2013 WL 2408810 (Mass.App.Ct.)
For Dockets See 2013-P-0268
Appeals Court Of Massachusetts.
119 FOSTER STREET, LLC & SAFETY, INC.,
Plaintiffs/Appellees,
v.
RTW REALTY, LLC., Defendants/Appellants.
No. 2013-P-0268.
2013.
On Appeal from the Essex Superior Court
Page 1
flooding by a preponderance of the evidence ... 6
b. The trial judge erred in finding that the Plaintiff
showed the Defendant caused the flooding by a preponderance of the evidence because of the timeline of
events that was established by the evidence ... 9
c. The trial judge erred in finding that the Plaintiff
showed the Defendant caused the flooding by a preponderance of the evidence because overwhelming
evidence indicates that other factors led to flooding
issues independent of the paving ... 10
Brief of Defendant-Appellant
Scott Gediman, Gediman & Gediman PC, 425
Broadway, Everett, MA 02149, (617) 389-7200,
scott@gedimanandgediman.com, BBO#: 558501.
*ii TABLE OF CONTENTS
TABLE OF AUTHORITIES ... i
ISSUES PRESENTED ... iii
STATEMENT OF THE CASE ... 1
ARGUMENT ... 5
I. The Superior Court's finding that the defendant
caused the flooding at issue by paving the area in
question lacked factual support, and was against the
weight of the evidence ... 5
a. The evidence produced at trial precludes the judge
from finding both that (1) the existing pavement on the
Plaintiff's property was feathered down to meet the
gravel on the Defendant's property, and (2) that the
Plaintiff showed that the Defendant caused the
II. The Superior Court's ruling that the “[d]efendant's
paving of its property certainly was not an ‘unreasonable’ use of its property. The method by which the
defendant paved this property however was unreasonable” was an improper application of “reasonable
use” doctrine in the private nuisance context ... 13
III. The Superior Court abused its discretion in ordering the Defendant to fix the nuisance in an *iii
exact manner: through the construction of a “French
drain.” ... 18
a. The judge's conclusion that implementation of a
“French drain” is an appropriate means to abate the
nuisance and ordering this specific solution was arbitrary and capricious and thus constituted an abuse of
discretion ... 20
1. The trial judge arbitrarily raised the concept of a
“French drain” on his own ... 21
2. The record is utterly barren of any evidence or
support for the judge's conclusion that a “French
drain” is an appropriate solution to this nuisance ... 23
b. The trial judge abused his discretion in fashioning
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2013 WL 2408810 (Mass.App.Ct.)
so specific an order because requiring the Defendant
to abate the nuisance in the particular manner prescribed, causes more harm to the Defendant than is
necessary to provide relief to the Plaintiff ... 25
1. The trial judge abused his discretion by specifying
the exact method by which the Defendant must abate
the nuisance ... 26
2. If it were proper for the trial judge to specify the
method by which the Defendant must abate the nuisance, he should have required the Defendant to restore the prior condition the Plaintiff argued existed by
installing a berm or lip at the seam between the two
paved areas ... 29
Page 2
Pendoley v. Ferreira 345 Mass. 309 (1963) ... 25, 27
Perez v. Bos, Hous. Auth. 379 Mass. 703 (1980) ... 19,
29
Specialized Tech. Resources, Inc. v. JPS Elastometrics
Corp. 80 Mass.App.Ct. 841 (2011) ... 18, 19
Triangle Ctr., Inc. v. Dep't of Pub. Works 386 Mass.
858 (1982) ... 15
Tucker v. Badoian 376 Mass. 907 (1978) ... 13, 14, 15,
16, 18
CONCLUSION ... 30
von Henneberg v. Generazio 403 Mass. 519 (1988) ...
15
JUDGMENT AND ORDER OF COURT BELOW ...
32
Statutes and Rules
CERTIFICATE OF COMPLIANCE ... 33
*iv TABLE OF AUTHORITIES
M.G.L. 131 § 40 ... 28
Mass.R.Civ.P. 52 (a) ... 5
*v Issues Presented
Cases
City of Worcester v. College Hill Props., LLC 80
Mass.App.Ct. 306 (2003) ... 19, 26
Davis v. Boston Elevated Ry. Co. 235 Mass. 482
(1920) ... 19, 20, 25
Desanctis v. Lynn Water and Sewer Comm'n 423
Mass. 112 (1996) ... 13, 15, 16, 18
1. Whether the Superior Court's finding that the defendant caused the flooding at issue by paving the area
in question is supported by the record.
2. Whether the Superior Court misapplied Massachusetts' “reasonable use” doctrine in finding a private
nuisance despite its finding that the defendant's use of
the property was not unreasonable.
Jillians Billiard Club of America, Inc. v. Beloff Billiards, Inc. 35 Mass.App.Ct. 372 (1993) ... 19
3. Whether the Superior Court erred in ordering an
exact manner by which the Defendant must fix the
nuisance, specifically by installing a “French drain.”
