ANDREW PUTNEY and KIMBERLY A. PUTNEY v. JOSEPH G. O'BRIEN and SINEAD O'BRIEN.

INTRODUCTION

This case arises from a dispute between two neighbors in Boxford, Massachusetts, the Putneys (Plaintiffs) and the O'Briens (Defendants), over the channeling of accumulated surface water [Note 1] from the Putney land onto the O'Brien land. The Putneys initiated this lawsuit on November 14, 2014, seeking a declaration that they have a prescriptive easement to continue draining surface water onto the O'Brien property via an existing drainage system which outlets through a pipe in the stone wall which separates the Parties' two properties. They also seek to have the O'Briens enjoined from blocking that pipe outlet. The O'Briens answered and counterclaimed on December 9, 2014, alleging trespass and nuisance arising from the allegedly unauthorized channeling of water onto their property.

A trial was held on November 29, 2017. Six (6) witnesses testified for the Plaintiffs: Plaintiffs Kimberly Putney and Andrew Putney; Michael Segien, a former resident of Defendants' property; Dean Presutti, a former owner of Plaintiffs' property; Paul Clinton, a long- time neighbor; and Steven Bernstein, P.E., who was qualified and admitted as an expert witness. Only Defendant Joseph O'Brien testified for the Defendants.

The Parties agreed to eight facts prior to trial. [Note 2] At trial, a total of fifty-four agreed exhibits were admitted into evidence. Following the presentation of evidence, the court agreed to take a view in the spring, once the ground was thawed and seasonal flooding would be readily apparent. The view took place on April 26, 2018. On May 31, 2018, the Parties filed their respective proposed findings of fact and rulings of law together with post-trial briefs, at which time the court took the matter under advisement.

As discussed below, I now find and rule that the Putneys have the benefit of a prescriptive easement to discharge the surface water which naturally accumulates in their front yard, by channeling the excess water through their existing drainage system to the O'Brien land. The O'Briens will thus be enjoined from blocking the pipe outlet.

However, I further find and rule that the prescriptive easement right to discharge the naturally accumulated surface water onto the O'Brien land through said drainage system does not include the right to also discharge via that system: (a) water pumped from the Putneys' basement, (b) water collected from their roof gutters, or (c) water periodically emptied from their pool. On the O'Briens' counterclaim for trespass, therefore, I find that the Putneys failed to show that the additional water introduced into the drainage system directly from these sources falls within the scope of the prescriptive drainage easement. Consequently, I find that such additional water discharge overburdens the prescriptive drainage easement established. As neither party presented evidence to support an award of damages, I deem that injunctive relief is the appropriate remedy to redress the blocked pipe and the continuing trespass, as well as the nuisance claim.

FINDINGS OF FACT

Based on the pleadings, the parties' statement of agreed facts, the admitted exhibits, the trial testimony, and my view of the properties, [Note 3] I find the following pertinent facts, reserving certain details for my discussion of specific legal issues.

Plaintiffs Andrew Putney and Kimberly A. Putney ("the Putneys") own the single-family residential property at 41 Glen Forest Drive in Boxford, Massachusetts ("the Putney Property" or "the Glen Forest Property"). [Note 4] The Defendants Joseph G. O'Brien and Sinead O'Brien ("the O'Briens") own the single-family residential property at 15 Balmoral Drive in Boxford ("the O'Brien Property" or "the Balmoral Property"), which directly abuts the Putney Property. A stone wall runs along the shared boundary between the two Properties.

The Glen Forest Property was originally developed as Lot 12 of a 22-lot residential subdivision approved in 1959, known as "Herrick Woodlands." The Balmoral Property was originally developed as Lot 84 of an 88-lot subdivision approved in 1968, known as "Boxford Olde Farms." [Note 5] The Putneys acquired the Glen Forest Property in 2010 from Dean and Kimberly Presutti, who themselves had owned the Property for nearly ten years. The O'Briens acquired the Balmoral Property in 2012.

