9 Mass. App. Ct. 925

May 15, 1980

Following the remand of this case reported in 7 Mass. App. Ct. 848 (1979), the master filed a supplemental report which, without deciding the point, we treat as having established that the general finding of negligence was based solely on the subsidiary findings originally reported. A different judge adopted the report and entered judgment for the plaintiff in accordance with the general finding. Contrary to the defendant's contention, the question of the sufficiency of the subsidiary findings to support the general finding was not resolved adversely to the plaintiff in the prior appeal; nor is the case factually in the same posture it was in at the time of the first appeal, for a judge has now adopted the report including the general finding. There was no error in that order. So far as appears from the report the rise in the water level which led to the plaintiff's land being flowed

Page 926

was not the result of freshets or other extraordinary conditions for which the defendant might not be responsible (see Brady v. Blackinton, 113 Mass. 238 , 245 [1873]) but was the natural and inevitable result of the flashboards' accomplishing the purpose for which they were installed. The report warranted the inference that the selectmen were negligent in raising the flashboards to a height which they knew or should have known would cause the plaintiff's land to be flowed.

Judgment affirmed.