Metropolous v. MacPherson 241 Mass. 491 (1922) ...
25, 27, 29
*1 Statement of the Case
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2013 WL 2408810 (Mass.App.Ct.)
119 Foster Street in Peabody Massachusetts, the corporate Plaintiffs' place of business, sits at a lower
elevation than Washington Street and D'Orsi's Bakery,
the neighboring properties to the south. App. at 106.
Washington Street is at the top of a hill, at the bottom
of which lies Goldthwaite Brook. Tr. at 78-79. The
Plaintiff's property is on the slope of the hill, and the
drains on the Plaintiff's property are located at a low
point in the elevation. Id. During rainstorms, water
pours down off the roof of D‘Orsi's and out of its pipes
and sheds down the hill toward the low point of the
Plaintiff's property. Id. at 81. The Post-Pavement Map
of the property shows how water flows from the street
and bakery above down toward 119 Foster Street. Id.
at 106-07; see App. at 60.
In 2002, John Kunz purchased 119 Foster Street and
paved the area immediately surrounding his building
up to the property line on three sides of his land and
beyond the property line on the south side of his
property. App. at 104-05. When he paved, he did not
hire a watershed or engineering plant to create a
proper design or calculate the effect paving would
have on the flow of surface waters. Tr. at 247. The *2
paving was three inches thick, and on the south side, it
feathered down to meet the gravel on the adjoining lot.
Id. at 105. This adjoining lot is owned by RTW Realty,
LLC., the Defendant in this case. Id. at 108.
Much of the Defendant's land was covered in gravel,
rocks, and broken up pieces of old pavement. Id. at
107; Tr. at 347-49. This hindered the Defendant's
business because large eighteen-wheel trucks frequently needed to drive across the dangerous, uneven
surface. Tr. at 347-49.
In April of 2004, the Plaintiffs, 119 Foster Street,
LLC. and Safety, Inc., through their president Joel
Meyerson, purchased 119 Foster Street. App. at 108.
On May 21, 2004, the Defendant paved its property to
improve the driving conditions on the lot. Id. Mike
Page 3
Wood, the paver, testified that the Defendant's paving
had to meet the grades already set by Mr. Kunz's
paving, and the paving did not change the existing
grade of the gravel of contours of the gravel. Tr. at
365-68. Where he was physically able to do so,
however, Mr. Wood tried to direct the water so it
would stay away from both buildings as much as
possible. Id. at 368, 379; see App. at 56-57.
*3 The Plaintiffs sued the Defendant claiming that the
paving caused an increase in the flow of surface waters onto 119 Foster Street, which constituted a private
nuisance. Id. at 9-10. A three day trial resulted in much
conflicting evidence as to whether flooding was already occurring before the Defendant paved and
whether the Plaintiff caused the flooding by improperly caring for the drains on its property. See id. at 103;
Tr. at 66, 81-82, 114-16. After hearing from Jack
Kunz (Tr. at 198), Joel Meyerson, and Rebecca Kilborn (Tr. at 254), the real estate agent who sold the
property to Meyerson, the trial judge found that no
prior flooding had occurred, despite evidence that the
whole area of 119 Foster Street flooded frequently,
causing water to come out of the doors of Plaintiff's
buildings. App. at 106; Tr. at 368-72. There was ample
testimony that the drains needed to be cleaned regularly and that when not maintained, they caused water
to back up and flow up to 40 feet into Plaintiff's
buildings. Tr. at 218, 220, 266. Although the judge
made no finding as to the maintenance of the Plaintiff's drains, Mr. Meyerson testified that he had
cleaned the drains only once, had never cleared out the
pipes, and had no idea if *4 the pipes were working
properly. Tr. at 113-14. There was also a question as to
whether the Defendant's paving caused the increased
water flow by eliminating an alleged three-inch lip at
the edge of the existing pavement that the Plaintiff
claimed had redirected water around the property. Tr.
at 54, 84, 245-47, 288. Expert witnesses testified for
both sides, and the Plaintiff's witness based his conclusions on the existence of such a lip. Tr. at 72-74.
Despite finding that no such lip existed, the trial judge
found that the Defendant's paving caused the flooding.
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2013 WL 2408810 (Mass.App.Ct.)
Thus, the Superior Court ruled in favor of the Plaintiffs, finding that the paving constituted a nuisance
because “[t]he defendant's paving of its property certainly was not an ‘unreasonable’ use of its property.
The method by which the defendant paved this property, however, was unreasonable.” App. at 111. The
trial judge ordered the Defendant to pay $9,509 with
interest...in the amount of $3,185.67 and its costs of
action, as provided by law.” Id. at 115. He additionally
found that the Plaintiff is entitled to equitable relief.
Id. at 113. He fashioned a highly specific order that
requires the Defendant to hire a professional engineer
to design a “French drain” *5 arrangement to lead
water coming from Washington Street in a swale to
Goldwaithe Brook, noting that “[t]his relief seems the
most reasonable solution to the problem.” Id. at
113-15.
