MISC 17-000558

September 14, 2018

Norfolk, ss.



This case presents the second opportunity in less than a year for the Court to wade into the subject of drainage easements acquired through prescription. See Gentili v. Town of Sturbridge, 26 LCR 28 (2018). In Gentili, the evidence allowed the Court to look back to the 1930s in aid of deciding the case. The historical evidence in this case isn't nearly as abundant, but there's enough for the Court to resolve the issues the parties have presented.

In 2015, plaintiff JPM Development, LLC bought a former industrial site in Canton, Massachusetts (the "Site"). The Site lies northeast and uphill from the abutting property of defendants Michael and Sarah Nemetz.

Stormwater from a large part of the Site collects in a catch basin on the southwest side of the Site (the "Basin"). The Basin empties into a buried pipe (the "Pipe"). The Pipe travels underground more than 200 feet south/southwest, beneath the Nemetz property, and emerges at the edge of a ditch that's also on the Nemetz property. A vegetated wetland surrounds the ditch. The density of the brush that envelops the ditch varies with the season.

At the point where the Pipe meets the ditch, twelve to eighteen inches of the Pipe is above ground and exposed (the "Pipe's End"). The Pipe's End is eighteen inches wide and made of corrugated aluminum.

The ditch flows southerly across the Nemetz property at least 150 feet until it reaches a culvert that runs beneath Sherman Street in Canton. (Sherman Street runs along the southern edge of the Nemetz property. The Nemetzes have a Sherman Street address.) If one were curious about the source of the water in the ditch, one need only walk down the Nemetzes' driveway, continue through their tended backyard, take a left into a small area of forested upland immediately to the north of the wetland (still on the Nemetz property), battle some of the brush (thankfully, the Court observed no poison ivy on its view), and there it is: the Pipe's End.

After buying the Site, JPM sought approvals to redevelop it. The Nemetzes appeared at a public hearing on JPM's plans and questioned whether JPM had the right to drain stormwater onto the Nemetz property. JPM sued the Nemetzes in this Court in September 2017 to establish JPM's drainage rights. JPM initially asserted that it had deeded drainage rights. After further investigation, JPM concluded it didn't have deeded drainage rights, but JPM decided to press instead a claim that it had acquired such rights by prescription.

The parties appeared for trial on July 17 and 18, 2018. During the trial, the Court viewed the Site and the Nemetz property. Based on the parties' agreed facts, the evidence introduced at trial, the Court's view, and the arguments of counsel, the Court finds the facts recited above plus these:

1. The Nemetz property is at 319 Sherman Street in Canton. (While the Nemetzes didn't buy their property until 1993, this decision will call 319 Sherman Street the "Nemetz property" regardless.) The property is shown as Lots 2 and 3 on a 1961 plan entitled "Plan of Land in Canton, Mass. drawn by E.E. Boudreau, Registered Civil Engineer," recorded at the Norfolk Registry of Deeds (the "Registry") in the 1961 Plan Book, Plan No. 142 (the "1961 Plan"). A deed recorded in Book 3877, Page 11 further references the 1961 Plan.

2. Lot 3 as shown on the 1961 Plan is more developed than Lot 2. Lot 3 is the site of the Nemetzes' home, a nicely landscaped yard, and their driveway. Lot 3's area is 14,431 square feet.

3. Lot 2 is L-shaped (or rather, if north is "up," Lot 2 is an upside-down L). It surrounds the west and north sides of Lot 3. Lot 2's area is 83,463.56 square feet. Except for a fringe that borders the north side of Lot 3, the upland portions of Lot 2 are wooded and slope upwards towards the abutting Site. The wetlands and the ditch described in the opening of this Decision lie within that portion of Lot 2 that borders the west side of Lot 3. The wetlands and the ditch are visible from Sherman Street, the Nemetzes' driveway, and the landscaped portions of the Nemetz property. The Pipe's End is within 150 feet of Lot 2's eastern boundary with developed Lot 3. One cannot see the Pipe's End from inside the Nemetzes' home or from their driveway; one has to walk through the woods and the fringes of the ditch's wetlands to see the Pipe's End.

4. As of 1971, a chemical plant occupied the Site. Stormwater from the Site discharged via the Pipe onto the Nemetz property.

5. The vice chairman of the Town of Canton's Conservation Commission in 1971 was Richard Volkin. Between 1971 and his retirement from the Commission in 1984, he and the Commission were interested in whether the chemical plant was discharging via the Pipe anything besides stormwater. That interest prompted Volkin to enter the Nemetz property and inspect the Pipe's End five to six times each year while he was on the Commission.