The Glen Forest Property is generally uphill from the Balmoral Property. Surface water flows overland toward both Properties from other, uphill properties lying to the north. When the Putneys acquired the Glen Forest Property in 2010, a combination open and piped drainage system was already in place on the Property, directing excess surface water onto the Balmoral Property through a pipe outlet in the stone wall that marks the boundary between the two Properties. During heavy rains, excess surface water flowing overland from the neighboring uphill property at 37 Glen Forest Drive, initially collects in a vegetated basin at the east corner of the Glen Forest Property front yard. When the water collected in the basin reaches a depth of approximately one foot, it overflows through an open-ended, cast iron pipe or culvert under the Putneys' driveway, and into a second, depressed area (hereinafter, the "swale") directly in front of the Putneys' house. The surface water that collects in the swale then drains into a 6-inch diameter plastic pipe (known as an HDPE or Spirolite pipe), which runs a few inches below the ground for approximately 54 feet (hereinafter, the "HDPE pipe") to its outlet in the base of the stone wall (the "outlet"). The outlet then discharges the collected surface water onto the Balmoral Property, where it pools in a wooded, wetland. The density of the brush in the area near the outlet varies with the seasons. A portion of the HDPE pipe outlet is nevertheless visible from a short distance away, and the flow of water from the outlet is audible.

The seasonal surface water that naturally accumulates on the Glen Forest Property during heavy rains, has been channeled through the drainage system and outlet since at least the mid-1980's. At some undetermined point in the past, additional waters from a sump pump in the Glen Forest Property basement, and waters collected in the rain gutters on the Glen Forest Property roof, were also directed into the swale, adding to the naturally accumulated surface water channeled through the HDPE pipe that is ultimately discharged through the outlet and onto the Balmoral Property. Also, each fall, the Putneys empty approximately three inches of water from their above-ground pool before winterizing it, by draining the water directly into the basin.

In the fall of 2013, Joseph O'Brien discovered the HDPE pipe's outlet in the stone wall while clearing brush on his Property in the vicinity. To prevent water flowing onto his land, he blocked the outlet by plugging it with cement. As a result of the outlet being blocked, water began to pool in the Putneys' front yard during heavy rains, as water accumulating in the swale and HDPE pipe backed up. Eventually, the backed-up water infiltrated and flooded the Putneys' basement. The Putneys attempted to resolve the basement flooding problems by pumping the water out of the basement directly into the swale at the front of their house, and placing an outside, above-ground sump pump in the swale to redirect the water through a hose toward the Balmoral Property and toward the street. [Note 6] The Putneys also initiated this lawsuit, seeking to establish their prescriptive rights to channel excess water from their Property onto the Balmoral Property via the outlet in the stone wall.

DISCUSSION

The Prescriptive Drainage Easement

If a landowner collects and discharges surface water continuously, openly, and adversely under a claim of right for more than twenty years, a prescriptive easement to continue such discharge may accrue. Trenz v. Town of Norwell, 68 Mass. App. Ct. 271 , 278-79 (2007). As in all prescriptive use cases, the burden to prove the existence of a drainage easement rests with the claimant. See White v. Hartigan, 464 Mass. 400 , 413 (2013); Rotman v. White, 74 Mass. App. Ct. 586 , 589 (2009) ("If any element remains unproven or left in doubt, the claimant cannot prevail."); Boothroyd v. Bogartz, 68 Mass. App. Ct. 40 , 44 (2007). The claimant must show "the (1) continuous and uninterrupted, (2) open and notorious, and (3) adverse use of another's land (4) for a period of not less than twenty years." White, 464 Mass. at 413; see also G.L. c. 187, § 2 ("No person shall acquire by adverse use or enjoyment a right or privilege of way or other easement from, in, upon or over the land of another, unless such use or enjoyment is continued uninterruptedly for twenty years.").

For the reasons discussed below, I find that the Putneys have carried their burden to establish that they hold a prescriptive easement to channel naturally accumulated surface water from their land onto the Balmoral Property via the drainage system outlet in the stone wall. As will be further discussed, however, this prescriptive easement does not include the right to drain through that outlet additional water pumped into system from the Putneys' basement, drained into the system from the Putneys' pool, or directed into the system from the roof gutters on the Putneys' house, as the evidence does not establish that such waters have been added to the naturally accumulated surface waters channeled by the drainage system for the requisite twenty years. See Trenz, 68 Mass. App. Ct. at 278.

1. Open and Notorious

The channeling of water onto the Balmoral Property via the HDPE pipe outlet was open and notorious. "The purpose of the requirement of 'open and notorious' use is to place the true owner 'on notice of the hostile activity of the possession so that he, the owner, may have an opportunity to take steps to vindicate his rights by legal action.'" Lawrence v. Town of Concord, 439 Mass. 416 , 421 (2003) (quoting Ottavia v. Savarese, 338 Mass. 330 , 333 (1959)). The open and obvious requirement protects uses "sufficiently pronounced so as to be made known, directly or indirectly, to the landowner if he or she maintained a reasonable degree of supervision over the property." Boothroyd, 68 Mass. App. Ct. at 44.