The Defendant appeals the judgment below on three
grounds. First, the Superior Court's determination that
the Defendant's paving of his property was the cause
of the flooding on Plaintiff's property is not supported
by the record. Second, the finding that the paving
constituted a private nuisance constitutes a misunderstanding of the law and a misapplication of
well-settled principles of Massachusetts' “reasonable
use” doctrine. Finally, the Superior Court abused its
discretion by requiring the Defendant to abate the
nuisance through the specific method of implementing
a “French drain.”
Argument
I. The Superior Court's finding that the Defendant
caused the flooding at issue by paving the area in
question lacked factual support, and was against the
weight of the evidence.
The Superior Court's finding that the Defendant's
paving caused the Plaintiff's flooding is unsupported
by the record and against the weight of the evidence.
Page 4
Looking at the evidence presented at trial shows that
*6 the judge's findings of fact on this issue were
“clearly erroneous” and cannot be upheld. See
Mass.R.Civ.P. 52 (a).
a. The evidence produced at trial precludes the judge
from finding both that (1) the existing pavement on the
Plaintiff's property was feathered down to meet the gravel on the Defendant's property, and (2) that the
Plaintiff showed that the Defendant caused the
flooding by a preponderance of the evidence.
Because the judge found that the pavement put in by
Jack Kunz, the prior owner of 119 Foster Street, was
feathered down to meet the gravel on the Defendant's
property, the judge's finding that the Defendant caused
the flooding for the reasons stated in his Memorandum
of Decision was clearly erroneous. The finding that
the pavement was feathered, rather than left with a
sharp three-inch drop at its edge, is supported by testimony from both sides. Tr. at 70-71, 82-8, 139, 360.
But the acknowledgement of feathering in his Memorandum of Decision logically forecloses the judge
from also finding that the Defendant's paving caused
the flooding in two of the three ways he lists in that
Memorandum.
The judge found that the paving caused the flooding
because: (1) it eliminated the three-inch *7 difference
in elevation that existed before paving, which caused
an increased flow of water onto the Plaintiff's land; (2)
it eliminated a natural swale testified to by Mr. Kunz;
and (3) the pavement absorbs less water than the
gravel had been absorbing. App. 109-10. The first and
third of these cannot stand in light of the judge's
finding that there was no lip at the edge of the Plaintiff's pavement prior to the Defendant's paving.
Once the judge concluded that there was no lip, he
could not have credited the testimony of the Plaintiff's
expert witness. The expert, Scott Cameron, based his
assessment on the assumption that a lip existed at the
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2013 WL 2408810 (Mass.App.Ct.)
edge of the pavement before the Defendant paved. Tr.
at 54, 84, 288. He found that the lip created a path
which directed water around the Plaintiff's property
rather than onto it, and that the Defendant's paving
eliminated that existing “berm.” Id. at 53-54. If a berm
never existed at the edge of the property, the Plaintiff's
expert provided no useful evidence as to the cause of
the flooding.
In the absence of reliable testimony from the Plaintiff's expert, the only evidence pertaining to the effect
the Defendant's paving had on the flow of *8 water
came from the Defendant's expert. He testified that
prior to the Defendant's paving, the water would have
flowed over the feathered seam onto the Plaintiff's
land and that the watershed area during a rainstorm
thus would have included the Plaintiff's paved area as
well as the Defendant's gravel covered lot. Tr. at 290.
Therefore, he said, the area of the watershed is actually smaller now than it was before paving because of
grade changes that send more water toward
Goldthwait Brook. Id. at 291. The Pre-Pavement and
Post-Pavement Maps he relied on confirm this testimony. See App. at 58-59. In essence, he testified that
less water is flowing toward the Plaintiff's catch basin
post-pavement so the elimination of the three-inch
difference in elevation between the pavement and
gravel could not have caused the additional flooding.
Tr. at 291-92.
The fact that the Defendant's expert is the only source
of engineering testimony that the judge could have
credited also invalidates the judge's conclusion that
the difference in how much water the ground absorbs
caused the flooding. The Defendant's expert testified
that in his report he took into account the difference in
the amount of water absorbed by gravel *9 versus
pavement, and he still found that the Defendant's
paving reduced the watershed area and did not cause
the flooding. Tr. at 292-93. There was nothing in
evidence to suggest the contrary.
Page 5
the Defendant's expert witness, the judge's findings
still cannot stand. In that case, there is still no positive
evidence indicating that the Defendant indeed caused
the flooding by changing the elevation difference or
by replacing gravel with pavement. The burden was
on the Plaintiff to prove that the Defendant caused the
flooding by a preponderance of the evidence. Therefore, the judge was clearly erroneous in finding otherwise in the absence of any evidence to support the
Plaintiff's position.
b. The trial judge erred in finding that the Plaintiff
showed the Defendant caused the flooding by a preponderance of the evidence because of the timeline of
events that was established by the evidence.