6. Mr. Volkin also frequently walked along the Sherman-Street side of the Nemetz property on weekday trips to a commuter-rail station. During those walks, which continued until sometime in the 1990s, Volkin frequently peered down from Sherman Street to view the open ditch as it entered the Sherman Street culvert. He often saw water flowing in the ditch.

7. According to Agreed Trial Exhibit 5, the area on the Site that contributes stormwater to the Pipe (the "Watershed Area") is approximately 145,000 square feet. The topography of the Site is such that any stormwater that collects in the Basin will flow through the Pipe, out the Pipe's End, and into the ditch on the Nemetz property.

8. At the time of trial, impervious surfaces (buildings and parking lots) comprised close to all of the Watershed Area. During its view, the Court saw the buildings and parking lots depicted on Exhibit 5. The Court concludes that the buildings, the parking lot and the Basin are more than 25 years old. The Court bases this conclusion on the following facts: (a) Mr. Volkin's testimony that a "chemical plant" occupied the Site in the 1970s and that the Pipe drained the Site; (b) references in Agreed Exhibit 1 to several corporations that owned the Site or portions of the Site (three of those corporations identify themselves as "electric," "electronics," or "electronic materials" businesses); (c) the architecture of the Site's buildings (all of which are consistent with industrial and manufacturing uses, and none of which appear to have been built after 1990); and (d) the significant weathering of the Site's buildings, its parking lot and the Basin. The Court does not base the conclusions in this paragraph on Plan No. 1150 of 1989, found in Plan Book 388 at the Norfolk County Registry of Deeds (the "1989 Plan"). As this decision will later explain, the Court is not admitting the 1989 Plan into evidence.


Gentili cites a 1970 summary of the law of drainage rights, including the principle that if a landowner "collect[s] and discharge[s] 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." Gentili, 26 LCR at 32, quoting Massachusetts Water Resources Commission, Compilation and Summarization of the Massachusetts General Laws, Special Laws, Pertinent Court Decisions, Etc. Relating to Water and Water Rights, 31-33 (1970). That summary of the law remains true today (see, for example, Boothroyd v. Bogartz, 68 Mass. App. Ct. 40 , 44 (2007)), with two additions: since at least 2007, the putative holder of a drainage easement also must prove the amount and character of the dominant estate's flows, and that the dominant estate's prescriptive rights encompass those flows. See Trenz v. Town of Norwell, 68 Mass. App. Ct. 271 , 278-279 (2007).

The party that asserts it has acquired drainage rights by prescription (here, JPM) bears the burden of proving those rights. See White v. Hartigan, 464 Mass. 400 , 413 (2013). Relying on Mr. Volkin's testimony, JPM argues that the Pipe has been discharging stormwater "openly and notoriously" onto the Nemetz property since 1971, well over twenty years. The Nemetzes respond that virtually all of the Pipe is buried, and thus JPM can't prove "open" or "notorious" use of the Pipe. The Court disagrees.

To be "open," the [easement's] use must be without attempted concealment. . . . For a use to be found notorious, it must be sufficient 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. "It is not necessary that the use be actually known to the owner for it to meet the test for being notorious." It is enough that the use be of such a character that the landowner is deemed to have been put on constructive notice of the adverse use. "The extent of openness and notoriety necessary for the acquirement of title by adverse use varies with the character of the land."

Boothroyd, 68 Mass. App. Ct. at 44 (citations and footnote omitted), quoting Foot v. Bauman, 333 Mass. 214 , 218 (1955), and Tinker v. Bessel, 213 Mass. 74 , 76 (1912). The use of the Pipe by JPM and its predecessors in interest to the Site to discharge stormwater onto the Nemetz property has been open and notorious. While most of the Pipe is buried, a landowner maintaining a reasonable degree of supervision over the Nemetz property could discover it. That landowner also could ascertain, based on several obvious facts, that the Pipe was discharging stormwater from the Site. First, the ditch and its surrounding wetlands are obvious: they are visible from the occupied portions of the Nemetz property and Sherman Street. Second, the flows in the ditch are so substantial that they support an extensive wetland on the Nemetz property, and are enough to have merited installation of a sizeable culvert beneath Sherman Street. Third, the Pipe's End is exposed and above ground. No one has concealed the Pipe's End. Fourth, the Pipe's End has not moved since at least 1971. Fifth, anyone allowed on the Nemetz property can reach the Pipe's End easily. It's within 150 feet of the occupied portions of the property and is reasonably accessible. Mr. Volkin checked the Pipe's End repeatedly; the Court and the parties likewise reached the Pipe's End during the Court's view with no difficulty. (By contrast, the plaintiff in Boothroyd failed to establish a trail easement having an indeterminate location somewhere over a four-acre, completely undeveloped, heavily wooded parcel. See Boothroyd, 68 Mass. App. Ct. at 40-42, 44-45.) Finally, the location of the Pipe's End (downhill from the Site) and its orientation (pointing away from the Site) reasonably suggest that the Pipe is draining the Site.

