MISC 98345

November 17, 1980

Plymouth, ss.

Sullivan, J.


Triangle Center, Inc. ("Triangle") seeks by this complaint to obtain injunctive relief against the discharge by the defendants of water on land owned by Triangle in Marshfield in the County of Plymouth. The defendants, Massachusetts Department of Public Works and its Commissioner Dean P. Amidon ("D.P.W."), [Note 1] argue that they have a prescriptive right to flow water on the plaintiff's land and that they were deprived of their right to establish such an easement in the registration proceedings in Case No. 35517 by fraud of the plaintiff. Additionally, the D.P.W. has brought a third party complaint against the Town of Marshfield alleging that it was the duty of the Town to appear in the registration case and to obtain any necessary easement in connection with the layout of the state highway, Plain Street, also known as Route No. 139, with which the complaint is concerned.

A trial was had at the Land Court on June 20 and July 1, 1980 at which a stenographer was appointed to record the testimony. All exhibits introduced into evidence are incrporated herein for the purpose of any appeal. A view was taken by the Court in the presence of counsel on October 23, 1980. On all the evidence I find and rule as follows:

1. By a taking dated October 13, 1936 and recorded with Plymouth Deeds in Book 1717, Page 56 (all recording references herein being to said Registry), the D.P.W. took on behalf of the Town of Marshfield a section of highway "beginning at Plain Street on a dividing line between the towns of Marshfield and Pembroke and extending in a general easterly direction for about two and one-half miles by said Plain Street." (See Exhibit No. 8).

2. In connection with the layout of Plain Street the D.P.W. took from Howard L. Weston 680 square feet of land. No drainage easements were taken of record by the D.P.W. from Mr. Weston. Howard L. Weston, a predecessor in title to the plaintiff, was a commercial florist and raised flowers on the locus. Thus he did not object to the flooding which occurred seasonally after the road was constructed, and which gives rise to this complaint.

3. In 1941 (Exhibit No. 9) the D.P.W. laid out and took charge of the same section of roadway as a state highway pursuant to the provisions of Chapter 218 of the Acts of 1937. As there was no further taking of any land or easements therein in 1941, the layout was not filed in the Registry of Deeds but in the Office of the County Commissioners, all in accordance with said Chapter 218. See now G. L. c. 81 §5. While the General Laws do not require such a layout without a taking to be recorded, present department policy is to so file in the appropriate registry of deeds.

4. By deed dated October 8, 1945 and recorded in Book 1893, Page 515, Howard L. Weston conveyed to James A. Logue and Mary Justine Logue, husband and wife, as tenats by the entirety, that part of the plaintiff's land on which the drainage problem exists. Mr. Logue was living at this time in a house on the premises and had leased it from Mr. Weston for approximately four years previous to the acquisition of title. He was aware of the flooding occasioned by Route No. 139.

5. Shortly after he acquired title to the property and continuing from time to time until about 1970 Mr. Logue and business associates conferred with representatives of the D.P.W. either at the property or in the Middleborough office about a solution to the drainage problem.Intercession over the years of various elected representatives and others brought no relief. In 1959 an employee of the D.P.W. computed the cost of a solution to the problem which would require piping the overflow approximately 650 feet to an existing drain to be $3,900. The present cost for such a project has been estimated to be $50,000; the increase stems from a variety of reasons including inflation, environmental concerns and the installation in the intervening years of utility pipes near the sideline of the highway so that the drainage pipe now would have to be installed in the center of the roadbed. At the time the earlier project was under consideration Mr. Logue agreed to contribute $5,000 to its cost in order to remove surface waters not related to those generated by the highway.

6. The area most affected by the run-off consists of approximately 10,000 square feet at the junction of School and Plain Streets. The topography of the reminder of the plaintiff's land slopes downward to this point, and water tends to collect there and then overspread some of the adjacent premises. The D.P.W. has two catch basins within the highway layout and a pipe leads from the most easterly of these in a northerly direction to an end wall from which it flows onto the adjoining land of the plaintiff. No part of the highway drainage system is in fact located on the plaintiff's land. (See Exhibits No. 6 and No. 27).

7. In 1966 James A. Logue conveyed to the plaintiff two parcels of land which he owned on Plain Street by deed dated September 26, 1966 and recorded in Book 3325, Page 51. The remainder of plaintiff's land was acquired by it through a separate chain of title and is not affected by the drainage problem now under consideration although it is a portion of the premises to which title was registered in Case No. 35517.