Myerson bought the property on April 20, 2004 and
the paving happened 28 days later on May 18, 2004.
There is a bill for the paving job in evidence that is
clearly dated, (App. at 59) and the judge concluded
that this was the correct timeline in his Memorandum
*10 of Decision. Id. at 107. The Plaintiff spent less
than one month on the property before paving occurred. That is hardly enough time to know the
flooding situation prior to paving. Mr. Meyerson
could not have known whether the paving caused a
difference in water flow or not.
More significantly, the judge also found that the
flooding did not begin until 2005. App. at 108. It
makes little sense, if any, to conclude that the Defendant caused the flooding when the pavement was in
place for a year before any flooding occurred. No
evidence suggested a reason for the delayed impact,
and therefore, the judge's conclusion was clearly erroneous.
c. The trial judge erred in finding that the Plaintiff
showed the Defendant caused the flooding by a preponderance of the evidence because overwhelming
evidence indicates that other factors led to flooding
issues independent of the paving.
Even if the judge chose not to credit the testimony of
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2013 WL 2408810 (Mass.App.Ct.)
The finding that the Defendant caused the flooding
cannot stand because an overwhelming amount of
evidence shows that the flooding was caused by the
location of 119 Foster Street. The property is naturally
susceptible to flooding because it is at the bottom of a
hill below an area that is infamous for *11 extremely
heavy flooding during rainstorms. App. at 105-06.
Although the trial judge credited Mr. Kunz's claim that
there were no flooding issues when he owned the
property (App. at 106), there is no reasonable way to
interpret the evidence to support this conclusion. The
main issue with this finding is that, as Mr. Kunz testified, he installed a catch basin when he owned the
property. Tr. at 235. At trial he stated that he did so
because his street sweepers had trouble getting over
the existing slit trench. Id. But as pointed out to him on
cross examination, his explanation at the deposition
for putting in the drain was to catch water running
down off the face of the building, and he never mentioned an issue with his street sweepers. Id. at 235,
240-41. Clearly he did not put in the drain for the
reasons he stated, or he would not have completely
changed his story. Mr. Kunz had an obvious motive to
conceal the flooding during this case; he sold the
building to the Plaintiff without disclosing the water
problem. There is no reasonable way to acknowledge
the fact that he installed a very large drain on his
property without concluding that he did *12 so because a large amount of water was flowing onto his
land.
Moreover, another witness, Mr. Wood, testified that
the whole area floods all the time Tr. at 369. He, in
fact, witnessed flooding at 119 Foster Street numerous
times when Mr. Kunz owned the building and after
Mr. Meyerson acquired the property, and saw water
going into the loading dock and coming out of the
doors during heavy rains. Tr. at 370-72. In addition to
Mr. Wood's testimony, Kunz's own son-in-law, Rick
Duby, testified that flooding was “pretty severe” before the drains were cleaned. Id. at 266-67.
Page 6
Evidence also supported the notion that the Plaintiff's
drains and pipes were not properly maintained, which
contributed to the flooding. Mr. Kunz testified that the
drains need to be cleaned about once a year. Tr. at 218.
He also stated that not cleaning them causes the pipes
to get plugged up, and that he was not certain he had
ever cleaned the pipes. Id. at 220. Mr. Duby testified
that before the pipes were cleaned there was water 35
and 40 feet in the building. Tr. at 266. Moreover,
despite the fact that Mr. Meyerson knew that water
would back up and flow into the buildings during even
small rain storms when *13 the drains were not clean,
Mr. Meyerson testified that he cleaned the drains only
once, that he never found the exit point of the pipes,
and that he had never blown out the piping. Id. at
113-14. He admitted that he did not know if the drains
were operating correctly or not. Id. at 114. In short,
there was ample support for the fact that the drains
would back up because they were not cleaned
properly, causing excess water to flow into Plaintiff's
buildings. Thus, the judge's determination that the
Plaintiff showed the Defendant's paving was the cause
of the flooding by a preponderance of the evidence
was clearly erroneous.
II. The Superior Court's ruling that the “[d]efendant's
paving of its property certainly was not an ‘unreasonable’ use of its property. The method by which the
defendant paved this property however was unreasonable” was an improper application of “reasonable
use” doctrine.
In his Order, the Superior Court judge demonstrated a
serious misunderstanding of the legal standard for a
“reasonable use” defense. He stated that the
“[d]efendant's paving of its property certainly was not
an ‘unreasonable’ use of its property. The method by
which the defendant paved this property however was
unreasonable.” App. at 110. This is a clear misapplication of the law. Case law *14 dictates that because
the court found that the defendant's paving was a
reasonable use of the property, the court was required
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2013 WL 2408810 (Mass.App.Ct.)
to also find that the plaintiff failed to meet his burden
of proof to sustain a private nuisance action. See DeSanctis v. Lynn Water & Sewage Comm‘n, 423 Mass.
