FULVIO J. GENTILI and GINA MADORE, as Trustees of the RENATO GENTILI TRUST v. TOWN OF STURBRIDGE DHC, LLC

Plaintiff F. Joseph Gentili has fond memories of the days when, starting around 1956 (Joseph was nine then), his father Renato would take him to land that Renato owned along U.S. Route 20 in Sturbridge, Massachusetts. Sturbridge was the next town over from where Joseph lived, in Southbridge. At one end of Renato's Sturbridge property lay a grassy, triangular field. Joseph remembers the field as largely open. It may, for a time, have had a sand pit in the middle. Route 20 and a public street, Hall Road, ran along the sides of the field. They eventually intersected at a place that formed one corner of the triangular field.

While Renato conducted business elsewhere, Joseph and other children would play in the field. Sometimes they played baseball or stickball. Sometimes they played Cowboys and Indians, or pretended that they were on combat missions. What they didn't do is play in traffic: Renato strictly warned Joseph not to go anywhere near Rt. 20 or Hall Road, and Joseph did as he was told.

Joseph ended his visits to the field around the time he entered high school, in the mid-1960s. Once he obtained his driver's license, Joseph saw his family's Sturbridge property only as motorist along Rt. 20 or Hall Road. Joseph eventually left Southbridge to attend college and law school, and thereafter lived in many places besides Southbridge or Sturbridge.

Renato Gentili sold most of the family's Rt. 20 land, keeping only the triangular field (now called 209 Charlton Road, "Charlton Road" being another name for Rt. 20). The family eventually formed the Renato Gentili Trust, and after Renato's death, the Trust came to own 209 Charlton Road. Joseph has been a trustee of the Trust since 1983.

In 1997, the Trust thought about doing something with 209 Charlton Road. By 1997 the property was no longer a field; it was now somewhat forested. Much of it was lower than Rt. 20 and Hall Road. There were also drainage structures nearby. The Trust thus asked the Sturbridge Conservation Commission in July 1997 to determine whether 209 Charlton Road was subject to regulation under the Massachusetts Wetlands Protection Act, G.L. c. 130, § 40 (the "Act"). The Commission responded in August 1997 that there were no wetlands on 209 Charlton Road.

Six years later, Joseph heard shocking news: the Commission had found that there was a "clearly observed water course which runs under Hall Road, across the subject property, [and] exits via a culvert into a wetland across Route 20. . . ." The Commission said that the water course was a "stream" that appeared on USGS topographic maps, and that despite what the Commission had determined in 1997, there were wetlands on 209 Charlton Road sufficient to make any development there subject to the requirements of the Act.

The central questions in this lawsuit, filed nearly twelve years after the Trust first learned of the wetlands on 209 Charlton Road, are whether the Town of Sturbridge, which owns Hall Road, and Sturbridge DHC, LLC, which owns an uphill property across Hall Road from 209 Charlton Road, have the right to continue sending water towards 209 Charlton Road. To resolve this dispute, the Court held a trial on December 8, 11, and 12, 2017. The Court also viewed the Trust and Sturbridge DHC's properties and the stretch of Hall Road that separates those properties. Based on the parties' admissions, the trial testimony, the exhibits received into evidence, and the Court's view, the Court finds these facts:

1. Defendant/plaintiff-in-counterclaim Sturbridge DHC, LLC owns and operates an apartment complex known as Sturbridge Meadows, located at 80-98 Hall Road in Sturbridge, Massachusetts. Sturbridge Meadows consists of ten buildings that are on the north side of Fisk Hill.

2. Hall Road runs along the northern (downhill) side of Sturbridge Meadows. Older maps call Hall Road "Charlton Street."

3. Hall Road is a public way. The Town (also a defendant/plaintiff-in-counterclaim in this action) owns and maintains Hall Road and its associated right of way. There is a Town-owned, 24-inch corrugated metal culvert (the "New Town Culvert") that runs northwest/ southeast beneath Hall Road. The New Town Culvert starts on the southern (Sturbridge Meadows) side of Hall Road and discharges on the northern side of Hall Road into 209 Charlton Road.

4. 209 Charlton Road used to be part of a larger parcel owned by Gentili family that extended west of 209 Charlton Road, between Hall Road (on the south) and U.S. Route 20 (to the north). Various commercial establishments occupy the areas west of 209 Charlton Road. The closest one, immediately west of 209 Charlton Road, is a drive-through fast-food restaurant, Wendy's.

5. The Town first built a culvert (the "Old Town Culvert") in the vicinity of the New Town Culvert in the 1930s. The Old Town Culvert lay within the Town's right of way for Charlton Street/Hall Road. The Old Town Culvert was 30 inches in diameter and made of reinforced concrete.

6. At the time of construction of the Old Town Culvert, there was another culvert, just off the northern side of 209 Charlton Road. That side of the property abuts a right of way, owned by the Commonwealth of Massachusetts, for Rt. 20. The northern culvert ran underneath Rt. 20 in the direction of Hobbs Brook and marshes surrounding the brook.

