ANTHONY W. GRAZIANO & another [Note 1] vs. VIRGINIA M. RILEY [Note 2] & another. [Note 3]

GREEN, J. After a jury-waived trial, a Superior Court judge found that the defendants had erected a stone and earthen berm that blocked the path of a deeded drainage easement serving the plaintiffs' property, but that the berm's continued existence for more than forty years barred the plaintiffs from relying on the rights granted by the easement. The judge nonetheless ordered the defendants to remove the berm, based on his conclusion that its presence constitutes a continuing nuisance. Because the defendants erected the berm before the doctrinal change to

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Massachusetts common-law riparian rights announced in Tucker v. Badoian, 376 Mass. 907 (1978), however, its erection did not constitute a nuisance under then applicable law; we accordingly reverse the judgment concerning the plaintiff's nuisance claim. [Note 4]

Background. We summarize the findings of fact entered by the trial judge. The plaintiffs purchased 42 Deep Run Road in Cohasset on July 13, 2004. Abutting the plaintiffs' property to the rear, and down gradient, is property owned by the defendant Virginia M. Riley, as trustee of V.M.R. Nominee Realty Trust (trust). Riley initially purchased the property with her husband, the defendant John J. Riley, on May 20, 1966; the couple built a home on the property that year and have resided there from that time to the present. [Note 5] The residence on the plaintiffs' property was already in existence at the time the defendants purchased their property.

Both properties slope downward in an easterly direction toward Jerusalem Road, and then to the Atlantic Ocean. Accordingly, surface water naturally flows from west to east across both properties, from the plaintiffs' to the defendants' property. A 1953 subdivision plan shows a drainage easement that begins on the westerly side of Deep Run Road, opposite the plaintiffs' property, and then runs under the road and across the plaintiffs' property onto the defendants' property. Thereafter, the easement continues across Haystack Lane and ultimately to the ocean.

Around the time the defendants built their home, they constructed an earthen berm, topped by stones, along the boundary line between their property and the property now owned by the plaintiffs. [Note 6] The berm blocked the natural downslope flow of drainage across the defendants' property and, additionally, blocked its flow through the deeded drainage easement area.

Shortly after moving into their home in 2004, the plaintiffs

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observed that when the water table was high, there was a ponding of water on the back, or easterly, side of their property, abutting the defendants' property.

In an effort to devise a solution to the ponding problem, the plaintiffs retained an engineering firm in 2006. At or about the same time, the town initiated its own effort to improve the drainage in the area of the parties' properties. The town obtained easements from various affected property owners, but did not successfully complete negotiations with the defendants for an easement across their property. The plan devised by the plaintiffs' engineer has been reviewed by the Cohasset Conservation Commission and meets with its satisfaction, but will not be approved until it provides for connection to the newly designed town drainage system. [Note 7] Drainage across the defendants' property is necessary for implementation of the proposed drainage system.

After negotiations between the town and the defendants failed to produce an easement across the defendants' property, the plaintiffs commenced an action in the Superior Court seeking relief under various theories, and both parties appealed from the resulting judgments. [Note 8]

Discussion. The trial judge correctly recognized that the

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defendants' placement of the berm across the drainage easement was wholly incompatible with the plaintiffs' use of the easement, so that its presence for more than twenty years barred the plaintiffs from asserting any rights to use the easement for drainage. [Note 9] See, e.g., New England Home for Deaf Mutes v. Leader Filling Stations Corp., 276 Mass. 153, 159 (1931); Cater v. Bednarek, 462 Mass. 523, 528 n.16 (2012). [Note 10] Hence, the plaintiffs' claims for trespass and for interference with a drainage easement were appropriately dismissed. See note 8, supra. The trial judge also correctly recognized that he lacked authority to compel the defendants to grant an easement across their property. See Goulding v. Cook, 422 Mass. 276, 279-280 (1996). The judge erred, however, in concluding that the berm constitutes a continuing nuisance, warranting an equitable order compelling its removal.

At the time the defendants constructed the berm, Massachusetts followed the so-called " 'common enemy' approach to surface water problems. See, e.g., 6A American Law of Property § 28.63, at 189-190 (A.J. Casner ed. 1954)." Tucker v. Badoian, supra at 913. Under then applicable law, "one landowner [was] free to stop surface water from entering his land despite harm to his neighbor." Id. at 912. In addition, such a landowner could "with impunity grade and improve his land for a lawful purpose even though he thereby diverts surface water onto his neighbor's land." Ibid. Accordingly, though construction of the berm interfered with the rights of the plaintiffs' predecessors in interest under the drainage easement (an infraction against which the limitations period has long since expired), it did not constitute a common-law nuisance.

In Tucker v. Badoian, supra, six Justices of the Supreme Judicial

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Court joined in a concurring opinion announcing an intention to change Massachusetts law on riparian rights, to adopt the more flexible "reasonable use" standard for application in future cases. See id. at 916-918 (Kaplan, J., concurring). However, the opinion specifically and pointedly stated that "the new standard should be reserved for prospective application, that is, for conduct occurring hereafter," based on concern that conduct preceding the opinion had relied on settled law of long standing. Id. at 918-919. Indeed, there are doubtless many artificial structures, berms, or other modifications to natural grades throughout the Commonwealth that were put in place before 1978 that would be vulnerable to orders for removal, were they viewed as a continuing nuisance under the more recent reasonable use standard.

In concluding that the berm constituted an actionable continuing nuisance, the trial judge applied the reasonable use standard. However, the berm was fully completed and in place in 1966, more than ten years before adoption of that standard. There is no indication in the record that the defendants altered or expanded the berm in any manner after 1978. [Note 11] The judgment compelling removal of the berm accordingly must be reversed. [Note 12]

Conclusion. The "Judgment on Finding of the Court Re: Count I (Nuisance)" is reversed. The remaining judgments are affirmed.

So ordered.