112, 115-18 (1996); Tucker v. Badoian, 376 Mass.
907, 917-18 & n.2 (1978). Therefore, the court should
have found that the Defendant was not liable for the
damage to Plaintiff's property.
In Tucker v. Badoian, the Supreme Judicial Court first
announced its intention to adopt the “reasonable use”
standard for private nuisance actions. 376 Mass. 907,
917-18 & n.2 (1978) (Kaplan, J. concurring). The
majority of the Court, through Justice Kaplan's concurring opinion, stated that “each possessor is legally
privileged to make a reasonable use of his land, even
though the flow of surface waters is altered thereby
and causes some harm to others, but incurs liability
when his harmful interference with the flow of surface
waters is unreasonable.” Id. at 918 n.2 (quoting Armstrong v. Francis Corp., 120 A.2d 4, 8 (1956)) (internal quotation marks omitted). This flexible rule is a
question of fact in each case to be *15 determined
“upon a consideration of all the relevant circumstances, including such factors as the amount of harm
caused, the foreseeability of the harm which results,
the purpose or motive with which the possessor acted,
and all other relevant matter.” Id. (internal quotation
marks omitted). Because of the strong interest society
has in putting land to its best use, it is proper to consider “whether the utility of the possessor's use of his
land outweighs the gravity of the harm which results
from his alteration of the flow of surface waters.” Id.
(internal quotation marks omitted).
The Supreme Judicial Court has since applied the
Tucker standard in numerous cases, culminating in the
1996 decision, DeSanctis v. Lynn Water and Sewage
Commission, 423 Mass. 112 (1996), which directly
controls the case at bar. See also von Henneberg v.
Generazio, 403 Mass. 519, (1988); Triangle Ctr., Inc.
v. Dept. of Public Works, 386 Mass. 858, (1982). Just
as the Superior Court judge found here, the jury in
DeSanctis, answering a special question, found that
Page 7
the defendant had not made an unreasonable use of its
land. 423 Mass at 114. The Supreme Judicial Court
held that “because the jurors determined that [the *16
defendant] did not use its land unreasonably, the
plaintiff has not sustained his burden of proof.” Id.
The negligent diversion of water is not sufficient to
carry this action. Id. at 117. The Court held instead
that a finding of unreasonable use is “essential to the
successful maintenance of a private nuisance claim for
diversion of surface waters.” Id.
Because the trial judge explicitly stated his finding
that paving was “certainly not an ‘unreasonable’ use
of [the defendant's] property,” DeSanctis conclusively
forecloses the finding of a private nuisance in this
case. See id. at 117-18. As the DeSanctis court stated,
the conclusion that the Defendant has not made unreasonable use of its land “is binding on the plaintiff”
and “conclusive as to the plaintiff's claim.” Id. The
Plaintiff has simply failed to sustain its burden of
proof with regard to an essential element of this claim.
See id. Therefore, this Court must reverse the trial
court's finding of liability, as it constitutes an improper
application of binding precedent. See id.
Even disregarding the trial judge's explicit statement
that the Defendant did not use its property unreasonably, applying the Tucker standard to the *17 facts of
this case precludes the finding of liability. See Tucker
376 Mass. at 918 n.2. First, there is absolutely no
evidence, nor has the plaintiff ever contended, that the
defendant had an improper motive in deciding to pave
its land. See id. Additionally, the harm that paving
allegedly caused was not foreseeable to the Defendant.
See id. The prior owner of the Plaintiff's property, Jack
Kunz, had paved the land on 119 Foster Street without
causing flooding that he or the Plaintiffs found troublesome. The Defendant had no reason to think that
doing to his land exactly what had been done to the
Plaintiff's land would cause harm to or upset the
Plaintiff. Moreover, as Mr. Wood testified, the Defendant's paving had to meet the grades already set by
Mr. Kunz's paving, and the paving did not change the
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2013 WL 2408810 (Mass.App.Ct.)
existing grade of the gravel or contours of the gravel.
Tr. at 365-68. Where he was physically able to do so,
however, Mr. Wood tried to direct the water so it
would stay away from both buildings as much as
possible. Id. at 368, 379; see App. at 56-57. The Defendant could not have foreseen that paving in a way
that sent water away from Plaintiff's property as much
as possible would cause more flooding. The Defendant *18 also knew that the Plaintiff had drains and
catch basins that, if properly maintained, should have
taken care of surface waters that flowed onto its
property. Therefore, the Defendant could not have
foreseen that paving his own land could cause harm to
the Plaintiff.
