MISC 17-000558

November 5, 2018

Norfolk, ss.



In September 2018, this Court issued findings of fact and conclusions of law in this dispute, one involving the acquisition by prescription of various drainage rights. See JPM Development, LLC v. Nemetz, 26 LCR 460 (2018) ("JPM I"). The Court did not issue a final judgment at the time of JPM I, thinking that it would be helpful for a final judgment in this case to include a "decision sketch." In the course of gathering information for that sketch, it became apparent that JPM I wasn't clear on a few issues. The Court thus issues these revised findings of fact and conclusions of law under Rule 52, Mass. R. Civ. P. This decision supersedes JPM I in its entirety.

* * *

In 2015, plaintiff JPM Development, LLC bought a former industrial site in Canton, Massachusetts, located at 869 Washington Street (the "Site"). The Site lies northeast and uphill from an abutting lot ("Lot 2"), one of two nearby properties owned by 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 currently empties into a buried pipe (the "Pipe"). The Pipe travels underground more than 200 feet south/southwest, beneath Lot 2, and emerges at the edge of a ditch that's also on Lot 2. 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 Lot 2 at least 150 feet until it reaches a culvert that runs beneath Sherman Street in Canton. (Sherman Street runs along the southern edge of Lot 2 and the Nemetzes' other property, which this Decision calls Lot 3. The Nemetz residence is on Lot 3. 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 Lot 2), 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 Lot 2. JPM sued the Nemetzes in this Court in September 2017 to establish JPM's drainage rights. The Nemetzes answered JPM's complaint but presented no counterclaims.

JPM initially asserted that it had a deeded drainage easement, arising under a document recorded at the Norfolk County Registry of Deeds (the "Registry") in January 1945 in Book 2562, Page 338 (the "1945 Easement"). After further investigation, JPM concluded that the 1945 Easement didn't give the Site drainage rights across the Nemetz properties. (The final judgment in this case will reflect that concession.) JPM decided to press instead a claim that it had acquired such rights by prescription.

The Court ordered the parties to proceed to trial on JPM's prescription claims, which the Court divided in two. The first issue for trial was whether JPM and its predecessors in interest to the Site had acquired prescriptive rights to keep the Pipe on Lot 2. The second issue for trial was whether JPM and its predecessors in interest had acquired prescriptive rights to drain stormwater onto Lot 2.

The parties appeared for trial on July 17 and 18, 2018. During the trial, the Court viewed the Site and the Nemetz properties. 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 Nemetzes live at 319 Sherman Street in Canton. They own Lots 2 and 3. (While the Nemetzes didn't buy those lots until 1993, this decision will call the lots the "Nemetz properties.") Lots 2 and 3 appear on a 1961 plan entitled "Plan of Land in Canton, Mass. drawn by E.E. Boudreau, Registered Civil Engineer," recorded at the Registry in the 1961 Plan Book, Plan No. 142 (the "1961 Plan"). A deed recorded at the Registry 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, their 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 an underground 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 on the Site was discharging via the pipe described in ¶ 4 anything besides stormwater. That interest prompted Volkin to enter the Nemetz properties and inspect the end of that pipe 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. Mr. Volkin is not certain that the pipe he observed during the inspections described in ¶ 5 is same the Pipe that exists today. Based on Volkin's testimony, the age of the Basin, and the topography of both the Site and Lot 2, the Court concludes that if the Pipe differs from the pipe Volkin inspected, the Pipe replaced the earlier pipe.

8. 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 (or any pipe attached to the southwest side of the Basin), out the Pipe's End (or the end of any similarly directed pipe), and into the ditch on Lot 2.

9. At the time of trial, impervious surfaces (several attached 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 buildings, the parking lot, the Basin and its underground discharge pipe 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 a pipe that emptied onto Lot 2 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.


The party that asserts it has gained easement rights by prescription (here, JPM) bears the burden of proving those rights. "An easement by prescription is acquired by 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 v. Hartigan, 464 Mass. 400 , 413 (2013).

The Court analyzes JPM's alleged acquisition of an easement for installation and maintenance of the Pipe separately from its JPM's drainage-easement claim. See Gentili v. Town of Sturbridge, 26 LCR 28 , 32 (2018). JPM offered no proof at trial that it or its predecessors in interest installed or maintained the Pipe. JPM also didn't offer proof that it or its predecessors in interest installed or maintained any drainage structure on Lot 2 that may have preceded the Pipe where it crosses Lot 2. JPM thus has not established that it has a prescriptive easement to maintain any pipe on Lot 2. The Court thus will enter judgment in favor of the Nemetzes, and against JPM, on JPM's claim that it has acquired a prescriptive easement to maintain the Pipe on Lot 2.

JPM's alleged drainage easement stands on a different footing. 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." Id. 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).

Relying on Mr. Volkin's testimony, JPM argues that the Site 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, as was whatever pipe Volkin inspected. According to the Nemetzes, that fact prevents JPM from proving "open" or "notorious" discharges onto Lot 2 via the Pipe or prior drainage structures on Lot 2. 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, and whatever pipe Volkin inspected over the years, by JPM and its predecessors in interest to discharge stormwater onto Lot 2 has been open and notorious. While most of the Pipe is buried, a landowner maintaining a reasonable degree of supervision over Lot 2 could discover it. That landowner also could ascertain, based on several obvious facts, that the Pipe and whatever pipe Volkin inspected were discharging stormwater from the Site. First, the ditch and its surrounding wetlands are apparent: they are visible from the occupied portions of the Nemetz properties and Sherman Street. Second, the flows in the ditch are so substantial that they support an extensive wetland on Lot 2, and are enough to have merited installation of a sizeable culvert beneath Sherman Street. Third, the Pipe's End (and the end of whatever pipe Volkin inspected) is exposed and above ground. No one has concealed the Pipe's End, nor had anyone concealed the end of the pipe Volkin inspected. Fourth, anyone allowed on the Nemetz properties can reach the Pipe's End easily. It's within 150 feet of the occupied portions of Lot 3 and is reasonably accessible. Mr. Volkin checked the Pipe's End or a similarly positioned pipe 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. Volkin concluded from his inspection of the Pipe's End or whatever pipe preceded the Pipe that it too drained the Site. (Recall that his objective was to monitor discharges from the chemical plant that occupied the Site. He had no interest in inspecting discharges, say, from the Nemetzes' home.)