Although most of the HDPE pipe runs underground, its outlet in the stone wall is visible from at least a five-foot distance to anyone who approaches that location on the Balmoral Property side of the stone wall. Defendant Joseph O'Brien confirmed this at trial and, indeed, testified that he had no difficulty locating the pipe (even though no water was then flowing through it at the time) when he started clearing the wooded area near the wall.

I credit the uncontroverted testimony of two lay witnesses – one, a former resident of the Balmoral Property and one, a long-time resident of a neighboring property – who were aware of water being discharged onto the Balmoral Property through the outlet since the mid-1980's. Michael Segien lived at the Balmoral Property from September, 1989 until approximately 2007 (from ages 3 to 21). As a child, he would play in the water that collected in the two depressed areas on the Glen Forest Property, and would also play in the water flowing onto the Balmoral Property from the pipe outlet in the stone wall. Mr. Segien recalled hearing the gurgling of water from the outlet as he played in and around the wooded area on the Balmoral Property, and seeing water flowing from the outlet as he approached the stone wall. Mr. Segien identified the outlet shown in recent photographs as being the same pipe outlet that he observed as a child. [Note 7]

Paul Clinton has lived across the street from the Glen Forest Property since April, 1984. Although Mr. Clinton never saw the pipe or its outlet, he had assumed a pipe existed in the area based on (1) his observations of the surface water on the Glen Forest Property, flowing from the basin, through the culvert under the driveway, and into the swale, and (2) having heard the water gurgling as it was ultimately discharged onto the Balmoral Property. Although Mr. Clinton could not testify to when the drainage system on the Glen Forest Property was first installed, he did testify that, at least during the time he has lived across the street, he never observed the installation, removal, or replacement of any pipes on the Glen Forest Property.

As is clear from Joseph O'Brien's discovery of the pipe outlet, Mr. Segien's testimony about his childhood play, and Mr. Clinton's observations from his walks in the vicinity, a landowner could readily learn of the HDPE pipe outlet's existence simply by walking near the boundary of the Balmoral Property. I thus find that the facts in evidence demonstrate that an owner maintaining a reasonable degree of supervision over the Balmoral Property could readily learn that water was being discharged on the Property through the outlet pipe, and could fairly deduce that the water was flowing from the Glen Forest property. First, the area of the Balmoral property surrounding the HDPE pipe outlet is prominently wet – and has been for decades – with several large areas of standing water present during the wet seasons. Second, the pipe outlet is exposed above ground and there is no evidence that the Putneys or their predecessors have ever concealed the outlet. [Note 8] Moreover, the discharge of water through the outlet is audible to someone walking or standing nearby. Third, the location and orientation of the pipe outlet, coming directly out of the stone wall between the Balmoral Property and the Glen Forest Property, reasonably suggests that the pipe is draining from the higher elevation Glen Forest Property. This suggestion is buttressed by the fact that surface water collecting in the basin and the swale during the wet seasons is visible from the street in front of the Glen Forest Property.

That the O'Briens, their predecessors, or even the predecessors to the Putneys, did not know for a fact that the HDPE pipe existed underground, or know exactly how surface water traveled toward the outlet in the stone wall is of no moment. "'It is not necessary that the use be actually known to the owner for it to meet the test for being notorious.'" Boothroyd, 68 Mass. App. Ct. at 44 (citations omitted).

The facts proven at trial demonstrate that the owners of the Balmoral Property could have readily discovered the HDPE pipe outlet, determined the source of its water discharges from the Glen Forest Property, and taken steps to secure their own rights by seeking legal recourse before the twenty year prescriptive period had run. See Lawrence, 439 Mass. at 421. On all the evidence, therefore, I find that the channeling of water through the pipe outlet and onto the Balmoral Property was open, obvious, and notorious.

2. Adverse Use

Hostile intention is not necessary to make a use adverse. A use unexplained for twenty years "will be presumed to be under claim of right and adverse." Rotman v. White, 74 Mass. App. Ct. 586 , 589 (2009). Here, there is no easement of record authorizing the discharge of surface water from the Glen Forest Property onto the Balmoral Property. And there is no suggestion that the discharge of surface water through the outlet since the mid-1980's has been permissive. In short, there is nothing in the record before this court to suggest that the use has been anything but adverse, and no Party asserts otherwise.