Finally, weighing the utility of paving the land against
the harm caused also strongly favors the Defendant in
this case. See Tucker 376 Mass. at 918 n.2. Paving the
land was necessary to put the land to its best use. See
id. This area, which had previously been covered in
gravel and broken up pieces of pavement, was dangerous for the large trucks and other vehicles that
often drove over it. App. at 107; Tr. at 347-49. Paving
was all but necessary to create a safe driving surface
for the Defendant's business to effectively operate on
the property. The utility of this use of the land far
outweighs any small increase in the flow of surface
water that may have occurred on the plaintiff's property. See Tucker 376 Mass. at 918 n.2.
Each of these Tucker factors weighs in favor of a
finding that the paving of the Defendant's land was a
reasonable use of the property. See id. Therefore, the
*19 court's finding of liability in this case cannot be
upheld. See id.; DeSanctis 423 Mass. at 114, 117-18:
III. The Superior Court abused its discretion in ordering the Defendant to fix, the nuisance in an exact
manner: through the construction of a “French drain.”
The Superior Court abused its discretion in ordering
the Defendant to abate the nuisance through the con-
Page 8
struction of a “French drain.” Specialized Tech. Resources, Inc. v. JPS Elastometrics Corp., 80
Mass.App.Ct. 841, 848 (2011) (noting that appellate
courts apply “abuse of discretion” in reviewing an
order for an injunction). The reasonableness of an
injunction depends on the particular factual context of
each case. Id. Jillians Billiard Club of America, Inc. v.
Beloff Billiards, Inc., 35 Mass.App.Ct. 372, 376
(1993). The reviewing court must assess the scope of
the injunction on a comparative appraisal of all of the
facts. Specialized Tech. 80 Mass.App.Ct. at 845; Jillians, 35 Mass.App.Ct. at 376.
In this case, the trial judge abused his discretion in two
ways. First, in the absence of any evidence as to the
appropriateness and effectiveness of implementing a
“French drain,” the judge's order *20 requiring the
Defendant to build one is arbitrary and capricious. See
Davis v. Boston Elevated Ry. Co., 235 Mass. 482, 496
(1920). Second, the trial judge fashioned a remedy that
is far more burdensome to the Defendant than is necessary to provide complete relief to the Plaintiff. City
of Worcester v. College Hill Props., LLC, 80
Mass.App.Ct. 757, 763 n.18 (2003); Perez v. Bos.
Hous. Auth., 379 Mass. 703, 730 (1980). Therefore,
this Court should strike the portion of the order requiring the specific implementation of a “French
drain” and leave the order more generally requiring
the Defendant to hire an engineer to devise and build a
solution to abate the nuisance. Alternatively, if this
Court finds it necessary to prescribe an exact method
by which the Defendant must fix the problem, the
Court should require the Defendant to restore the
situation that the Plaintiff contends existed prior to
paving by inserting a berm or lip at the seam in the
pavement so that water is redirected around the property.
a. The judge's conclusion that implementation of a
“French drain” is an appropriate means to abate the
nuisance and ordering this specific solution was arbitrary and capricious and thus constituted an abuse of
discretion.
© 2013 Thomson Reuters. No Claim to Orig. US Gov. Works.
2013 WL 2408810 (Mass.App.Ct.)
*21 The trial judge's order forcing the Defendant to
abate the nuisance through the specific “French drain”
method was the result of “arbitrary determination,
capricious disposition, [and] whimsical thinking,”
making it a clear abuse of discretion. See Davis, 235
Mass. at 496 (defining what constitutes an “abuse of
discretion”). Because it had no basis in the record and
instead constituted an “exhibition of ungoverned will”
and “a manifestation of unbridled power,” this Court
should find that requiring the Defendant to employ
this specific method of abatement was inappropriate
and strike out that portion of the order. See id.
The trial transcript unequivocally reveals that the
Superior Court judge, unprovoked by either party,
brought the idea of a “French drain” as a potential
method of abatement into the trial. It also confirms
that he had no basis for concluding such a solution was
appropriate. As a result, his decision to order the Defendant to build a “French drain” was an abuse of
discretion.
1. The trial judge arbitrarily raised the concept of a
“French drain” on his own.
*22 On the first day of trial, the Plaintiff's expert
witness, Scott Cameron, testified about the impact of
the Defendant's paving on the flow of surface waters
onto
the
Plaintiff's
property.
During
cross-examination of that witness, the judge interjected and mentioned the concept of a “French drain”
for the first time. The judge asked the witness,
What if you dug out along the seem [sic], so called, a
two foot wide section, one foot on plaintiff's property,
one foot on defendant's property, and you replaced it
with packed gravel,...along that former seem [sic], all
the way down to the point where it drains towards the
brook, would that likely impact the flooding?...It's
essentially a French drain.”
Tr. at 85. Mr. Cameron responded:
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It's difficult to say because I haven't done any calculations to figure out what, you know what the volume
of this channel needs to be...Conceivably that may
work. But again, the volume of water coming down,
it's difficult to say without having done that; that level
of engineering on it.
Id. at 85-86.