7. A 1945 map of the Southbridge Quadrangle, prepared by the U.S. Geological Survey ("USGS"), does not show any streams in, or heading towards, the location of the Old or New Town Culverts. The 1945 map depicts the elevation in that location as between 610 and 620 feet. But the map also shows, running southeast from the area surrounding the current location of the New Town Culvert, a pinched topographical feature (the "Ravine") that ascends Fisk Hill and intersects with Fisk Hill Road, at an elevation of 800 feet. On the 1945 map, the Ravine flattens as it approaches Hall Road (Charlton Street at that time) and Rt. 20. The 1945 map shows that, north of Rt. 20, the Ravine steepens again until it reaches Hobbs Brook and its marshlands.

8. The 1952, 1967 and 1979 USGS maps of the areas described in ¶ 7 don't show much in the way of changes to those areas. But a 1982 USGS map depicts an intermittent stream in the Ravine (the "Stream"). The Stream begins in the Ravine at approximately elevation 680 feet, just south of what the map identifies as an underground pipeline (a pipeline that first appears on the 1967 map). That point is well south of Sturbridge Meadows. The 1982 map shows the Stream heading northwest down Fisk Hill, cutting through the Sturbridge Meadows property (including two buildings first appearing on the 1967 map), and then running beneath Hall Road and Rt. 20 to reach Hobbs Brook and its marshes.

9. The watershed for the Stream is approximately 54.96 acres. Approximately 2.85 of those acres are within what's currently the developed portion of the Sturbridge Meadows property (the "Development"); the rest of the acreage lies south and southeast of the Development, and little of that area (the "Upstream Watershed") is owned by Sturbridge DHC. The Upstream Watershed is mostly wooded. Its soils provide good drainage. Bordering vegetated wetlands lie along the Stream as it climbs Fisk Hill through the Upstream Watershed. There have been no substantial changes to the Upstream Watershed since 1995, and no substantial changes to the Upstream Watershed's topography since 1945.

10. Much of the current professional methods for modeling stormwater runoff date back to the 1950s. Using those methods, one can calculate the Stream's expected flows during storm events. During "two-year" storm events, the peak flow rate of the New Town Culvert is approximately 9.02 cubic feet per second ("cfs"). If the upstream side of the New Town Culvert were blocked during such an event, water would overtop Hall Road and run downhill in various directions, including toward 209 Charlton Road. The peak flow rate of the New Town Culvert during a "ten-year" storm event is 28.28 cfs. Were the New Town Culvert blocked during that event, not only would water overtop Hall Road, but erosion likely would occur on the southern side of its roadbed, and likely would undermine Hall Road's pavement. Eroded pavement and sediments likely would be carried onto 209 Charlton Road and other downhill properties. The peak flow rate of the New Town Culvert during a "25-year" storm event is 42.06 cfs. If the New Town Culvert were blocked during a 25-year event, the effects would be substantially worse than those seen during a ten-year event. The peak flow rate of the New Town Culvert during a "100- year" storm event is 54.14 cfs. If the New Town Culvert were blocked during that event, water would "rage" onto Hall Road.

11. The Stream was visible at the time of trial. It runs through woods and bordering vegetated wetlands that are immediately south of the Development. The Stream then enters a 24- inch corrugated metal culvert (the "DHC Culvert") at the southern edge of the Development. The culverted Stream reappears on the northern edge of the Sturbridge Meadows property, at a stone headwall (the "DHC Headwall"). Along the way, the DHC Culvert goes beneath a lawn, one of Sturbridge Meadows's buildings (94 Hall Road), two catch basins, a paved parking lot, and a grassy hillside.

12. The Sturbridge Meadows property was once the site of a motel. The parties didn't establish when the motel was built, but they agree it consisted of two buildings. A 1967 USGS map shows those buildings, one on either side of the Ravine. One of the buildings still exists in largely its original configuration, and is called 96 Hall Road. The other building, 92 Hall Road, has been extended since 1967. It also now sports a second story.

13. I credit the testimony of Greg Morse -- the Town's Director of Public Works and a resident of Sturbridge since his birth in 1954 -- that during his childhood, the Stream coursed between 92 and 96 Hall Road and pooled near what's now the northern end of the DHC Culvert. I further credit Mr. Morse's testimony that by 1970 or 1971, some part of what's now the DHC Culvert had been built, and that anyone driving on Hall Road would have noticed that it discharged during and after storms. Further evidence supporting a finding that part of what's now the DHC Culvert was built before the early 1970s, and discharged towards the Old Town Culvert, includes the following: (a) the topography of the area, as shown on the 1945 and 1952 USGS maps; (b) the DHC Culvert's proximity to the 92 Hall Road building; (c) the presence of an older (relative to other catch basins on the site) catch basin above what's now the DHC Culvert, immediately southeast across a driveway from 92 Hall Road; (d) the presence of a parking lot on the north side of 92 Hall Road (parking lots being an essential feature of "motels," see The American Heritage Dictionary of the English Language, 856 (1976)); (e) that the DHC Culvert lies beneath the 92 Hall Road parking lot; and (f) no evidence of additional development of the motel between 1967 (when its buildings first appear on a USGS map) and November 1984, when the motel's owners sold the property.

