DONALD TARZIA & another [Note 1] vs. TOWN OF HINGHAM.

BROWN, J. The plaintiffs allege that as a result of the overflow of a town river and pond they sustained bodily injury and property damage. A judge of the Superior Court, sitting without a jury, found for the town on all counts of the plaintiffs' amended complaint. Of the several counts in the plaintiffs' complaint only those alleging negligence and private nuisance are being pressed on this appeal from the ensuing

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judgment. [Note 2] We reach a Solomonic conclusion: the negligence claim was correctly decided by the trial judge; the nuisance claim was not. [Note 3]

Since 1973, the plaintiffs, Donald and Dorothy Tarzia, have been resident owners of property located near the Weir River in Hingham and Foundry Pond, which is owned by the town of Hingham. On the northerly side of the pond is a dam with control gates and sluices. In 1982, the river overflowed and flooded the plaintiff's property. The plaintiffs implored the town to take measures to prevent future flooding; however, the town took no action, although remedial action was contemplated by an agency of the town. On June 2, 1984, the river again overflowed and flooded the plaintiffs' property. On that occasion the flooding persisted for two to three days, causing severe damage to the plaintiffs' real estate and personal property.

The trial judge made the following findings. "The flooding of the plaintiffs' property was caused by: (1) a buildup of silt and vegetation in the Weir River which decreased its water-carrying capacity; (2) a buildup of silt and vegetation in Foundry Pond which diminished its capacity to retain water within its banks, and the failure to maintain any drainage structures in an operational mode." Road sand and salt contribute to the problem in the river. Prior to 1971, the municipal entity responsible for the river and the pond had drained the pond and removed silt from the river, and on several subsequent occasions it had formulated various plans to dredge the pond, install control gates to control the seasonal water flow, and implement long range maintenance programs for the river.

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After concluding that the town "was aware of the situation for many years and took no remedial action" in furtherance of any of those plans, the judge determined that the plaintiffs could not recover for negligence as the decision how best to manage the silt and weeds in the river and pond fell within the discretionary function exception to the Massachusetts Tort Claims Act. [Note 4] He further determined that the town's conduct in maintaining the river and pond was reasonable and, therefore, did not constitute a nuisance.

In the circumstances presented here we conclude that the town's failure to remove the accumulated silt and vegetation in the pond and the river does not constitute actionable negligence. In Whitney v. Worcester, 373 Mass. 208, 218 (1977), the Supreme Judicial Court opined that, "[w]hen the particular conduct which caused the injury is one characterized by the high degree of discretion and judgment involved in weighing alternatives and making choices with respect to public policy and planning, governmental entities [making such decisions] should remain immune from liability." The court distinguished such so-called "discretionary functions" from those involved in the "carrying out of previously established policies or plans." Ibid.

Citing Doherty v. Belmont, 396 Mass. 271 (1985), for support, the plaintiffs argue that removing the silt and vegetation from both the river and the pond was a ministerial maintenance obligation, rather than a discretionary function. [Note 5] More than maintenance was here involved. How to

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deal with the accumulation of silt and vegetation in the river and the pond, including a decision whether it should be treated at all, requires, among other things, consideration of different methods of silt and vegetation removal, the effect of using the control gates presently in place or installing new ones, the impact of removal procedures on surrounding areas, the choice of the company most qualified to effectuate the removal, and the cost and financing for such an endeavor. These decisions involve the exercise of a "high degree of discretion and judgment . . . with respect to public policy" and represent planning and policy making for which there is governmental immunity. Harry Stoller & Co. v. Lowell, 412 Mass. 139, 142 (1992), quoting from Whitney v. Worcester, 373 Mass. at 218. See also Alter v. Newton, ante 142, 145-147 (1993). Accordingly, the judge was correct in holding that the town is shielded by G. L. c. 258, Section 10(b), from the plaintiffs' claims of negligence. [Note 6]

