REG 38862

May 11, 1979

Middlesex, ss.

Sullivan, J.


In this proceeding pursuant to General Laws, c. 185, §l(a), the only objection to the registratipn of the title of the substituted petitioners, Lorenzo Diana and Anna Diana, [Note 1] to the land shown on a plan entitled "Plan of Land in Burlington, Mass.", dated January, 1975, by Emmons, Fleming & Bienvenu, Inc., comes from Robert W. Murray, the owner of registered land adjoining the present locus on Westwood Street in Burlington in the County of Middlesex. Mr. Murray contends that the locus is subject to the flow of a natural watercourse to which his adjoining registered land, shown as Lot 17 on Land Court Subdivision Plan No. 38128C, also is subject. Lot 17 (together with Lots 18 to 22 inclusive on said plan) results from the subdivision of land previously shown on Land Court plans Nos. 38128A, sheet 2, 32412B, and 39138A.

A trial was held at the Land Court on September 21 and September 22, 1978 and January 8, 1979. A view was taken by the Court in the presence of counsel on November 15, 1978. At the trial a stenographer was appointed to record the testimony. All exhibits introduced into evidence are incorporated herein for the purpose oE any appeal.

On all the evidence I find and rule as follows:

1. The portion of the respondent's registered land adjoining the locus originally was shown as Lot 4 on Land Court plan No. 38128A, sheet 2. During the pendency of the proceedings in Case No. 38128 to register the respondent's title to Lot 4 and other land, an answer was filed by John A. DeFrancesco, a witness in the present case, in which he claimed the plan filed with Mr. Murray's petition failed to show "the brooks, marsh areas, and stone wall boundaries."

2. An agreement was reached between Mr. Murray and Mr. DeFrancesco as to the brook, and on the basis of information furnished by Mr. Murray's surveyor, the Land Court Engineers prepared plan No. 38128A showing the so-called brook. The plan suggests that it crosses the petitioners' land, but no notice was given to the petitioners or their predecessors in title of the amendment of the plan as originally filed by Mr. Murray.

3. There are several registration cases in the immediate vicinity of the locus, but in none of the plans filed with the Court was a brook ever shown prior to the filing of Mr. DeFrancesco's answer.

4. Mr. DeFrancesco testified that at the time he moved into his home which is adjacent to that of the petitioners on the northwest, it was the last house on the street. Westwood Street then was a dirt road from his house to the public school located at the end of the road. There was a marshy area behind his house as is shown on said plan, but there was no water flowing on the north side of Westwood Street. The water from the higher areas to the south and east flowed down the south side of Westwood Street, then went through a culvert to the west of the witness' house and into the marshy area behind it. Presumably it eventually reached the Ipswich River to the northwest.

5. About 1972 a twelve-inch culvert was installed in the location shown on said plan, and some of the water which theretofore had flowed along the southerly side of Westwood Street entered the culvert and flowed in a northwesterly direction across land of the respondent and the petitioners.

6. In 1967 Westwood Street was taken as a public way by the Town of Burlington. The order of taking was dated May 3, 1967 and recorded with Middlesex South District Deeds, Book 11334, Page 014. (Abstract, sheet 9). Thereafter Mr. MUrray agreed with the Burlington Planning Board to construct the road in accordance with standards acceptable to the town including the drainage system. The undertaking was made in connection with the development of the area by the respondent, and the general recognition of the deficiencies of Westwood Street.

7. The twenty-four inch culvert was installed during the construction of Westwood Street in place of the smaller culvert, and the bed into which the water flows was deepened and cleared by agents of the respondent.

8. There is no evidence as to the identity of the party who installed the twelve-inch culvert, but it appears to have been put in place some time about 1970-1972, perhaps to alleviate the flooding of the road which posed a danger to school buses.

9. After the larger culvert and the new drainage system in the road were installed, the petitioners' land and cellar were flooded at certain periods of the year. The petitioners had put in a pipe to carry the flow of water from the twelve-inch culvert, but this pipe was unable to handle the increased flow from the larger culvert.

10. The petitioners' land formerly was owned by Murray Hills Incorporated with which the respondent is affiliated, and in its deed out to a predecessor in title of the petitioners (Abstract, sheets 8 and 11) no flowage rights were reserved.

In the present posture of this case the petitioners seek no injunction against the respondent to restrain the flowage of their land nor damages for any flooding which has occurred. The only questions which the Court must determine is firstly, whether the entry of the final decree in Registration Case. No. 38128 in which the premises therein registered were described as "subject to the flow of a natural watercourse running through the same and shown on said plan as a brook" forecloses the Court in this proceeding from an independent determination as to whether in fact the waterway is natural or artificial; and secondly, if the matter is open, whether in fact the brook is a natural watercourse.