3. Continuous for Twenty Years

The Putneys have established through their own testimony, and that of their predecessor-in-title, Dean Presutti, that the present drainage system, including the HDPE pipe and outlet, has been in use since at least September of 2000 when the Presuttis acquired the Glen Forest Property. This accounts for only 14 years of use before this suit was filed. [Note 9] Although the Plaintiffs were unable to offer any direct evidence of exactly how long the drainage system was in use before 2000, so as to establish when the twenty-year prescriptive period began to run, I credit the uncontroverted testimony of Mr. Segien, who observed and heard water discharging onto the Balmoral Property via the outlet, and personally observed water collecting in the basin and the swale during his childhood years living on the Balmoral Property in the 1990's. I similarly credit the uncontroverted testimony of Mr. Clinton, who has personally observed the water flowing from the basin, through the culvert, and into the swale, and has heard water gurgling in the vicinity of the stone wall during the time he has lived in the neighborhood, starting in 1984. I am convinced by their testimony that the pipe outlet was used to discharge collected surface water onto the Balmoral Property for at least thirty years before this lawsuit was commenced.

In addition to calling Mr. Siegen and Mr. Clinton as witnesses, the Putneys also called Mr. Steven Bernstein, a registered professional engineer, as an expert. Mr. Bernstein estimated that the drainage system on the Glen Forest Property was likely installed when the home was built in 1961. He based his conclusion on his expert opinion that the topography of the Glen Forest Property and surrounding properties would necessitate such a drainage system to avoid flooding the home's basement. Although he concedes that the HDPE pipe currently in place could not have been original to the home (because HDPE pipes were not available or in common usage before the 1970's), he testified that he discovered fragments of an Orangeburg pipe in the same location where the HDPE pipe currently runs from the swale. Based on Orangeburg pipe being the industry drain pipe standard in the 1960's, he deduced that the fragments were from the original drainage pipe installed in 1961. He concluded that the Orangeburg pipe likely failed at some point and was replaced with the HDPE pipe as the industry standard in the 1970s. [Note 10]

I regard Mr. Bernstein's testimony as to the age of the HDPE pipe to be no more than educated speculation. However, I need not rely upon Mr. Bernstein's testimony to find that the drainage system on the Glen Forest Property has been in use for well over the twenty years required for a prescriptive easement, where the uncontroverted testimony of the Plaintiffs' fact witnesses demonstrated the discharge of surface water through the existing drainage system on the Balmoral Property since at least 1984. I thus conclude on all the evidence that the drainage system in use today on the Glen Forest Property has been in use to discharge naturally-accumulated surface water onto the Balmoral Property through the outlet since at least the mid-1980's and, therefore, for more than the requisite twenty years for a prescriptive easement.

Scope of the Drainage Prescriptive Easement

In addition to proving that they have continuously, openly, and adversely discharged surface waters collected through their drainage system onto the Balmoral Property for at least the required twenty-year period, the Putneys also have the burden to show that they have not expanded the discharge of water beyond that which gave rise to the prescriptive easement — that is, that their prescriptive easement "rights are 'extensive enough to authorize the amount and character of the use which [they have] made,' and that it did not overburden the easement." Trenz, 68 Mass. App. Ct. at 279 (quoting Swensen v. Marino, 306 Mass. 582 , 583 (1940)). As a practical matter, this means that the Putneys have the burden to demonstrate that the volume of discharges were consistent throughout, the prescriptive period. See, e.g., Gentili v. Town of Sturbridge, 26 LCR 28 (2018) (Vhay, J.). Although some variation in the discharges may occur over time, "'the variations in use cannot be substantial.'" Trenz, 68 Mass. App. Ct. at 278 (quoting Glenn v. Poole, 12 Mass. App. Ct. 292 , 293 (1981)). But "it is clear that ordinarily one who begins with a trickle of water at the beginning of the twenty years cannot acquire the right to flood his neighbor's land with a brook at the end of that time, even though the flow remains in the same location." Fortier v. H.P. Hood & Sons, 307 Mass. 292 , 299 (1940). "If the evidence shows that as a result of [later] events…the flow of water exceeded the flow for which the [landowner] had an easement by prescription, the easement must be limited to the uses that existed prior to those events." Trenz, 68 Mass. App. Ct. at 278.

Here, the evidence adduced at trial was sufficient to show that surface water naturally flows from upland properties and accumulates in the basin, and that the overflow from the basin is channeled through the Glen Forest Property drainage system and ultimately discharges via the pipe outlet onto the Balmoral property. Any seasonal variation which may have occurred over time in the discharge of such naturally-accumulating surface water would not be so "substantial" as to overburden the prescriptive easement. See Trenz, 68 Mass. App. Ct. at 278. [Note 11]

However, the evidence was insufficient to establish that the additional water directed into the system from the roof gutters and from the basement sump pump to ultimately discharge through the outlet has continued for at least twenty years. There is simply no evidence of when the gutters were placed on the home or when the roof drainage began to be directed from the gutters into the swale to enter the HDPE pipe.