14. The November 1984 purchaser of the property was Oliver Howlett. Howlett remodeled the two existing motel buildings (including expanding 92 Hall Road) and added the eight buildings that now comprise the Development. Howlett's work also included building today's DHC Culvert and its stone/concrete headwall, on the boundary between Sturbridge Meadows and the Hall Road right of way. He completed construction of the DHC Culvert and its headwall by 1985.

15. By 1985, the Town had installed east of the Old Town Culvert, within the Hall Road right of way, a drop inlet (the "Drop Inlet"). The Town connected a nine-inch corrugated pipe to that Inlet, and ran the pipe west from the Inlet to the exposed edge of the southern side of the Old Town Culvert. The Town did not establish at trial when it installed the Drop Inlet, but it appears on Trial Exhibit 29, a 1985 plan attributed to the Worcester County Engineer. The Drop Inlet, the end of the nine-inch corrugated pipe, and any discharges from that pipe were visible from the Hall Road right of way.

16. In 1987, the Town authorized the reconstruction of Hall Road. The authorized work included replacing the Old Town Culvert with the New Town Culvert, replacing the Drop Inlet, and widening Hall Road. The Town (authorized by its officials) obtained approvals under the Massachusetts Wetlands Protection Act for all work regulated under that Act.

17. While the New Town Culvert has a smaller diameter than the Old Town Culvert, the New Town Culvert is longer: after installation, it extended approximately 7.5 feet into 209 Charlton Road. The Town also replaced the Drop Inlet and its attached nine-inch line with a catch basin (the "Hall Road Catch Basin") and an eight-inch corrugated metal pipe. The latter pipe discharges into an exposed shallow basin at the southern entrance of the New Town Culvert (the "Entry Basin"). All of these features lie within the Hall Road right of way and are visible from Hall Road. Discharges from the Hall Road Catch Basin and its drain pipe are likewise visible from Hall Road.

18. The Town has regularly maintained the New Town Culvert, the Hall Road Catch Basin and its drain line since 1987. The Town has conducted that work largely within the Hall Road right-of-way. The Town offered no evidence that its crews entered 209 Charlton Road to perform maintenance on the New Town Culvert.

19. By September 1994, Oliver Howlett had built 94 Hall Road (atop the DHC Culvert) and cleared a lawn behind 94 Hall Road (also atop the DHC Culvert). He expanded the impervious surfaces at Sturbridge Meadows, not only by adding eight buildings, but also by installing driveways and paved parking areas. He connected to the DHC Culvert a catch basin that lay within one of Sturbridge Meadows's parking areas. He also installed a subsurface drain that discharged immediately east of the stone headwall of the DHC Culvert. All of these improvements appear on Trial Exhibit 8, a September 1994 plan.

20. At the time of trial, there were four drains leading to the Entry Basin: (a) the DHC Culvert, (b) the eight-inch pipe from the Hall Road Catch Basin, (c) a corrugated, black-plastic drain pipe entering the Entry Basin from the west ("Pipe (c)"), and (d) a corrugated, black-plastic drain pipe entering the Entry Basin south of the Town's eight-inch pipe but north and east of the DHC Culvert's stone headwall ("Pipe (d)").

21. Pipe (c) is shown on Trial Exhibit 32, an existing-conditions plan. Pipe (c) connects to at least two catch basins and drains that lie between 90 Hall Road and 92 Hall Road. Trial Exhibit 32 depicts the principal connections to Pipe (c), but the Court observed during its view of the area between 90 and 92 Hall Road roof drains that could be connected to Pipe (c). Pipe (c) and its related improvements do not appear on Trial Exhibit 8. Kevin Poirier testified that Pipe (c) had been installed by the time he moved to Sturbridge Meadows in 2001, but Sturbridge DHC did not prove that Pipe (c) and its related improvements were installed prior to 1995. Mr. Poirier testified that Pipe (c) does not flow.

22. Pipe (d) does not appear on Trial Exhibit 32, but it lies in the vicinity of the outlet of the subsurface drain described in ¶ 19 above. Mr. Poirier claimed that Pipe (d) had been installed by the time he moved to Sturbridge Meadows in 2001. The Court finds that it is the same pipe depicted on Trial Exhibit 8, or a replacement of that pipe. Mr. Poirier testified, however, that Pipe (d) only trickles.

23. In July 1997, the Trust filed with the Sturbridge Conservation Commission a request for determination of the applicability of the Wetlands Protection Act to 209 Charlton Road. Trustee Joseph Gentili signed the request. The Trust filed no plans with the request, other than a rough sketch showing the dimensions of 209 Charlton Road. The sketch also contained two boxes. One was a square labelled "Retail Bldg." The other was a triangle marked "Parking."

24. In August 1997, in response to the application described in ¶ 23, the Commission issued a "negative" determination of applicability. In pertinent part, the Commission's determination states: "The Conservation Commission has determined that there are no wetlands on the [Trust] lot; however, the Commission would require during any construction that the drainage structure(s) be protected by erosion control barriers (hay bales) to prevent erosion at the drainage outlets located off the site." No one appealed the Commission's determination. Trustee Gentili learned of the determination shortly after it issued.