On the second day of trial, the judge interrupted the
direct examination of John Kunz, the prior owner of
119 Foster Street, to boast, “Now, I came up with a
brilliant idea yesterday.” Tr. at 223. He went on to
describe the concept of a French drain to the witness,
and although Mr. Kunz is not an engineer nor did he
*23 serve as an expert witness at trial, the judge asked
whether Kunz thought the idea was practical. Id. at
223-25. The witness responded, “I think so. You need
to have an engineer design it...[Y]ou have to know the
velocity of the water is going to be when it hits the
pavement. They have a way of figuring that out.” Id. at
225-27.
Clearly, the idea of a “French drain” was the judge's
own invention. Although he had latitude to fashion an
appropriate injunctive order, he was not free to “exhibit[] unbridled will” to come up with an arbitrary
command that the Defendant must follow at its peril.
The testimony and exhibits from the trial provided no
affirmative evidence pertaining to a “French drain.”
All support for the idea came from the judge alone.
2. The record is utterly barren of any evidence or
support for the judge's conclusion that a “French
drain” is an appropriate solution to this nuisance.
Not only did the judge come up with the concept of a
“French drain” on his own, but he was also unable to
gain any concrete support for the notion that it would
actually abate the nuisance. Each witness he questioned simply testified that it would remain *24 unclear whether a “French drain” would be effective
© 2013 Thomson Reuters. No Claim to Orig. US Gov. Works.
2013 WL 2408810 (Mass.App.Ct.)
unless and until an engineer could perform more calculations and additional research on the site. Tr. at
85-86, 225-27. During closing arguments, he even
admitted that “in terms of injunctive relief, I haven't
heard any expert testimony as to what will remedy this
situation, have I?” Tr. at 423 (emphasis added).
Counsel for the Plaintiff responded by reminding the
judge that “Your Honor had that now termed brilliant
thought with respect to the French drain.” Id. at 424.
The judge interrupted to confirm that “Right. But [Mr.
Cameron, the expert witness for the Plaintiff] didn't
know if that would help.” Id. Indeed, neither Mr.
Cameron, Mr. Kunz, nor the Defendant's expert witness gave any indication that “French drain” was the
proper solution. See Tr. at 85-86, 225-27, 277-308.
In short, as the judge himself acknowledged, the record is utterly barren of any evidence that a “French
drain” will resolve the Plaintiff's problem. There is no
evidence to suggest that a “French drain” would effectively fix the drainage issue. No measurements or
calculations were performed to see if a “French drain”
can physically be placed in that *25 spot. There was
no analysis of the impact a “French drain” will have
on the environment or Goldthwait Brooke, which is
conservation land. There is simply no reason to believe that implementing a “French drain” is feasible,
or even possible. The judge is not an engineer; he had
no basis upon which he could determine whether this
would be an appropriate solution to the nuisance.
Plainly, the trial judge's only basis for requiring this
specific solution was his self-proclaimed “brilliance”
in coming up with it. Although “abuse of discretion” is
quite a high standard, the trial judge, by flagrantly
disregarding the record before him, certainly met that
threshold in this case. He took it upon himself to serve
as an expert in engineering, paving, surface water flow
patterns, and environmental impact to fashion a remedy that resulted from anything but “the exercise of
discriminating judgment within the bounds of reason.”
Davis, 235 Mass. at 496. Therefore, this Court should
strike the portion of the order specifically requiring
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implementation of a “French drain” to abate the nuisance.
*26 b. The trial judge abused his discretion by requiring the Defendant to abate the nuisance in the
particular manner prescribed, through implementation
of a “French drain,” because this method causes more
harm to the Defendant than is necessary to provide
relief to the Plaintiff.
The trial judge abused his discretion by requiring the
Defendant to specifically implement a “French drain”
because such a remedy will cause unnecessary hardship for the Defendant. See Pendoley v. Ferreira, 345
Mass. 309, 313 (1963); Metropoulos v. MacPherson,
241 Mass. 491, 501 (1922). By specifying the exact
method by which the Defendant must abate the nuisance, he made the order more intrusive than necessary to fully abate the harm to the Plaintiff. See Pendoley, 345 Mass. at 313; Metropoulos v. MacPherson,
241 Mass. at 501. Even if it were proper to prescribe
an exact solution, the judge abused his discretion by
choosing anything but restoring the land to its prior
condition through insertion of a berm or lip at the
seam on the pavement.
1. The trial judge abused his discretion by specifying the exact method by which the Defendant
must abate the nuisance.
Although the scope of an injunction is generally
within the discretion of the trial judge, “an injunction
is subject to a traditional principle of *27 judicial
restraint that injunctive relief should be no more burdensome to the defendant [enjoined party] than necessary to provide complete relief to the plaintiff.” City
of Worcester 80 Mass.App.Ct. at 763 n. 18 (internal
quotation marks omitted). In this case, the judge had
no need to specify the exact method by which the
Defendant should abate the nuisance when he could
have simply required the Defendant to hire an engineer to devise the best solution.