Once a party has proven "'the use of an easement for twenty years unexplained, it will be presumed to be under claim of right and adverse, and will be sufficient to establish title by prescription and to authorize the presumption of a grant unless controlled or explained.' Evidence of express or implied permission rebuts the presumption of adverse use." Rotman v. White, 74 Mass. App. Ct. 586 , 589 (2009) (citations omitted), quoting Brooks, Gill & Co. v. Landmark Properties, 217 Ltd. Partnership, 23 Mass. App. Ct. 528 , 530-531 (1987). The Nemetzes ask the Court to presume that someone must have given JPM's predecessor in interest permission to install the Pipe. Rotman doesn't allow the Court to presume permission under these circumstances – in fact, Rotman requires the opposite, and forces the Nemetzes to prove that they or their predecessors in interest gave permission. The Nemetzes offered no such proof. JPM's engineer testified that if he were installing and burying a drain line like the Pipe, he'd seek permission, but JPM's engineer didn't install or bury the Pipe. Neither party offered evidence concerning the date of the Pipe's installation, who owned the Site or the Nemetz property at that time, the relationship between each property's owner at that time (if the properties even had separate owners), and what (if any) drainage rights were appurtenant to the Site prior to installation of the Pipe.

The latter point is crucial. Say that the owner of the Site filled its land in such a way that starting in 1930, it began diverting stormwater toward the Nemetz property, above ground, and without permission. If the diversion continued until 1950, the Site's owner would have acquired a drainage easement over the Nemetz property. If the Site's owner approached the owner of the Nemetz property in 1951 to propose installing the Pipe within the Site's prescriptively acquired drainage channel over the Nemetz property, and if the owner of the Nemetz property gave the Site's owner permission to do that, that permission would extend only to installation and use of the Pipe itself. That permission wouldn't undo the Site's prescriptive drainage easement (unless the owner of the Nemetz property bargained for that in exchange for giving permission to install the Pipe). And absent the Site owner's intentional relinquishment of its prescriptive rights, if the Nemetzes or their predecessors in interest ever revoked permission for the Pipe, the Site's owner simply could resume discharging onto the Nemetz property overland.

Unfortunately, the parties introduced at trial scant evidence of the history of the Site, the Nemetz property, and the area's development. Since the Nemetzes bear the burden of proof on the issue of permission, on that issue the lack of historical evidence hurts them more than it does JPM.

That leaves the question of the amount and character of JPM's drainage. See Gentili, 26 LCR at 32-34. JPM introduced very little evidence on this subject. From Mr. Volkin's testimony and the Court's view, the Court concludes that the character of JPM's flows since 1971 is that of stormwater that hits the Site's impervious surfaces, collects in the Basin, and then drains via the Pipe to the ditch. The evidence concerning the amount of stormwater the Site discharged for any continuous twenty-year period starting in 1971 or thereafter is not as direct as that concerning the character of the Site's flows. Agreed Exhibit 5 calculates the area of the current Watershed Area, but Exhibit 5 doesn't prove that the current Area matches whatever was draining to the Basin for any twenty-year period starting in 1971 or thereafter. True, Mr. Volkin testified that there was a "chemical plant" uphill from the Pipe as of 1971, but he didn't describe the plant, its buildings, or its parking lots.

The Court entertained, post-trial, one potential source of evidence concerning the Site's drainage area closer to Volkin's time. The evidence was the 1989 Plan. Neither party offered the plan at trial, but Agreed Exhibit 1 (JPM's deed) states that JPM bought "[t]he land with the buildings thereon . . . being shown on" the 1989 Plan. A court may take judicial notice of a recorded plan, especially if the court already has admitted into evidence a deed that refers to the plan. See, for example, Jenkins v. Johnson, 14 LCR 521 , 522 n. 11 (2006); Taylor v. The Martha's Vineyard Land Bank Comm'n, 23 LCR 312 , 313 n. 6, 314 n. 11 (2015), aff 'd, 475 Mass. 682 (2016).