In the Murray case the decree registered the title subject to the flow of a natural watercourse and did not include any appur- tenant flowage right. Technically therefore it would be possible to consider the question as to the present locus only without reference to the adjoining case. It seems preferable, however, to treat the cases together and consistently. Counsel for the respondent rely on the provisions of G.L. c. 185, §45, which provides:

If the court, after hearing, finds that the petitioner has title proper for registration, a decree of confirmation and registration shall be entered, which shall bind the land and quiet the title thereto, subject only to the exceptions stated in the following section. It shall be conclusive upon and against all persons, including the commonwealth, whether mentioned by name in the petition, notice or citation, or included in the general description "to all whom it may concern." Such decree shall not be opened by reason of the absence, infancy or other disability of any person affected thereby, nor by any proceeding at law or in equity for reversing judgments or decrees; subject, however, to the right of any person deprived of land, or of any estate or interest therein, by a decree of registration obtained by fraud to file a petition for review within one year after the entry of the decree, provided no innocent purchaser for value has acquired an interest. If there is any such purchaser, the decree of registration shall not be opened but shall remain in full force and effect forever, subject only to the right of appeal as provided by law from time to time. But any person aggrieved by such decree in any case may pursue his remedy in tort against the petitioner or against any other person for fraud in procuring the decree.

As was said in Butler v. Haley Greystone Corp., 347 Mass. 478 , 485 (1964):

A decree of registration is "a definitive judgment that binds the parties, even though it does not conform to the evidence or the findings •••• If the failure to make the decree so conform was error, it could have been corrected only upon some seasonable and legally recognized proceeding for appellate or other review."

And this is so despite the provisions of G.L. c. 185, §114

authorizing any person in interest to apply by petition to the Land Court upon the ground that "any error or omission was made in entering a certificate or any memorandum thereon, or any duplicate certificate," or "upon any other reasonable ground" [since that same] "section shall not authorize the court to open the original decree of registration."

Hill v. Taylor, 319 Mass. 5 , 6-7 (1946).

It has been recognized, however, that not only this department, but that of the Superior Court may interpret the language of the decree.

Deacy v. Berberian, 344 Mass. 321 (1962), involved registered land made subject to "an easement to pass on foot or with a team over a way twelve feet in width." Successors in title to the original easement holders, the registered owner and an abutter, disagreed over the scope of the easement; one claiming that it was limited to foot and team travel, the other claiming that the ease- ment was "for all purposes of ingress and egress common to a way." The court noted, at page 328, that:

The purpose of the Land Court Act was to provide a means by which title to land may be made certain and indefeasible. McMullen v. Porch, 286 Mass. 383 , 388. "It must be remembered that [subsequent to the original registration] ••• no one can have a claim which does not appear on the face of the registry. The only rights are registered rights." Holmes, C.J., in Tyler v. Judges of the Court of Registration, 175 Mass. 71 , 81. But see Killam v. March, 316 Mass. 646 , 651. "The purpose of registration law is to bind the land and to quiet title to it. Registration is conclusive upon everyone, with a few exceptions •••, and the rights of innocent purchasers for value are given special protection ••• Persons dealing with the land in the future may rely on the files at the registry and the interests of no one require changes in the records." Malaguti v. Rosen, 262 Mass. 555 , 567-568.

In the instant case, the existence of the easement is conceded. The only argument is whether the means of transportation which may be used upon the way are to be restricted to those specifically mentioned in the Land Court decree of 1912. We are of the opinion that the purposes of the Land Court Act are not violated by the Superior Court interpreting the original decree so as to give effect to a common mode of transportation.

To the same effect is Dubinsky v. Cama, 261 Mass. 47 , 53-54 (1927). In any event, no decision need be made in the present case as to whether the language of the previous decree may be construed, for it is well settled that where a party has actual notice, he is bound thereby, even in the case of registered land. In Killam v. March, 316 Mass. 646 (1944), it was said:

We are of the opinion that the provisions of G.L. (Ter. Ed.) c. 185 relating to transfers or dealings with land subsequent to registration, construed according to the language used and in the light of the foregoing historical background, compel the conclusion that the Legislature did not intend to give certificate holders such as the plaintiffs an indefeasible title as against interests of which they had actual notice. Any other construction would ignore the wording of §46 which provides that one acquires registered land free from unregistered encumbrances if he is a purchaser for value and in "good faith." Although there are many differences between the two systems it is inconceivable that circumstances that would amount to bad faith with respect to unregistered land, namely, acquiring title with notice of an unrecorded interest, would constitute good faith in the case of registered land.

It cannot be doubted that Mr. Murray, the petitioner in Land Court Case No. 38128, and the respondent here was fully aware of the nature of the watercourse across his land, and that the Court is not barred from now reviewing its status.

There have been several recent decisions as to what constitutes a natural watercourse, the determination of which is a question of fact. Ullian v. Cullen, Mass. App. Ct. (1978) [Note 2]. In Stanchfield v. Newton, 142 Mass. 110 , 116 (1886), the court gave the following definition of a watercourse:

To constitute a watercourse, water must usually flow in a certain direction, and by a regular channel, with banks and sides. It may be dry at times, but it must have a well-defined and substantial existence. To constitute a watercourse, there must be something more than a mere surface drainage over one tract of land on to another, occasioned by unusual freshets or other extraordinary causes. The flowing, through a ditch, of water which has accumulated from rains, or the melting of snow, or the under-drainage of land, would not constitute a natural watercourse.

