The decision dated November 17, 1980 made by this Court was reversed on appeal by the Supreme Judicial Court and was remanded so that this Court might determine whether ". . . the additional drainage onto Triangle's land attributable to the construction and maintenance of the road causes identifiable and more than de minimis damage . . . " Triangle Center, Inc. v. Department of Public Works, 386 Mass. 858 , 864 (1982). If so, an injunction against its continuation would be appropriate, the Supreme Judicial Court has said, "leaving the DPW to make other drainage arrangements or to take an easement. If on the other hand, that drainage causes only de minimis damage to Triangle's land, an injunction would be inappropriate."
The road in question is Massachusetts State Highway Route 139 (Plain Street) in Marshfield in the County of Plymouth. At the original trial it appeared that the drainage system for the highway was located entirely within the layout but discharged water onto the adjoining land then owned by Triangle Center, Inc. ("Triangle"). The taking initially made by the Commonwealth on behalf of the Town of Marshfield did not include a taking of drainage easements. Supposedly they were to be obtained voluntarily, but there is no evidence extant as to whether the plaintiffs' predecessors in title ever executed a grant covering the present drainage onto the locus. The Commonwealth subsequently in 1941, laid out and took charge of the pertinent section of the roadway as a state highway, Route 139. Thereafter title to the land was registered in 1970, but no notice was given to the Attorney General since neither the filed plan, the petition to register, nor the abstract of title suggested that Plain Street was a state highway. In my decision I did not reach the question as to whether the Commonwealth had acquired a drainage easement by prescription by adverse use from 1936 to the date of the entry of the registration decree since I held that the entry of the decree foreclosed any such drainage rights, fraud in this pre Kozdras [Note 2] case not having been established. I did find, however, a common law right on the part of the Commonwealth to continue the flow in order to safeguard the public way.
The Supreme Judicial Court did not reach the question as to whether a) there was fraud on the facts of this case, or b) if there were, the reasoning of State Street Bank and Trust Company v. Beale, 353 Mass. 103 (1967) or Kozdras would apply to an easement rather than a fee. Rather the Court held, as noted above, that if the additional drainage occasioned by the construction and maintenance of a public way caused identifiable and more than de minimis damage, and no drainage easement was taken, the landowner was entitled to protection.
A trial was held at the Land Court on November 18, 1982 to hear evidence on this aspect of the case, i.e. whether drainage onto the plaintiffs' land attributable to the construction and maintenance of Route 139 causes identifiable and more than de minimis damage. A stenographer was appointed to record and transcribe the testimony. At the trial four witnesses testified for the plaintiffs and one for the Commonwealth. In addition to the exhibits previously introduced nine additional exhibits (some of which embraced several parts) were introduced at the 1982 trial. When I originally assigned the matter for further hearing, I stated in a memorandum that I would take a view during inclement weather. I subsequently decided that this was unnecessary.
On all the evidence I find and rule as follows:
1. Baybank Norfolk County Trust Company ("Baybank") has now constructed a branch bank on Lot 6 on Land Court Subdivision Plan No. 35517C.
2. Baybank originally had an option with Triangle to purchase a 42,000 square foot parcel of land at the corner of Plain and School Streets, but it subsequently rearranged its commitment after the Marshfield Board of Appeals required town and state approval for resolution of the drainage question on said parcel of land as a condition of its approval of Baybank's site plan.
3. At the time Baybank acquired title to Lot 6 on which the bank building was constructed, it was granted an easement over Lot 10 on Land Court Subdivision Plan No. 35517D for access to a town way, School Street. Said Lot 10 appears to be the major portion of the land on which Baybank had held the option. The heavy traffic count on Route 139 was responsible for the safety officer's recommendation, adopted by the Board of Appeals, that access to and egress from the bank property be from differet roads.
4. Subsequently Baybank acquired title to said lot 10.
5. A dry well was installed by Baybank on its property at an approximate cost of $10,000, and drains were placed on Lot 6. Lot 10 was landscaped, fill was added, a sod lawn laid and flowers and other plantings made. The driveway affording egress from the bank building to Plain Street is shown on Plan No. 35517D as an easement thirty-three feet in width roughly parallel to the northeasterly boundary of Lot 10. Its grade is higher than that of the remainder of the lot lying southwesterly thereof. Baybank considered the construction of a cement retaining wall to contain the waters in a pool at the corner of School and Plain Streets but rejected the concept, after consultation, as having the potential of an attractive nuisance, dangerous to a child.