25. Six years later, a lessee of 209 Charlton Road, Robert F. Williams, filed another request for determination of the applicability of the Wetlands Protection Act to the leased lot. While the Act required the "owner" of the property that is the subject of a determination request to sign the request, the Commission was under the impression that Williams owned 209 Charlton Road.

26. In August 2003, the Commission held that there were wetlands on 209 Charlton Road. The Commission's decision did not identify the precise location of those wetlands. The decision states: "Due to the unknown nature of the clearly observed water course which runs under Hall Road, across the subject property, into the soil and exits via a culvert into a wetland across Route 20, a Notice of Intent [for permission under the Act to alter wetlands] will need to be filed to clearly evaluate and protect the unidentified water course." The decision also states:

While a negative determination was issued in 1999 [sic] due to no visible water on site, the surrounding area has been heavily developed, altering the site and area hydrology. As a stream is shown on the site on current USGS topographic maps, the commission requests a full hydrological review of the site to determine the nature of the stream, the protectable interests and any measures necessary to protect said resource.

27. Trustee Gentili first learned from the Commission's August 2003 determination that 209 Charlton Road contained wetlands.

28. Williams leased 209 Charlton Road until 2006 or 2007. Thereafter the Trust made several attempts to sell the property. In 2009, the Trust had Jalbert Engineering, Inc. delineate the wetlands on the property. Jalbert's resulting plan (Trial Exhibit 11) marked an "area of man-made runoff" that begins on the Trust property and extends into the Commonwealth's right of way for Rt. 20. That area connects the New Town Culvert and the Route 20 Culvert. That area also extends east of the Route 20 Culvert to a concrete headwall within the Rt. 20 right of way. That headwall is the discharge point of a 12-inch corrugated metal drain pipe leading from Rt. 20.

29. The Trust has given neither the Town nor Sturbridge DHC permission to discharge stormwater onto 209 Charlton Road. The Trust also has not given the Town permission to keep and maintain on 209 Charlton Road those portions of the New Town Culvert that encroach on 209 Charlton Road.

30. In December 2015, the Trust filed this action, initially against the Town of Sturbridge only. The Trust sought a declaration that the Town has no prescriptive easement or other right to discharge water onto 209 Charlton Road "so as to create wetlands." The Trust also asked for two orders, one enjoining the Town from further discharges of water "so as to create wetlands" and another directing the Town to take any action "necessary or appropriate to terminate the flow of water onto [209 Charlton Road] so that there are no wetlands. . . ."

31. The Trust amended its complaint in February 2016. The Trust added Sturbridge DHC as a defendant, and sought the same relief against Sturbridge DHC that the Trust earlier had sought against only the Town.

32. In September 2016, Sturbridge DHC counterclaimed against the Trust for a declaration that Sturbridge DHC has a prescriptive easement to discharge water "from the Sturbridge Meadows property through the [New Town Culvert] and onto [209 Charlton Road]." In May 2017, the Town amended its answer to add its own counterclaim against the Trust, one seeking a declaration that the Town has "a prescriptive right of easement for the head wall, culvert and discharge of water through the [New Town Culvert] and onto [209 Charlton Road]." Sturbridge DHC and the Town did not cross-claim against each other.

*.*.*

While the relevant facts of this case stretch over 85 years, the governing principles haven't changed all that much. A helpful guide to the law as it stood at the midpoint of the period canvassed in this Decision is found at pages 31-33 of a report published by the Massachusetts Water Resources Commission, "Compilation and Summarization of the Massachusetts General Laws, Special Laws, Pertinent Court Decisions, Etc. Relating to Water and Water Rights," in 1970. It summarizes the key principles as follows (citations omitted):

The Courts allude to surface water as rain or melting snow or ice.

In Beals v. Brookline, [ 174 Mass. 1 , 20 (1899),] Hammond, J., reporting, said, "In the language of the older books, surface water is regarded very largely by the law 'as a common enemy which every proprietor may fight to get rid of as best he may.'"

. . .

A private landowner, or city or town, has no authority or right to collect surface water into a definite artificial channel and discharge it upon his neighbor's land.

. . .

If a landowner does collect and discharge surface water continuously, openly and adversely under a claim of right, for more than twenty years, he may gain a right of easement by prescription.

. . .

No easement by prescription will ever accrue to an upper proprietor by the mere passage of surface water from his property over the land of a lower proprietor. . . .

