defense counsel's question about whether it would be "fair to say that your driveway has never been flooded" does not require a different conclusion.
The plaintiff separately argues that the judge erred as a matter of law in finding that the decedent's use of his property was reasonable. In DeSanctis v. Lynn Water & Sewer Commn., 423 Mass. 112, 116 (1996) (citations and quotations omitted), the court wrote:
"In Massachusetts, liability for a private nuisance caused by the flow of surface waters from a landowner's property to that of an adjoining landowner depends on whether the landowner is making a reasonable use of his land. Under the reasonable use doctrine, each possessor is legally privileged to make a reasonable use of his land, even though the flow of surface waters is altered thereby and causes some harm to others . . . . Reasonableness is a question of fact for the [fact finder] whose decision is based on consideration of all the relevant circumstances including the amount of harm caused, the foreseeability of the harm which results, the purpose or motive with which the possessor acted, and all other relevant matter. The [fact finder] also must consider whether the utility of the possessor's use of his land outweighs the gravity of the harm which results from his alteration of the flow of surface waters."
Here, the judge found that constructing the garage and adding fill to a portion of the decedent's property was necessary to enable the decedent to store his construction equipment, which in turn was necessary for his job. The judge also found that the flooding on a small portion of the plaintiff's eight-acre property is away from his house and does not adversely affect his ability to use his home or his driveway. He found that the minimal harm to the plaintiff did not outweigh the benefit to the decedent of storing his construction equipment on his property, that the decedent's actions were reasonable, and that his estate could not be held liable for nuisance.
The judge also found that adding fill and increasing the elevation of the area in question to prevent water runoff from the plaintiff's property was necessary to construct and protect a septic system that the decedent hired a company to install and that this further supported his finding that the decedent's use of his property was reasonable. While the plaintiff suggests that there were inexpensive alternatives, there was no evidence at trial about the expense involved.
As to the judge's findings regarding the extent of harm, the judge, as a trier of fact, could weigh the credibility of witnesses and the weight to give to their testimony. See Goodman v. Atwood, 78 Mass. App. Ct. at 657-658. For example, the judge could consider the plaintiff's testimony that prior to 1991 he cut down one tree in the area which became subject to water accumulation and that he did not remember cutting any wood in that area. He could consider the plaintiff's testimony that some of the trees were going to die and that "maybe portions of them can be . . . used for firewood" and the observations of the environmental consultant that she saw no evidence of dying trees. He could also consider the plaintiff's testimony that ninety percent of his property is wooded. While the plaintiff suggests in his brief that the accumulation of water created a "jurisdictional wetland," when shown a city of Gloucester wetlands map at trial he confirmed that he answered "no" when asked on direct examination "whether in fact the legend which shows for wetlands is shown on [his] property."
In summary, we discern in the plaintiff's various claims of error no cause to disturb the judgment. Accordingly, the judgment is affirmed.
So ordered.
By the Court (Green, Wolohojian & Henry, JJ.),
The panelists are listed in order of seniority. --------
/s/
Clerk Entered: February 19, 2016.