It is possible, and the law so recognizes, that a watercourse artificial in origin may, with the passage of time, become a natural watercourse. See Kuklinska v. Maplewood Homes, Inc., 336 Mass. 489 , 493-94 (1957); Stimson v. Inhabitants of Brookline, 197 Mass. 568 , 571-72 (1908). There is insufficient evidence here, however, to suggest that this has happened here. Nor has any right to flow by adverse possession been shown.

The principles governing watercourses were enumerated in Jackman v. Arlington Mills, 137 Mass. 277 (1884), where the court articulated the rule as follows:

We take the law to be, that the owner of land has no right to collect the surface water into an artificial stream, and discharge it upon the adjoining land of another in such quantities and in such a manner as materially to injure the land; but that such an owner has the right to collect the surface water and the natural drainage of his land into an artificial stream, and discharge it into a natural watercourse on his own land, if the watercourse is the natural outlet of the waters thus collected, even although, by this artificial arrangement, the flow of the waters is accelerated, and the volume at times is increased, provided that this is done in the reasonable use of his own land, and that the discharge is not beyond the natural capacity of the watercourse, and the land of a riparian owner is not thereby overflowed, and materially injured. But he has no right to subject the land of another to a servitude of running water to which it is not naturally subject.

More recently, in Cernak v. Kay-Vee Realty Co., 341 Mass. 315 (1960), a factual situation similar to the present case was presented for decision. The defendants in Cernak owned a tract of land, formerly comprised of undeveloped, rolling hay fields, which they subsequently subdivided and developed. They installed a surface system to collect the water that accumulated on the five streets in the development and channelled it into a discharge pipe, through a ditch and culvert on privately owned railroad property and out onto the plaintiff's land. The court held that:

The defendant cannot bring itself within the principle stated in Kuklinska v. Maplewood Homes, Inc. 336 Mass. 489 , and the cases cited at pages 492-493, to the effect that "A landowner is permitted to improve his land by changes of grade, even if the natural course of surface water is thereby changed on the landowner's land, so long as the water is not discharged on the land of another, as a consequence of a definite, artificial channel, directly or by seepage" ••••

The defendant makes the shallow assertion that there is no liability to the plaintiffs because the water is first discharged upon railroad property. But, of course, if, in consequence, there is a continuing flow onto the plaintiffs' tract, the title of an intervening landowner cannot serve to filter the defendant's responsibility. Nor can the defendant be exonerated because other sources may contribute to the flow and so may "assist in throwing an artificial stream upon land of another." See Fortier v. H.P. Hood & Sons, Inc. 307 Mass. 292 , 296.

Id. at 318-19.

On all the evidence I find and rule that the natural drainage of the area is on the south side of Westwood Street; that the installation of the first culvert beneath the road diverted the natural flow in part onto land of the respondent; that the replacement of the smaller culvert by its twenty-four inch successor caused the waters, which emptied onto land of the respondent, to flood the land of the petitioners; that the diversion of the natural flow from its original course has not continued for sufficient time to shed its artificial origin; that the collection of the surface water into an artificial stream and its discharge on the adjoining land of the petitioners materially injured it; that the respondent has subjected the land of the petitioners to a "servitude of running water to which it is not naturally subject"; and that the title may be registered free therefrom.

Notice should be taken of the concurring opinion in Tucker v. Badoian, Mass. (1978) [Note 3], in which Justice Kaplan, speaking for a majority of the Supreme Judicial Court, stated that the Court will no longer follow the doctrine previously propounded by the Massachusetts courts in the case of an artificial drainage system. However, the new "reasonable use" standard is to be applied to causes of action arising after December 27, 1978, and it therefore is inapplicable to our case.

The petitioners are entitled to a decree registering their title to the premises subject to such matters as are not in issue here, but free from any right of the respondent to flow their land. By order of Court the respondent's outstanding CertifIcate of Title No. 149107 is to be amended to strike from the subject right the word "natural" and "as a brook" and plan No. 38128C is to be amended to delete therefrom the indications of a brook on land of the petitioners in Registration Case No. 38862 and the label of the watercourse on land of the respondent as "brook."

Decree accordingly.


[Note 1] A motion for substitution on file in this case recites a conveyance to Mr. and Mrs. Diana, but the Land Court Examiner's supplemental report as of June 2, 1978 shows record title to be in one Paul Lauricella. For purposes of this decision it has been assumed that a further rundown of the records will reveal the conveyance to the substituted petitioners.

[Note 2] Mass. App. Ct. Adv. She (1978), 178, 181.

[Note 3] Mass. Adv. She (1978), 3207.