All but one of these principles continues to be true. (The exception is the second, the so-called "common enemy" doctrine. In Tucker v. Badoian, 376 Mass. 907 , 916-17 (1978) (Kaplan, J., concurring), the Supreme Judicial Court announced that it would no longer follow the doctrine with respect to conduct post-dating the Tucker decision, and instead would apply a "reasonable use" standard to a property owner's handling of its drainage.) Perhaps recognizing that the conduct at issue in this lawsuit occurred over decades, the Trust's claims in this case have focused from the outset on whether the Town and Sturbridge DHC have acquired prescriptive easements that allow each to continue draining onto (and, in the case of the Town, occupying a part of) 209 Charlton Road. The Town and Sturbridge DHC have the burden of proving their easement rights. See White v. Hartigan, 464 Mass. 400 , 413 (2013). The Town and Sturbridge DHC also must prove their rights independently: that the Town may have acquired an easement does not mean that Sturbridge DHC has too, and vice versa. See Labounty v. Vickers, 352 Mass. 337 , 349 (1967).

As the Town's Hall Road right of way abuts 209 Charlton Road, the Court will examine the Town's rights first. To acquire a prescriptive easement over land located within a municipality's limits, the municipality

must demonstrate (1) "unexplained use for more than twenty years which is open, continuous, and notorious," and (2) "proof sufficient to satisfy a trier of fact that the municipality has exercised dominion and control over the land in its corporate capacity through authorized acts of its employees, agents or representatives to conduct or maintain a public use thereon for the general benefit of its inhabitants."

Athanasiou v. Board of Selectmen of Westhampton, 92 Mass. App. Ct. 92 , 96 (2017), quoting Daley v. Swampscott, 11 Mass. App. Ct. 822 , 827, 829 (1981). These tests apply to drainage easements. See Athanasiou, 92 Mass. App. Ct. at 95-96; Trenz v. Town of Norwell, 68 Mass. App. Ct. 271 , 278-79 (2007) ("Trenz I"). Moreover, to foreclose any argument by the owner of the servient estate (here, the Trust) that the owner of the dominant estate (here, the Town) has exceeded its easement rights, the latter must show that "its rights are 'extensive enough to authorize the amount and character of the use which [it has] made,' and that it did not overburden the easement." Id. at 279 (brackets in original; emphasis added), quoting Swensen v. Marino, 306 Mass. 582 , 583 (1940). But contrary to what the Trust contends, in order to establish easement rights, the putative owner of the dominant estate need not prove the level of "dominion and control" discussed in, for example, Peck v. Bigelow, 34 Mass. App. Ct. 551 (1993), and Sea Pines Condominium III Association v. Steffens, 61 Mass. App. Ct. 838 (2004). Both of those cases involve claims by parties that sought to establish adverse acquisition of a fee interest in land. This case is only about easements.

The Town has acquired, over time, several overlapping easements over 209 Charlton Road. The Town acquired the first easement sometime in the 1950s, that is, twenty years after the Town built the Old Town Culvert. While the Old Town Culvert lay entirely within the Hall Road right of way, the culvert's role in carrying the Stream beneath Hall Road, and thereafter onto 209 Charlton Road, was open, continuous (in the sense that no one ever blocked the culvert or the Stream), and notorious. See Foot v. Bauman, 333 Mass. 214 , 218 (1955).

The Town's prescriptive acquisition of its first drainage easement was a result of corporate action, and was for a proper public purpose. The Town built the Old Town Culvert within a town-owned right of way. The Town thereafter maintained Hall Road and the Old Town Culvert. That work served a public purpose: it kept Hall Road clear of the substantial surface waters carried by the Stream during and after storms. Triangle Center, Inc. v. Department of Public Works, 386 Mass. 858 , 864 (1982), agrees that these activities serve the public good.

Trenz I holds that the required municipal "corporate action" in prescriptive drainage-easement cases must include authorization of not only the construction of culverts, but also their associated discharges onto downgradient properties. See Trenz I, 68 Mass. App. Ct. at 278 n.7. In a later, unreported decision under Appeals Court Rule 1:28, the Appeals Court held that one could find such authorization if it were clear to the municipality, at the time of installation of an authorized culvert, that the "natural contours of the land" would direct to downhill properties the culvert's flows. See Trenz v. Town of Norwell, 74 Mass. App. Ct. 1117 , *3 (June 11, 2009) ("Trenz II"). That the Town of Sturbridge found it necessary in 1930 to install a 30-inch reinforced concrete culvert at the point where the Ravine and the Stream meet Hall Road, and that the Commonwealth previously had installed a 30-inch culvert further downhill along the Ravine, shows that it was apparent to the Town at the time of installation of the Old Town Culvert that it would discharge to 209 Charlton Road during storms.

Joseph Gentili's boyhood recollections do not contradict these findings. Mr. Gentili did not live at 209 Charlton Road as a child; he was only an occasional visitor. He offered no testimony about the property's conditions in bad weather. He admitted that his father told him as a child to stay away from Rt. 20 and Hall Road, and he testified that he did what he was told. But by obeying his father, Mr. Gentili never learned of the Old Town Culvert or Rt. 20's culverts, or whether (and if so, how) they flowed.