8. The conveyance by Mr. Logue to Triangle represented his contribution to a development plan for the premises in which he, James H. McCartin and Robert T. Malone, an attorney, were to participate. The plaintiff corporation was organized at this time and each of the principals was issued one hundred shares of stock (Exhibits Nos. 11, 12 and 13). Mr. McCartin is now deceased, and Mr. Malone could not be reached although summonsed as a witness by the Commonwealth (Exhibit No. 22).

9. Triangle obtained a mortgage from Weymouth Savings Bank covering the premises conveyed by Mr. Logue to it, and at the insistence of attorneys for the bank a petition was filed in this Court to register title to Triangle's entire holdings on Plain and School Streets. A plan was prepared by Stenbeck and Taylor, Inc. and filed with the petition as number 35517A which shows Plain Street as public, but not as a state highway. The plan does not show the drainage system which has caused the flooding problem, but it does indicate Massachusetts highway bounds on the southerly side of Plain Street across from locus. Subsequently, a subdivision plan was filed in the Court, but no changes material here were shown thereon. The abstract filed in the Court sets forth the original taking by the Commonwealth on behalf of the Town of Marshfield but does not contain the subsequent layout of Plain Street as a state highway since this does not appear in the records of the Registry.

10. There previously had been a registration case on the opposite side of Plain Street in which the Court had noted the Massachusetts highway bounds shown on the filed plan and sent notice to the Commonwealth. It does not appear that the Court was advised at this time, 1947, that in fact Plain Street had become a state highway. Although the decree pan was revised to show the lines of the state highway, it was still designated only as public and not as a state highway.The petitioner in the earlier case, Registration Case No. 19672, granted to the Town of Marshfield an easement to construct an end wall and drain on the land in question, and the location of the easement appears on the decree plan. An abstract of the instrument which was dated August 11, 1936 and recorded in Book 1716, Page 134, appears at sheet number 16 of the abstract in Case No. 19672. It was departmental policy that when a road was laid out for the benefit of a municipality the latter had the obligation of obtaining any easements necessary to maintain the road in good repair as set forth in G. L. c. 81 §25. It apparently was the understanding in 1936 that an easement similar to that of the landowner across the street would be obtained from Howard L. Weston, plaintiff's predecessor in title, but if Mr. Weston ever executed such a grant, it was not filed for record. Local representatives of the D.P.W. to whom Mr. Logue took his complaints about flooding originally assured him that an effort would be made to rectify the situation. Commencing in 1967, however, the district highway engineer took the position that the department had acquired prescriptive rights "to outlet the drainage system" at Triangle's property.

11. On February 28, 1968 the petition for registration was filed. No notice thereof was given to the Commonwealth. It is uncertain whether the officers of Triangle knew of the 1967 change of position of the D.P.W. although it is clear that the information had been communicated to at least some of the entities interested in developing locus. [Note 2] In any event it seems to have been common knowledge that Route No. 139 was a state highway, and the plan should have reflected that. X1(e) of the Land Court Manual of Instructions for Surveyors (both 1959 and 1971 editions, Exhibits Nos. 25A and 25B) so provides. If the Commonwealth had received notice and had appeared and answered, the question as to whether it had acquired a drainage easement by prescription, whether the drainage rights were permissive in origin and whether there had been a taking in pais, all issues now raised by the parties would have been before the Court. Absent any knowledge of the Commonwealth's possible claim the decree of registration was entered on August 5, 1970; the only encumbrances to which the petitioner's title was subject were two outstanding mortgages.

12. Mr. Logue testified that he had no knowledge of the commencement of the registration proceedings, but court records show that as an abutter he received notice thereof. It was the corporation, of course, which was the petitioner in the registration case, which still owns the premises and which brings this case. The extent of Mr. Logue's knowledge therefore appears immaterial since it seems certain that the other officers and stockholders were aware of the proceedings. Ultimately the working arrangement which led to the organization of Triangle ended, and all of its stock was transferred to Mr. Logue.

13. So far as appears from the record, the situation remained dormant from the time of the entry of the Land Court decree in 1970 until February of this year when the proposed construction of a building at the junction of Plain and School Streets again raised the question of the drainage. The D.P.W., in being queried about the situation, again claimed the benefit of a prescriptive right. (Exhibits Nos. 10 and 23A). This complaint followed.