Similarly, although the evidence is sufficient to show that the basement sump pump has been in place and operating since 2000, when the Putneys' predecessors in title acquired the Glen Forest Property, there was no evidence that the sump pump was operating and directing water into the swale prior to that time. Although Mr. Segien testified to hearing the operation of a sump pump on the Glen Forest property during his childhood, the sump pump he referred to was the one at the back of the Putneys' house, closer to the driveway on the Balmoral property. [Note 12] It was not the sump pump that drains to the swale in front of the Putneys' home.

The O'Briens, moreover, introduced evidence calling into doubt whether the sump pump has existed for at least twenty years. They introduced an Application for Permit to Perform Electrical Work, dated May 11, 1998 and filed with the Boxford Department of Public Safety on behalf of Mary Lou Mattoon, a predecessor-in-title to the Putneys. The application is for a permit to install a branch electrical circuit for "sump pumps" and a "dehumidifier" in the Glen Forest Property basement. Although the existence of the 1998 electrical work permit application does not definitively establish that the sump pump that directs water into the swale was first installed in 1998, the logical inference from this solitary piece of evidence is that the subject sump pump was not already operating before May, 1998. And the Putneys were unable to offer any evidence to contradict such inference.

Finally, the evidence is that the Putneys periodically drain water from their above-ground pool into the basin when they prepare to close the pool for the winter. The Putneys testified that the water they drain from their pool into the basin never reaches the basin overflow outlet, and therefore does not flow through the drainage system to the outlet. Whether or not this is so, there is no evidence that any predecessor owner of the Glen Forest Property also drained pool water into the basin, and thus no proof that this practice has continued for the twenty-year prescriptive period. Thus, if water drained from the pool into the basin were ever to enter the drainage system and add to the water discharged through the pipe outlet, the additional water would not be within the scope of the prescriptive easement.

Because the Putneys failed to carry their burden to show that the water has been directed into the drainage system from the basement sump pump, the roof gutters, and the pool for at least twenty years, I find that the prescriptive easement to channel accumulated excess surface water onto the Balmoral Property via the drainage system and outlet does not include the right to discharge water from these additional sources.

Trespass & Nuisance

To the extent that the Putneys have overburdened their prescriptive easement by directly adding water from the basement sump pump, the pool, and the roof gutters to the naturally-accumulated surface water channeled through their drainage system onto the Balmoral property, the O'Briens prevail in their counterclaims for trespass and nuisance. See Trenz v. Town of Norwell, 74 Mass. App. Ct. 1117 , *4 (2009) (Rule 1:28 Decision) (harmful water flows that fall outside the scope of prescriptive drainage easement support nuisance claim). On this trial record, there is no basis for determining to what extent the O'Briens have been harmed by any additional water directed into the drainage system so as to determine monetary damages, and the O'Briens have not argued for damages. Therefore, I find that the appropriate remedy is to enjoin the Putneys from continuing to drain water from their pool, roof gutters, and basement sump pump directly into the drainage system which outlets onto the Balmoral Property. [Note 13]

With respect to the O'Briens' interference with the Putneys' prescriptive drainage easement by blocking the pipe outlet, the evidence is sufficient to show that the blocking of the outlet resulted in water pooling back up into the Putney yard and into their basement, at least during seasonal rains. However, there is no evidence on which to determine the extent of harm caused to the Putney Property so as to calculate money damages. Therefore, I have determined that the appropriate remedy in the circumstances is to order the O'Briens to unblock the pipe outlet, and to also enjoin them from further interfering with the flow of water through said outlet.

CONCLUSION

Based upon the facts I have found, and for the reasons discussed, I find and rule that the Putneys have a prescriptive easement, appurtenant to the Glen Forest Property, to discharge through the outlet onto the Balmoral Property naturally accumulated surface water collected in the existing drainage system on the Glen Forest Property; but that such prescriptive easement does not include the right to discharge additional water channeled directly into the drainage system from other sources, including the Putneys' basement sump pump, pool, or roof gutters. Accordingly, the Putneys, and their successors and agents, shall be enjoined from overburdening the prescriptive easement by discharging through the outlet additional water channeled from other sources directly into the existing drainage system on their property. I further find and rule that the O'Briens have impermissibly interfered with the Putneys' prescriptive easement rights by blocking the outlet with cement. Accordingly, the O'Briens shall be ordered to remove the cement which they placed in the outlet, and the O'Briens, and their successors and agents, shall be enjoined from further interfering with the flow of water through said outlet.

Judgment shall enter accordingly.