The pre-1982 USGS maps likewise do not preclude the Court from finding that the Stream has existed since the 1930s. Each map acknowledges the limitations of prior maps. According to the 1952 map, the 1945 map was the product of plane-table surveys. One author notes that such surveys may be inaccurate in wooded areas. See C. Venkatramaiah, Textbook of Surveying, 119-20 (Universities Press 1996). The 1967 map states that USGS corrected the 1952 map using aerial photographs and unexplained "field checks." The 1979 map made further changes (noted in purple on the map) based solely on aerial photographs "and other source data," but the map admits that no one checked those changes in the field. Useful aerial photographs are taken in good weather, which may not be the best time to identify an intermittent stream. An aerial photograph also may not reveal a stream that courses through woods (as large parts of the Stream do), and it would have taken some doing to identify from an aerial photograph those portions of an as-yet unmapped stream that were (by 1967) coursing through a buried culvert.

The Town thus acquired by the 1950s the right to discharge through the Old Town Culvert, and onto 209 Charlton Road, stormwater carried by the Stream. The Court need not be more precise about the location of the Town's original drainage easement, or how much water it carried, as a new easement (one associated with the New Town Culvert) has replaced it. The Town acquired that easement sometime in 2007, that is, twenty years after construction of the New Town Culvert. The New Town Culvert served the same function as the Old Town Culvert in carrying the Stream's stormwater, but installation of the New Town Culvert modified the Town's original easement in two respects. First, the New Town Culvert encroaches on 209 Charlton Road by 7.5 feet. That encroachment has been open, notorious and continuous since 1987. As the Town (a) authorized and paid for the wholesale reconstruction of Hall Road and its associated culverts in 1987, and (b) has continuously maintained the New Town Culvert since 1987, the Town has authorized (within the meaning of Trenz I and Trenz II) the encroachment onto 209 Charlton Road.

The second change in the Town's easement results from the change in the location of the New Town Culvert's outlet. The New Town Culvert discharges further north than the Old Town Culvert did, and thus the southern end of the Town's easement has shifted north. It now begins at the outlet of the New Town Culvert, and continues north from there. Trial Exhibit 11, a plan prepared at the Trust's request within two years of when the Town acquired the easements associated with the New Town Culvert, depicts both the location of the New Town Culvert and its associated "Area of Man Made Drainage" on 209 Charlton Road.

It's possible that, owing to the differences in size and length of the Old and New Town Culverts, the culverts differ in their discharge velocities. Any such difference could have altered how the Stream flowed across 209 Charlton Road after 1987, and potentially modified (through scouring or otherwise) the course of the original drainage easement. The Court need not explore this issue further, as any new features associated with the discharges of the New Town Culvert have been open, notorious and continuous for over 30 years. The Town also appreciated, in its corporate capacity and prior to installing the New Town Culvert, that the culvert would continue to carry the Stream, by virtue of natural contours, onto 209 Charlton Road. Any change in the culvert's drainage patterns thus received sufficient corporate authorization to allow the Town to claim a prescriptive easement in the "Area of Man Made Drainage."

Trenz I reminds the courts that in prescriptive drainage-easement cases, determining the volume of discharges as of the start of the prescriptive period is as important as establishing the existence of the easement and its location. The Town did not prove the volume of the Old Town Culvert's discharges, but it provided enough such proof for the New Town Culvert. The Town's civil-engineering expert, Andrew Baum, testified as to the volumes carried by the Stream and the Hall Road Catch Basin during various storm events. He likewise testified that there have been no changes to the principal watersheds of the Stream or the Catch Basin since 1995 that would have caused the calculated volumes to have increased.

The Trust relies heavily on the Sturbridge Conservation Commission's 1997 negative determination of applicability in arguing that flows from the New Town Culvert must have increased over time. At one point the Trust moved for summary judgment on this issue, contending that the 1997 determination collaterally estops the Town from contending at trial that the Stream discharged onto 209 Charlton Road prior to August 1997 in quantities sufficient to create wetlands there. At trial, the Trust pressed a related attack, that once a public board has decided something, the board's decision (as set forth in the public record) "cannot be varied or added to by other evidence." The New England Box Co. v. C&R Construction Co., 313 Mass. 696 , 702 (1943).

The 1997 determination does not estop the Town from insisting that today's flows to 209 Charlton Road haven't changed after 1987, even if the Conservation Commission found in August 1997 that 209 Charlton Road had no wetlands. The Sturbridge Conservation Commission is not the Town of Sturbridge; the Commission is only a Town-created administrative board. See G.L. c. 40, § 8C. The Commission also was not acting in any "municipal" capacity in rendering the 1997 determination. It did so at the behest of the Commonwealth under the Wetlands Protection Act, which as of 1997 required persons seeking a determination of the Act's applicability to seek it first from a local conservation commission. See G.L. c. 131, § 40, para. 3; Hamilton v. Conservation Commission of Orleans, 12 Mass. App. Ct. 359 , 364-69 (1981) (describing the use of conservation commissions under the Act). Even if the Commission hadn't been playing a role under the Act in issuing its 1997 determination, a decision by a municipal board that is acting within its field of "independent responsibility" does not bind the municipality generally. Davidson v. Board of Selectmen of Duxbury, 358 Mass. 64 , 67-68 (1970); Rounds v. Water & Sewer Comm'rs of Wilmington, 347 Mass. 40 , 43-44 (1964). The Commission's determination also does not bind the Town as a matter of res judicata or any other issue-preclusion doctrine, as the Town was not a party to the Commission's proceedings on the Trust's request for a determination of the Act's applicability. See Petrillo v. Zoning Bd. of Appeals of Cohasset, 65 Mass. App. Ct. 453 , 457 (2006) (issue preclusion requires, among other things, proof that the parties to prior and current litigation are identical, or that they were in privity with such parties).