6. During heavy rainfalls water accumulates on Lot 10 at the corner of School and Plain Streets and encompasses a large area, the depth and extent of the "ponding" depending on the rainfall. The improvements made by the bank at a cost of $40,000 have been damaged.
7. The locus absorbs the water which disappears in approximately one week but which dissipates more slowly in the winter and spring when the ground is frozen.
8. The drainage system for Route 139 at the locus consists of three catch basins which direct the water to the endwall within which is a drainage pipe from which water runs onto land now of Baybank.
9. The locus also is subject to flooding from its topography which is lower than that of adjoining School Street, the lands on the opposite side thereof and the driveway constructed to afford access to School Street. The effect of the latter is to make Lot 10 a pocket between the three "streets" and the bank parking lot. Flooding also may be increased from the past removal of top soil.
10. Despite the other sources of flow and the characteristics both natural and man made which make locus more vulnerable to "ponding" a substantial amount of the flooding is attributable to the highway discharge. An expert witness testified that approximately sixty-five percent of the water entering the parcel was from the "in-street" drainage on Route 139.
11. The characteristic flooding has made the site less valuable. The option agreement referred to in paragraph 2 (Exhibit No. S9) hereof was admitted into evidence solely on the question of the de minimis nature of the damage attributable to the Route 139 runoff. The purchase price set forth therein for the corner lot was $80,000 or approximately $2 per square foot. Baybank at some stage in the negotiation, perhaps before the price was fixed, learned of the drainage problem, but the officer handling the matter believed the flooding could be controlled. There was testimony that the present value of Lot 10 with inflation was $1.25 to $1.50 per square foot; There was no evidence as to the price at which Lot 6 and subsequently Lot 10 in fact were purchased.
I do not accept the figures, either as to the percentage of the flooding occasioned by the drainage from the highway or the decrease in the value of Lot 10 by reason of the "ponding", as absolute since it is difficult from the history of the site, the sources of drainage, the topography, the type of soil and the construction in adjoining lands to apply mathematical formulae to the various causes of the flooding. In other words it appears that there are other factors which contribute to the flooding of Lot 10 in addition to the drainage from Route 139. Nonetheless it is clear, and I so find and rule, that the construction and maintenance of the road causes identifiable and more than de minimis damage. I further find and rule that the construction and maintenance of the road is the major, although not sole, cause of the flooding and that the damage which is occasioned thereby is not de minimis. It prevents the lot from being built upon, has decreased its market value and has damaged the lawn and plantings installed thereon.
As pointed out by Justice O'Connor, the Commonwealth is not without a remedy. It now can proceed to take a drainage easement to permit the discharge of waters from the highway onto the adjoining land of Baybank. Alternatively it can relocate the present drainage system of Route 139 at locus to divert the runoff to another location where there may already be appropriate facilities, both physically and legally. The decision as to the course of action to be followed rests with the Executive Branch of the Commonwealth. If, however, proceedings have not been commenced within one hundred twenty (120) days from the date of this decision to perfect one of such methods, i.e. either a) a taking is filed for registration at the Plymouth County Registry District of the Land Court of a drainage easement (or the fee if the Department of Public Works so elects) to permit the discharge of waters onto adjoining land or b) the steps preliminary to the actual construction of a relocated drainage system have been instituted, then a permanent injunction will be granted restraining the Commissioner of Public Works, his agents, servants and employees from discharging surface waters from Route 139 through the present drainage system onto land of Baybank.
[Note 1] Baybank Norfolk County Trust Company's motion to intervene as a party plaintiff was allowed on October 6, 1982 upon its reprsentation that on April 14, 1981 it purchased the property owned by Triangle Center, Inc. which is the subject of this dispute and that any injunction would have to be issued in its name.
[Note 2] Kozdras v. Land/Vest Properties, Inc., Mass. Adv. Sh. (1980) 2409.