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 drain onto Lot 2 through the Pipe, or gave that predecessor 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 (or the installation of prior pipes), who owned the Site or Lot 2 at the relevant times, the relationship between each property's owner at those times (if the properties even had separate owners), and what (if any) drainage rights were appurtenant to the Site prior to installation of the Pipe or prior pipes.

The latter point is crucial. Say that the owner of the Site filled its land in such a way that starting in 1930, the Site began diverting stormwater toward Lot 2, above ground, and without permission. If the diversion continued until 1950, the Site's owner would have acquired an above-ground drainage easement over Lot 2. If the Site's owner approached the owner of Lot 2 in 1951 to propose installing the Pipe within the Site's prescriptively acquired drainage channel over Lot 2, and if the owner of Lot 2 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 Lot 2 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 installation and maintenance of the Pipe, the Site's owner simply could resume discharging onto Lot 2 overland.

Unfortunately, the parties introduced at trial scant evidence of the history of the Site, Lot 2, 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 and not 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 is discharged from the Basin (via the Pipe or previously installed underground structures) in the direction of the ditch. As to the amount of stormwater the Site discharged for any continuous twenty-year period starting in 1971, Agreed Exhibit 5 calculates the area of the impervious surfaces in the current Watershed Area, approximately 145,000 square feet. Standing alone, Exhibit 5 doesn't prove that the Basin always drained 145,000 square feet, or drained such an area for a twenty-year continuous period starting in 1971 or thereafter. True, Mr. Volkin testified that there was a "chemical plant" uphill from Lot 2 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. The Nemetzes' contention is correct, 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 the Nemetzes' Lot 2. 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 by virtue of the 1945 Easement. Plan #496 of 1945 depicts the location of the 1945 Easement. The Court won't allow JPM to resurrect its 1945 Easement claims via the Easement Note.

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 comment concerning a stranger's title. This case provides an example of the danger of relying on such notes. If one looks carefully at Plan #496, one notices that it locates the six-foot drainage easement to which the Easement Note refers on a property formerly of one James W. Dennis. According to Trial Exhibit 9, Dennis's land is north of Lot 2. That puts the Dennis property within the Site, and not within Lot 2. So the Easement Note is incorrect about Lot 2.

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 onto Lot 2 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 , 629 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 several attached buildings and a parking lot. The buildings and parking lot are consistent with Volkin's testimony about the Site's use in the 1970s. The Site's buildings are industrial. They appear to have been built more than twenty years ago; their architecture is consistent with structures dating from the 1970s. Virtually all of the areas surrounding the Site's buildings are paved and unvegetated. 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 Nemetzes commented after the issuance of JPM I that there was no evidence at trial as to how much water has historically flowed through the Pipe, and thus JPM won't be able to prove that a future development of the Site will be able to live within whatever drainage rights JPM possesses. The Nemetzes are incorrect about historical flows: while JPM did not provide a gallons-per-day figure, the Court has concluded that the flows are those associated with naturally occurring stormwater falling within a specific Watershed Area. As for future development of the Site, nothing yet obligates the Court to make that call: Trenz requires a court to determine only whether the dominant estate's current flows are consistent with the dominant estate's prescriptive rights. See Trenz, 68 Mass. App. Ct. at 278-279. Neither party asked the Court to declare anything with respect to JPM's future development rights. The question of whether JPM's current drainage rights allow JPM to develop 36, 56 or 156 residential units on the Site is one that this lawsuit doesn't present, and one the Court won't answer at this time.

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 Lot 2 stormwater from the Watershed Area depicted on Exhibit 5, via the Basin. The Court will enter judgment in FAVOR of JPM, and AGAINST the Nemetzes, to that effect.

Following issuance of JPM I, the Nemetzes asked the Court to order JPM to relocate the Pipe. The Court DENIES that request, for three reasons. First, the Nemetzes' Answer contains no counterclaim for relocation of the Pipe. The parties also didn't litigate the issue at trial, and thus the Court can't treat the Answer as having been amended by express or implied consent. See Rule 15(b), Mass. R. Civ. P. Second, the Nemetzes may have made the request believing that the Court had concluded that JPM owned the Pipe. There's language in JPM I that gives that impression; this decision should make it clear that JPM doesn't own the Pipe. All that JPM has is a prescriptive drainage easement, one that the Nemetzes and their successors in interest to Lot 2 have the right to relocate. See M.P.M. Builders, LLC v. Dwyer, 442 Mass. 87 , 91-94 (2004). Third, M.P.M. Builders is clear that when the owner of a servient estate wishes to relocate an easement, that owner "must bear the entire expense of the changes in the easement." Id. at 92. The Nemetzes haven't explained why JPM should bear any costs of relocation, let alone the expenses of relocating a pipe that JPM doesn't own.

Judgment to enter accordingly.