The Trust's "impermissible variance" argument doesn't fare any better. The Town has not argued that the document containing the 1997 determination is inauthentic, or that it inaccurately reports the Commission's conclusions. The Town also has not offered any evidence (parol or otherwise) that the Commission decided something in addition to what its written determination lays out, the vice addressed in New England Box. The Town accepts (as it must) the fact of the determination. But that doesn't preclude the Town from urging the Court to discount it. The Town is free to point out the determination's shortcomings: that it doesn't mention the 1982 USGS map; that it doesn't evaluate the function or purpose of the "drainage structures" mentioned in the determination; and that it was produced during the months of July and August, a time that often isn't ideal for evaluating intermittent streams and wetlands.

The Trust's reliance on the 1997 determination also overlooks a significant regulatory change that occurred in 1997. The legislature amended the Wetlands Protection Act in November 1996 to heighten its protections for "riverfront" areas. See Rivers Protection Act, St. 1996, c. 258. While the amendments were effective immediately upon passage, see id., the Commonwealth did not publish regulations implementing those amendments until July 25, 1997, with an effective date of October 6, 1997. Those regulations forced conservation commissions to look more carefully at USGS maps than they had previously: anything that appeared as a perennial stream or larger on a USGS map was presumed to be a "river" within the meaning of the Rivers Protection Act, and could trigger jurisdiction under the amended Wetlands Protection Act. See Gregor I. McGregor, "Wetlands and Floodplain Law," 1 Massachusetts Environmental Law § 10.3 at 10-27-10-28 (3d ed. 2014 Supp.).

The Town's conservation agent, Glenn Colburn, testified that the 1997 determination was erroneous because of what appears on the 1982 USGS map. While the Court isn't prepared to go that far – after all, the map shows the Stream as intermittent, and not perennial; and the state's "riverfront" regulations didn't go into effect until October 1997 – the weight of the evidence about the Stream convinces the Court that the 1997 determination is an unreliable indicator of whether the Stream's flows have changed from 1987 to the present.

Based on all of the evidence, the Court holds that the Town's use of its drainage easement has not overburdened the easement. Once a party has proven that it has acquired a drainage easement by prescription, and hasn't overburdened its easement, the inquiry ends there. See TCR Midatlantic/NE Properties, Inc. v. Marques, 12 LCR 434 , 437 (2004). The municipality need not prove, for example, that its discharges are reasonable under Tucker. The Trust argues that Trenz I holds otherwise, and at first glance, one might agree. The Trenzes had sued the Town of Norwell and their neighbor, Barbara Meacham, for nuisance. The Trenzes claimed that each had made unreasonable use of their properties and had caused four town culverts to flood the Trenz property. Tucker governed the Trenzes' nuisance claims, and both Norwell and Mrs. Meacham contended that their use of their properties was reasonable. See Trenz I, 68 Mass. App. Ct. at 275-78. But Norwell raised a separate defense: that it had acquired a prescriptive easement over the Trenz property to discharge stormwater. The trial court agreed, and ruled that the town's easement provided it with a complete defense to the Trenzes' nuisance claims. See id. at 274-75.

Trenz I vacated the trial court's judgment and remanded the case for additional findings of fact. See id. at 279-81. Because of the posture of the case, the Appeals Court felt compelled to address both the Trenzes' nuisance claims and Norwell's prescriptive-easement defense. It is in that context that Trenz I discusses, for example, a property owner's obligations to avoid unreasonable discharges, as well as a public body's obligations to avoid imposing "'on private individuals a disproportionate share of the cost'" of keeping surface waters off public highways. Id. at 275, quoting Triangle Center, 386 Mass. at 864.

But Trenz I doesn't address whether the duties of reasonableness and proportionality apply to the owner of a drainage easement whose discharges stay within the easement's physical and volumetric limits. That much becomes clear from Trenz II. On remand from Trenz I, the trial court held that Norwell's proof of corporate action wasn't sufficient to establish acquisition of a prescriptive drainage easement. The trial court also held that neither Norwell nor Mrs. Meacham were liable for nuisance, as neither had increased their downstream flows over the years.

Everyone appealed, and Trenz II followed. It has three key holdings. First, it reversed the trial court's judgment on the issue of corporate action (discussed earlier in this Decision) and held that Norwell had acquired by prescription the right to drain onto the Trenz property. Second, the Appeals Court held that the trial court's finding of no increase in flows towards the Trenz property demonstrated that Norwell hadn't exceeded the scope of its easement rights. See id. at **3-4. Finally, Trenz II concluded (consistent with TCR Midatlantic) that "[b]ecause any harm that may have resulted from the discharge of water onto the Trenz property has not exceeded the scope of the town's easement, no nuisance against the town has been proved." Id. at *5.