The second prong of the plaintiffs' argument on appeal is that the trial judge erred in finding that the town's conduct in maintaining the river and pond was reasonable and, therefore, did not create a nuisance. A private nuisance is actionable when a property owner "creates, permits, or maintains a condition . . . on [its] property that causes a substantial and

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unreasonable interference with the use and enjoyment of the property of another." Asiala v. Fitchburg, 24 Mass. App. Ct. 13, 17 (1987). See Morash & Sons, Inc. v. Commonwealth, 363 Mass. 612, 616 (1973). See also Whitney v. Worcester, 373 Mass. at 219 n.11. It is a common law action not included within G. L. c. 258. The discretionary function exception in the Act thus does not apply to shield a town from claims of nuisance. Asiala v. Fitchburg, 24 Mass. App. Ct. at 18 & n.4. Schleissner v. Provincetown, 27 Mass. App. Ct. 392, 395 n.3 (1989). That a high degree of judgment is involved in any decision to abate a nuisance does not immunize the town if it fails to take reasonable steps to remedy the situation.

The plaintiffs argue that the facts of the instant case are analogous to those in Schleissner v. Provincetown, supra, and thus its reasoning should be controlling here. We agree. [Note 7] In Schleissner, the court upheld the trial court's finding of nuisance against a municipality where (1) its storm water disposal system caused the flooding of the plaintiff's property; (2) the town had been aware of the periodic flooding of the plaintiff's property for years; (3) the town took no remedial action; (4) the intrusion to the plaintiff was not de minimis; and (5) an expert testified that the town could eliminate the flooding of the plaintiff's property by removing two drainage pipes installed by the town. [Note 8]

In the present case, in concluding that the town had acted reasonably and that the plaintiffs' claim of nuisance failed, the judge applied the legal criteria that he thought applicable

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to natural conditions of land as opposed to artificial conditions on land. [Note 9] That he did this is evident from his explanation:

"There is no dispute that a natural silt and vegetation buildup caused the flooding . . . . The only similar case of the natural filling of a watercourse resulted in a finding of no nuisance. Sawyer v. Shader, 321 Mass. 725 (1947). The cases relied on by the plaintiffs involve some affirmative action by the defendant to create or maintain the condition complained of as a nuisance."

The traditional common law rules distinguished between the legal criteria that apply to natural conditions as compared to artifical conditions. See Restatement (Second) of Torts Sections 839, 840(1) (1977). Prosser & Keeton, Torts Section 57 (5th ed. 1984). But even assuming that the common law rules are still applicable, and we do not decide that they are, "[t]he term `natural condition' of land [is narrowly defined and] means a condition that is not in any way the result of human activity . . . . [A]n artificial structure that was harmless when created but that has become dangerous through natural decay is not a natural condition." Restatement (Second) of Torts Section 840, comment a.

Here the pond whose overflow clearly contributed to the flooding of the plaintiffs' land was artifically dammed at its northerly side and had control gates and sluices. [Note 10] The town's

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land was not in its natural condition. Thus, even if the rule apparently relied upon by the judge were applicable, the rationale of Schleissner v. Provincetown, 27 Mass. App. Ct. at 394-395, governs. While the buildup of silt may have been natural, [Note 11] the cause of the flooding was an artificial condition. That the dam, the control gates, and the sluices were built prior to the town's ownership of the land does not relieve the town from liability. Restatement (Second) of Torts Section 839. [Note 12]

We thus conclude that the judge's determination that there was no nuisance was based at least in part on his mis-application of the law. [Note 13] In view of his other findings, we consider it likely that, applying the correct rule, that of Schleissner, he would find that a nuisance exists. See notes 7 & 8 supra. In any event, the question must be decided anew. Accordingly, the judgment is reversed as to the count alleging nuisance and is otherwise affirmed. The case is remanded to

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the Superior Court for such further proceedings as are consistent with this opinion.

So ordered.