© 2013 Thomson Reuters. No Claim to Orig. US Gov. Works.
2013 WL 2408810 (Mass.App.Ct.)
In determining the type and scope of an injunctive
order, the court should take into account the damage it
will cause to the enjoined party compared to the benefit the other Party will reap. Pendoley, 345 Mass. at
313; see Metropoulos v. MacPherson, 241 Mass. at
501. In terms of harm to the Defendant, there is no
evidence as to how difficult or expensive a French
drain will be to install. All the record reveals is that an
engineer's expertise is required to assess the site and
determine what type of instrument will adequately
solve the problem. See Tr. at 85-86, 225-27. There is
also no evidence that this solution will benefit the
Plaintiff. From the record, there is no way of knowing
whether this device will *28 significantly reduce the
flow of water onto the Plaintiff's property.
Although the trial record contains no evidence as to
the extent of the hardship to the Defendant or benefit
to the Plaintiff, Richard Williams evaluated the
judge's order requiring a “French drain” and wrote a
letter explaining his opinion on its feasibility. App. at
124-25. A “French drain” would not significantly
reduce the flow of water into the catch basin, would be
nearly impossible to maintain, and is not normally
used in this type of situation. Id. at 124. This solution
would also require permits from the city of Peabody to
deal with redirecting water to the Goldthwaite Brooke,
which there is no guarantee of obtaining. Id.; see
M.G.L. 131 § 40. Indeed, in his own assessment of the
judge's order, the Plaintiff's expert, Scott Cameron,
agreed “that an application to the Conservation
Commission under the Wetlands Protection Act and
local Wetlands Regulations will be necessary.” App.
at 136. Thus, according to Mr. Williams, the order will
cause extreme hardship to the Defendant and may in
fact be impossible to execute. See App. at 124-25.
*29 Looking at the Wetlands Protection Act confirms
that the Defendant cannot simply implement the
judge's order unless it can first obtain a permit. See
M.G.L.131 § 40. The Act prohibits the removal, filling, dredging or altering of any land surface, water
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levels or vegetation in wetland, riverfront, and other
areas without municipal approval. Id. Before altering
the flow of waters toward Goldthwaite Brook, therefore, the Defendant would need to obtain approval
from the Peabody Conservation Commission. See id.;
ch. 32 of the Code of the City of Peabody. The permit
process can be difficult and time consuming, and there
is no way of knowing whether the Commission will
approve the request to divert water to the brook. The
Defendant's ability to carry out the order depends
entirely on the Commission's decision, and therefore,
compliance may be utterly impossible.
On the other hand, the Plaintiff will not derive much
benefit from the implementation of a “French drain.”
See App. at 124-25. The drain will not significantly
reduce the flow to the catch basin and will leave the
situation very much the same. Id. This order, therefore, should not stand as it would “entail an expenditure by [the enjoined party] which would be *30 disproportionate to the advantages derived by the complainant...from such change”. Metropolous, 241 Mass
at 501.
In short, requiring that the Defendant specifically
implement a French drain is “more intrusive than it
ought reasonably be to ensure the accomplishment of
the legally justified result.” Perez, 379 Mass. at 730.
The Court abused its discretion in fashioning so specific an order, rather than simply requiring the Defendant to hire an engineer to determine the appropriate solution to the nuisance.
2. If it were proper for the trial judge to specify the
method by which the Defendant must abate the nuisance, he should have required the Defendant to restore the prior condition the Plaintiff argued existed by
installing a berm or lip at the seam between the two
paved areas.
If the judge were to order a specific method by which
to fix the nuisance, the absence of evidence to what
© 2013 Thomson Reuters. No Claim to Orig. US Gov. Works.
2013 WL 2408810 (Mass.App.Ct.)
method would work suggests that he should have
ordered the Defendant to reinstate the former condition of the property. The Plaintiff argued throughout
trial and in its Request for Findings of Fact and Rulings of Law that a three-inch lip existed at the edge of
the paving that already existed. Tr. at *31 35, 39,
83-84; App. at 81-82. This lip, or “berm,” directed the
flow of water around the property instead of onto it
according to the Plaintiff. Tr. at 35, 39, 83-84; App. at
81-82. As minimal as this evidence may be, the record
at least contains some support for the notion that this
particular solution will abate the nuisance. Therefore,
the judge, rather than fashioning his own engineering
solution, should merely have ordered the Defendant to
install a berm to redirect water in the same direction it
allegedly travelled before the Defendant paved.
Conclusion
For the foregoing reasons, the judgment of the Superior Court, finding the Defendant liable for the damage
to the Plaintiff's property, should be reversed.
119 FOSTER STREET, LLC & SAFETY, INC.,
Plaintiffs/Appellees, v. RTW REALTY, LLC., Defendants/Appellants.
2013 WL 2408810 (Mass.App.Ct. ) (Appellate Brief )
END OF DOCUMENT
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