Brousseau v. Inhabitants of the Town of Southbridge

8 Mass. L. Rptr. 182
CourtMassachusetts Superior Court
DecidedFebruary 6, 1998
DocketNo. 9500850B
StatusPublished

This text of 8 Mass. L. Rptr. 182 (Brousseau v. Inhabitants of the Town of Southbridge) is published on Counsel Stack Legal Research, covering Massachusetts Superior Court primary law. Counsel Stack provides free access to over 12 million legal documents including statutes, case law, regulations, and constitutions.

Bluebook
Brousseau v. Inhabitants of the Town of Southbridge, 8 Mass. L. Rptr. 182 (Mass. Ct. App. 1998).

Opinion

Gaots, J.

In 1953, the plaintiffs, Raymond A. Brousseau and Alfreda M. Brousseau (the “Brousseaus”), purchased a lot with a single-family home at 153 Highland Street in Southbridge — Lot 88. The lot was located at the base of a natural drainage kettle adjoining a wetlands area. After purchasing the property, they cleared the area behind the house and seeded it to create a lawn that reached nearly to the [183]*183banking of the nearby brook, known aptly as Nuisance Brook. For many years, the lawn was relatively dry, certainly dry enough to be used by his children. Then, after developments were built on nearby Pinedale and Oak Streets, at elevations above their home, the drainage onto his land appeared to increase, and his lawn become wet and spongy in all but the driest of seasons and flooded during heavy rains. As a result, the Brousseaus file suit against the Town of Southbridge (the ’’Town”) claiming that the Town created a nuisance by failing to prevent the flow of surface water onto their property.1

All parties waived their right to a jury trial, and the two day trial commenced before me on January 21, 1998, beginning with my viewing of the property at issue. Based on that view, and the testimony and exhibits offered at trial, I make the following findings of fact and conclusions of law.

FINDINGS OF FACT

When the Brousseaus purchased Lot 88 in 1953, it was located, as it is today, at the end of Highland Street, at the base of a natural kettle. While Highland Street was developed in 1953, little else around it was. The area east and southeast of the property, which sloped down into Lot 88 and the area immediately around it, was entirely undeveloped — an open, naturally wooded area. The area south and southwest of Lot 88, including Lot 89, a 2V2 acre lot at the very end of Highland Street, was largely wetlands, unapproved for development. In 1982, the Brousseaus purchased Lot 89 which, along with the wetlands area to its south and southwest, remains undeveloped today.

Lots 88 and 89 are at roughly the low elevation point of a natural drainage area. Surface water naturally falls from the hills at higher elevations to its east and south, and finds its destination in or near these two lots, either in the wetlands or in Nuisance Brook. The water that enters Nuisance Brook in this watershed flows through Lots 89 and on the easterly side of Lot 88 into a pond two lots north of Lot 88, where it eventually feeds into a reservoir further north.

To the east of this natural drainage area, adjacent to it, lies a separate natural drainage area, which is where surface waters naturally flow from the higher elevations to the west and southwest. Although these two natural drainage areas are adjacent to each other, they are quite separate and distinct in terms of the origin of their surface water, and are not hydraulically connected. Flooding in one area has little effect on the other, although it may slightly affect the water table. A Nuisance Brook diversion was created to the southeast of Lot 88, in the wetlands area, which diverts some of the surface water from the natural drainage area around Lot 88 to the other natural drainage area.

At some time after 1953 but before 1981, private developers built housing developments to the east and south of Lot 88. The Pinedale Street development, located east of Lot 88, was built on the two slopes of a hill whose base was close to the edge of Lot 88. The water that drained from the two sides of the hill naturally collected in a drain at the bottom of the hill, and a drainage pipe emptied the water into a “paper street” (actually part of a neighbor’s driveway) that naturally flowed down the slope of the street onto Lot 88 and eventually into Nuisance Brook. The Oak Street development, south of Lot 88, had two catch basins that collected the water falling down the hill onto Oak Street, and these catch basins were connected to a drainage pipe that emptied this water into Lot 89.

By 1981, Lot 88 was becoming wetter, and the Brousseaus made demand on the Town of Southbridge to address the problem. The Town agreed to dredge Nuisance Brook, which had been filling with sand and silt. In return, the Brousseaus agreed to execute what was called a Perpetual Flowage Easement,, which released the Town from any damage claims resulting from its dredging of Nuisance Brook. The dredging helped the surface water problem only temporarily; Nuisance Brook over time refilled with sand and silt.

The Brousseaus have articulated three separate complaints to the Town concerning surface water draining onto their property, which they blame for the increased wetness and flooding of Lot 88. First, they contend that the surface water coming down the steep slopes of Pinedale Street onto the Brousseau property moves with great velocity, and consequently brings with it considerable sand and silt, which is filling up Nuisance Brook. In addition, the velocity of the water when it reaches the Brousseau property from Pinedale Street has produced erosion on their property, adding to the silt problem on Nuisance Brook. Second, they claim that a great volume of surface water from Oak Street flows onto Lot 89, thereby raising the water level on their property. Third, the Brousseaus complain that water flowing down Highland Street is flowing into the furthest westerly comer of Lot 89, raising the water level in the wetlands in the separate drainage area to the southwest of Lot 88.

The Town has made good faith efforts to respond to these complaints. In 1995, it again dredged Nuisance Brook and also installed a large concrete sedimentation chamber at the base of Pinedale Street, near the paper street, to catch and hold any sand from the roadway that is brought by the surface waters. This concrete basin is periodically checked and is collecting the sand in accordance with its design; it has yet to have exceeded its capacity. With respect to Highland Street, the Town has agreed to build a swale and channel to eliminate some of the overflow from Highland Street and direct it into the Nuisance Brook diversion.

The Brousseaus contend that these efforts, however well intended, are inadequate and seek injunctive relief to ábate the alleged nuisance from the drainage [184]*184of surface water from Pinedale, Oak, and Highland Streets onto their property.2 While they seek a general order directing the Town to abate this nuisance, they identify four specific steps that the Town should take to eliminate or at least diminish the wetness and flooding problems resulting from the flow of surface water onto their property, and ask that the Court order the Town to take each of these steps:

1. The construction of a drainage trench and weir near the paper street off Pinedale Street to slow the velocity of the surface water coming onto the Brousseau property, halt the erosion that has caused Nuisance Brook to be refilled with silt, and catch the sand and silt that was not caught by the sedimentation basin.
2. The collection of the surface water from the two catch basins at the base of Oak Street and the construction of a discharge line that will divert this surface water into the Nuisance Brook diversion in the adjacent watershed.
3.

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Bluebook (online)
8 Mass. L. Rptr. 182, Counsel Stack Legal Research, https://law.counselstack.com/opinion/brousseau-v-inhabitants-of-the-town-of-southbridge-masssuperct-1998.