The Court told the parties post-trial that it wanted to see the 1989 Plan, provided that the Nemetzes didn't object. They do. They first argue that JPM should have identified the 1989 Plan before trial, had JPM wanted it in evidence. True, but it's within the court's discretion to accept additional evidence after a party has rested its case (see, for example, Weber v. Coast to Coast Medical, Inc., 83 Mass. App. Ct. 478 , 481 (2013)), or even after the trial is over (see, for example, Kerr v. Palmieri, 325 Mass. 554 , 557 (1950)). Fairness in these situations is not so much a matter of the timing of the court's receipt of evidence, but rather whether the court has given everyone a fair crack at challenging (and, if admitted, meeting) the evidence. The Court gave the Nemetzes that opportunity.

The Nemetzes next argue that the 1989 Plan references easements and other plans that the Court shouldn't consider. They don't describe what they fear, but the Court has a good guess. The 1989 Plan shows two parallel lines leading south/southwest from the southern side of the Site across Lot 2 of the Nemetz property. The 1989 Plan has this note next to the parallel lines: "Approximate Location, 6' wide drain easement – see Plan #496 of 1945." Given that this lawsuit is all about JPM's drainage rights, the Nemetzes reasonably could be anxious that if the Court relied on that note (hereafter, the "Easement Note"), their case is lost.

Even if the Court were to take the 1989 Plan into evidence (more about that in a moment), the Court wouldn't credit the Easement Note, for two reasons. First, JPM conceded before trial (and again at trial) that it doesn't have deeded drainage rights across Lot 2, or any other portion of the Nemetz property. The Court wouldn't allow JPM to use the Easement Note to resurrect any deeded-easement claim at this late date.

Second, the Easement Note refers to land that wasn't conveyed to JPM in its deed. Courts typically are willing to rely on plans mentioned in deeds because plans sometimes illuminate what the parties to the deed intended to convey. The Easement Note doesn't do that – instead, it's a stray comment concerning a stranger's title. This case provides an example of the danger of relying on such notes. At trial, JPM attempted to put into evidence Plan #496, the purported source of the "facts" described in the Easement Note. Unadmitted Plan #496 locates the six-foot drainage easement not on the Nemetz property, but on a property formerly of one James W. Dennis – a property that (according to Trial Exhibit 9) is north of Lot 2 of the Nemetz property. Guess where the Dennis property is: it's part of the Site, and not the Nemetz property.

But the 1989 Plan also shows the purported locations of buildings on the Site as of May 1989. Information about those buildings bears on JPM's title, but now there's a different problem: using the 1989 Plan to establish that the buildings shown on the Plan were there in 1989 violates the Massachusetts version of the rule against hearsay. See Mass. G. Evid. § 802. The 1989 Plan has been around for some time, but it hasn't reached thirty years of age – the point at which a document becomes "ancient," and thereby less of a problem under the hearsay rule. See id. at § 803(16). The Court thus SUSTAINS the Nemetzes' objection to the admission of the 1989 Plan for purposes of documenting the extent of development of the Site as of 1989.

So the question of the amount of stormwater that has flowed under and onto the Nemetz property comes down to Mr. Volkin's testimony (that in 1971, a "chemical plant" was on the Site) and what the Court observed on its view. See Talmo v. Zoning Board of Appeals of Framingham, 93 Mass. App. Ct. 626 , 2018 WL 3543346 at *3 n.5 (2018) (trial court may treat as evidence information properly acquired on a view). The Court saw on its view that the Site is currently occupied by buildings and a parking lot that are consistent with Volkin's testimony about the use of the Site in the 1970s. The Site's buildings are industrial. They appear to have been built more than twenty years ago, and are consistent with structures dating from the 1970s. Virtually all of the areas surrounding the Site's buildings are paved and bleak. They reflect the practices of a bygone era in which Massachusetts industrial developers paid scant attention to minimizing impervious surfaces or enhancing a property's landscape.

The Court thus concludes from the admitted evidence and its view that the features that determine how much stormwater enters the Basin – that is, the Site's impervious surfaces -- haven't changed for at least 25 years. JPM thus has acquired by prescription an easement, appurtenant to the Site, to drain onto the Nemetz property stormwater from the existing Watershed Area depicted on Exhibit 5, from the Basin. As JPM's easement is not a deeded easement, the Nemetzes and their successors in interest to the Nemetz property retain their rights under M.P.M. Builders, LLC v. Dwyer, 442 Mass. 87 (2004), to relocate JPM's prescriptive easement.

In order to facilitate the preparation of a final, recordable judgment describing the easement, the Court ORDERS JPM to submit within 30 days of this decision a plan stamped by a professional land surveyor that depicts (a) the boundaries of the Watershed Area shown on Exhibit 5, (b) the location of the Basin, (c) the approximate path of the Pipe, (d) the location of the Pipe's End, and (e) the boundaries of the Nemetz property.