The Court thus will enter judgment in favor of the Town on its counterclaim against the Trust, and DISMISS the Trust's claims against the Town. The Court will DECLARE that the Town has an easement to (a) keep and maintain the New Town Culvert, in its present size and present location on 209 Charlton Road, and (b) discharge through the New Town Culvert and onto 209 Charlton Road, with the "Area of Man Made Drainage" depicted on Trial Exhibit 11, stormwater carried by the Stream and the Hall Road Catch Basin in their current condition, so long as they drain only their current watersheds. As the Town has acquired its easements by prescription, the Trust retains its rights under M.P.M. Builders, LLC v. Dwyer, 442 Mass. 87 (2004), to relocate the easements. This Court's judgment also will not address any of the Trust's assertions that the Town is liable under the federal and state constitutions for taking its easements and not paying the Trust for them. This Court has no jurisdiction over takings claims.

The Court now turns to Sturbridge DHC's claims. Sturbridge DHC has the burden of proving that it has openly, notoriously and adversely discharged stormwater onto 209 Charlton Road for more than twenty years. See Boothroyd v. Bogartz, 68 Mass. App. Ct. 40 , 44 (2007). The Trust argues that it's impossible for Sturbridge DHC to acquire a prescriptive drainage easement across 209 Charlton Road because Sturbridge Meadows doesn't abut 209 Charlton Road. The DHC Culvert and its headwall, for example, are where Sturbridge Meadows meets the Town's Hall Road right of way. Sturbridge DHC's discharges empty into the Entry Basin (also on Town property) and must travel through a Town-owned conveyance, the New Town Culvert, to reach 209 Charlton Road. Sturbridge DHC also has not claimed that it has acquired prescriptive rights over or through the Town's property, which would (if established) at least make Sturbridge DHC the owner of an easement abutting 209 Charlton Road.

In one of the better-known drainage cases, Fortier v. H.P. Hood & Sons, Inc., 307 Mass. 292 (1940), the Supreme Judicial Court saw things differently. There the Court upheld the claims of the Hood dairy, which operated at the top of a hill, that it had obtained a prescriptive easement to discharge process water that ended up on Fortier's property, which sat at the bottom of the hill. The Court upheld the easement (while limiting the volume of Hood's discharges through it) even though Hood's water had to flow through several intervening drains and properties, none of which Hood owned, to reach Fortier. The Trust has offered no authority that suggests that Fortier was incorrect in this respect.

So what does Sturbridge DHC discharge towards 209 Charlton Road? Potentially, DHC's discharges come from the DHC Culvert, Pipe (c), and Pipe (d). The Court will address the Pipes first. Sturbridge DHC has failed to prove that Pipe (c) has been discharging any stormwater to 209 Charlton Road. Pipe (c) doesn't appear on Trial Exhibit 8, the 1994 plan of Sturbridge Meadows. The only testimony concerning the origins of Pipe (c) comes from Kevin Poirier, who said that the pipe was visible at the Entry Basin as of 2001. Mr. Poirier also testified that he has never observed discharges from Pipe (c) to the Entry Basin. Having offered no proof of "open" discharges from Pipe (c), Sturbridge DHC can't establish that it now has a prescriptive easement to send discharges from Pipe (c) across 209 Charlton Road.

Sturbridge DHC doesn't fare that much better with Pipe (d). That pipe (or one it replaced) appears on Trial Exhibit 8, so it has been in place more than twenty years. But Mr. Poirier testified that Pipe (d) contributes only a trickle, at best, to the Entry Basin. Sturbridge DHC offered no proof that the trickles reached 209 Charlton Road, or if they did, that they were in amounts great enough to put the Trust on notice of discharges from Pipe (d). Sturbridge DHC thus has not acquired a prescriptive easement to send discharges from Pipe (d) across 209 Charlton Road.

That leaves the DHC Culvert. The DHC Culvert carries to the Entry Basin the Stream and whatever's collected by two catch basins located atop the DHC Culvert. (Trial Exhibit 8 shows another catch basin located east of the DHC Culvert that connects with the culvert. Trial Exhibit 32 describes the catch basin as "filled w/ soil and mulch," and does not show any connection to the DHC Culvert. This Decision treats the "filled" catch basin as disconnected from the DHC Culvert.) For the reasons given earlier in connection with the Town's drainage easement, this Court holds that Sturbridge DHC has acquired a prescriptive easement to discharge to 209 Charlton Road, in the amounts and volumes prevalent in 1987, (a) stormwater carried by the Stream into the DHC Culvert and (b) stormwater collected by the two DHC catch basins that sit atop the DHC Culvert. The easement area is identical to the Town's, and like the Town's easement, Sturbridge DHC's easement is subject to M.P.M. Builders. For these reasons, the Court will enter judgment DECLARING Sturbridge DHC's easement rights, and DISMISSING the Trust's claims against Sturbridge DHC.

Judgment to issue accordingly.

Exhibit 1