14. The end wall is entirely locatd within the limits of Route No. 139 and is not on land of Triangle. Water is diverted through it from the highway onto land of Triangle. If the system were removed, the highway would be flooded during certain storms and at certain seasons of the year.

The registration system as set forth in Chapter 185 is designed to provide certainty in real estate titles. This purpose may at times work in a manner that appears unfair, but in weighing the various factors with which society must be concerned the General Court, in enacting Chapter 185, decided that the certainty in titles obtained from the registration system was more important than the occasional hardship this caused and that the Court's final decree, even if obtained by fraud, could not be reopened after the expiration of one year. Massachusetts General Laws, c. 185 §45 sets forth the effect of a registration decree as follows:

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 of 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. (1898, 562, §38; RL 128, §37; 1910, 560, §4; 1923, 374, §3.) (Emphasis added).

The Supreme Judicial Court expanded on this theory in Deacy v. Berberian, 344 Mass. 321 , 328 (1962) where it was said

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 every one, 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.

The Court inferred in Baker v. Kemp, 299 Mass. 490 (1938) that the failure to disclose an adverse claim which was known to the petitioner was fraud as a matter of law, but there has been no actual decision to this effect. It is true that in Killam v. March, 316 Mass. 646 , 651 (1944), the court in dealing with registered land after the final decree had been entered stated

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 ..., compel the conclusion that the Legislature did not intend to give certificate holders ... 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 acquired 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 may well be that in an appropriate case before the expiration of the year referred to in Section 45 the principle of the Killam case will be applied. In the most recent of the cases interpreting the finality of the Land Court decree State Street Bank and Trust Co. v. Beale, 353 Mass. 103 (1967) the court did not disturb the registration case but rather found the petitioner to hold title on a constructive trust for the benefit of those whose interests had been adversely affected in a fraudulent way by the registration proceedings. The ultimate goal of litigation typified by the State Street Bank case has been the prevention of the use of registration proceedings as the tool of the unscrupulous and an aid in the very fraud which Chapter 185 was designed to prevent. Of course, "fraud in obtaining the decree does not entitle the plaintiff to relief from the effect of the registration unless such fraud caused the plaintiff to be 'deprived of land' or some 'estate or interest therein.'" Wareham Savings Bank v. Partridge, 317 Mass. 83 , 85 (1944).

There is lacking from this record sufficient evidence that there was a fraud upon the Court or the Commonwealth, as distinguished from mere mistake, when Plain Street was not designated on the filed plan as a state highway. The same thing occurred in an earlier case where the plan was prepared by a different surveyor, but where the error was caught by the Court; in the present instance it appears to have been an error rather than a deliberate attempt to deprive the Commonwealth of any drainage easement it might have acquired by prescription. Perhaps the lapse of time is partly responsible; but there is nothing on this record to show that the registration proceedings were brought for this purpose; rather the report of the Land Court examiner pinpoints missing probates as being the title defect which presumably led the bank's attorneys to require registration. Even if we assume that the petitioner in registration case no. 35517 intended to cut off any drainage easement of the Commonwealth by registering title, this does not lead inevitably to the conclusion that it was intended to do this in a Machiavellian way. In addition we are faced with the statutory mandate that the decree cannot be revoked after one year and the difficulty of accommodating the State Street Bank reasoning to an easement rather than a fee.

On all the evidence I find and rule that fraud in obtaining the final decree in the registration case has not been established and that even if it had, the lapse of one year from the entry of the decree cuts off any rights of the Commonwealth to have the final decree reopened and the litigation of its rights in the locus heard by the Court.

However, this conclusion does not lead to the inevitable result that the D.P.W. now should be restrained from continuing to discharge drainage from the highway onto the plaintiff's land. It has long been the law that an action of tort at common law will not lie against a city or town for diverting the surface water from its streets in order to keep them safe, and causing it to flow upon adjoining premises, even when the surface water is drained into a culvert or watercourse from the streets or ways. The remedy is under the statute. Blaisdell v. Stoneham, 229 Mass. 563 , 565 (1918). See Woodbury v. Beverly, 153 Mass. 245 (1891); Holleran v. Boston, 176 Mass. 75 (1900). It is clear also that a public body may collect surface water in catch basins within a street, and

If the town had allowed this surface water to seep and percoate out of the catch basins, thereby flooding abutting land, no action would lie, Turner v. Dartmouth, 13 Allen 291 , 293; Kennison v. Beverly, 146 Mass. 467 ; Holleran v. Boston, 176 Mass. 75 , 77; Buerkel v. Boston, 286 Mass. 412 , 416; because the building of the catch basins would be designed to keep streets in repair and safe for travel. See Shea v. Lexington, 290 Mass. 361 , 368.

Fulton v. Belmont, 333 Mass. 64 , 68 (1955). Here the D.P.W. has gone further, but not beyond that anticipated by the court in Blaisdell, and has directly discharged surface water through a pipe in an end wall onto the plaintiff's land. See Wishnewsky v. Saugus, 325 Mass. 191 , 193 (1950). But while a landowner may have a statutory remedy for the recovery of damages, there appears to be no other remedy open to him if his damage is suffered by reason of a public improvement. It is true, of course, that there are limits to the action which a public body may take; at least without an exercise of the power of eminent domain. In Daley v. Watertown, 192 Mass. 116 (1906), for example, it was said at page 118

The right of the town to construct the way under the order of the commissioners could give it no right to lay a drain or dig a ditch through the land of a private owner, for the purpose of conducting water and discharging it there. Franklin v. Fisk, 13 Allen 211 . No one under the highway act could have an assessment of damages for the probable consequences of such a trespass, for the trespass could not be anticipated, and it would not be a natural and legitimate consequence of the laying out of the street.

Conversely Holbrook v. Massachusetts Turnpike Authority, 328 Mass. 218 (1958) illustrates the unusual injury compensable as occasioned by a taking although the land affected was not itself taken.

In the present case there is no question that the Commonwealth could have taken a drainage easement pursuant to G. L. c. 83 §4 when Route No. 139 was originally laid out or when it was taken as a state highway. Practice then and perhaps now (see G. L. c. 81 §25) dictated that the Town acquire the necessary easements from the adjoining owners and that they not be included within the order of taking. Even if not so included, such action was compensable under G. L. c. 79 §10 which reads as follows:

When the real estate of any person has been taken for the public use or has been damaged by the construction, maintenance, operation, alteration, repair or discontinuance of a public improvement or has been entered for a public purpose, but such taking, entry or damage was not effected by or in accordance with a formal vote or order of the board of officers of a body politic or corporate duly authorized by law, or when the personal property of any person has been damaged, seized, destroyed or used for a public purpose, and by such taking, damage, entry, seizure, destruction or use he has suffered an injury for which he is entitled to compensation, the damages therefor may be recovered under this chapter. If the injury was caused by or on behalf of the commonwealth or of a county, city, town or district, the officer or board of officers under whose direction or control the injury was caused shall award the damages upon the petition of any person entitled thereto.

Unfortunately from the plaintiff's viewpoint the statute of limitations has run. It is arguable, of course, that each serious rainstorm constitutes a new trepass for which the Commonwealth is liable under section 10, but I have been unable to find any authority to this effect, and it is difficult to find that an action now can be commenced for damages when the installation of the drainage system which has plagued the plaintiff occurred over forty years ago. Even if the promises of the Department's employees to rectify the situation can be viewed as an estoppel (and query if the sovereign Commonwealth indeed can be estopped), at least ten years have elapsed since any department employee agreed to remedy the problem. That is just too long for the plaintiff to have waited before commencing suit.

Even if I am wrong and there is liability for flowing the plaintiff's land, it is impossible on this record to distinguish the damages which flow from the discharge through the end wall and that attributable to the topography of the plaintiff's premises and the removal of the topsoil therefrom.

Nor can the Commonwealth be restrained from the further discharge of water onto the plaintiff's land since this is done to keep the highway in repair and safe for travel.

On all the evidence I therefore find and rule as follows:

The final decree in Land Court Registration Case No. 35517 was not procured by fraud; accordingly the Commonwealth does not have a drainage easement by prescription, grant or otherwise, affecting the registered land; the Commonwealth does, however, have the right to discharge water from Route No. 139 onto said land in order to preserve the safety of the highway; the exercise of this right was a taking in pais for which the plaintiff or its predecessors were entitled to compensation under Chapter 79; the time for bringing such a complaint has expired; and the Court has no authority to enjoin the D.P.W. from continuing to use the present drainage system or to require its relocation.

Decree accordingly.


[Note 1] The Commonwealth of Massachusetts was not named as a party, presumably because of the doctrine which requires its consent to be impleaded in its own courts.

[Note 2] This position was stated in a letter to McCartin Homes, a copy of which supposedly went to Mr. Logue (Exhibit No. 2c). In any event he must have been aware of the Department's position by 1970.