RITA M. BATTLES v. ANTHONY TAM & Another.

• Court: Massachusetts Appeals Court
• Decided: August 18, 2025
• Docket: 24-P-0717
• Status: Unpublished

Opinion

NOTICE: Summary decisions issued by the Appeals Court pursuant to M.A.C. Rule 23.0, as appearing in 97 Mass. App. Ct. 1017 (2020) (formerly known as rule 1:28, as amended by 73 Mass. App. Ct. 1001 [2009]), are primarily directed to the parties and, therefore, may not fully address the facts of the case or the panel's decisional rationale. Moreover, such decisions are not circulated to the entire court and, therefore, represent only the views of the panel that decided the case. A summary decision pursuant to rule 23.0 or rule 1:28 issued after February 25, 2008, may be cited for its persuasive value but, because of the limitations noted above, not as binding precedent. See Chace v. Curran, 71 Mass. App. Ct. 258, 260 n.4 (2008).

COMMONWEALTH OF MASSACHUSETTS

APPEALS COURT

24-P-717

RITA M. BATTLES

vs.

ANTHONY TAM & another. 1

MEMORANDUM AND ORDER PURSUANT TO RULE 23.0

In connection with a dispute over two abutting Milton

properties separated by a stockade fence, the plaintiff, Rita

Battles, filed a complaint in the Superior Court asserting

claims of trespass and nuisance against her neighbors, Anthony

Tam and Katharine Bui, and the defendants counterclaimed.

Following a jury-waived trial, a judge issued a judgment in

favor of the plaintiff in the amount of $37,398.24 on the

complaint and issued a separate judgment in favor of the

plaintiff on the defendants' counterclaims. The defendants

appeal. We affirm.

1 Katharine Mui. Background. 1. Plaintiff's case. The plaintiff had lived

in her home for twenty-eight years, maintained "beautiful

lawns," and never changed the contour of the land which lies at

the foot of the Blue Hills. Her neighbors, the defendants, "dug

out" an adjacent lot that is significantly below the elevation

of the plaintiff's property. The plaintiff's stockade fence ran

along her property and divided it from the defendants' property.

After encountering problems with surface water flowing from the

plaintiff's property, under her fence, and onto their property,

the defendants attached boards to the bottom of the fence and

undertook additional blocking measures to divert the flow of

water. These blocking measures caused water to back up onto the

plaintiff's yard, turning it into a "lake" every time it rained.

Moss covered the plaintiff's yard and portions of the fence

rotted and collapsed.

2. Defendants' case. After the defendants purchased the

adjacent lot in 2015, they began building a residence by

changing the landscape grade, removing trees, and excavating for

a foundation. Sometime after completing construction, the

defendants noticed that during rainstorms surface water drained

from the plaintiff's property, beneath the stockade fence, and

onto their property. The defendants decided to divert the water

by blocking the opening at the bottom of the fence between the

properties with wooden boards and putting bags of mulch along

2 the fence. Additional evidence showed that portions of the

plaintiff's fence encroached on the defendants' property and

that damage to the fence was caused by age and New England

weather conditions.

Discussion. Pursuant to Rule 20(2)(h) of the Rules of the

Superior Court (2018) (rule 20), "the parties waived their right

to a jury trial and to detailed written findings of fact and

rulings of law" (quotation omitted). K & K Dev., Inc. v.

Andrews, 103 Mass. App. Ct. 338, 344 (2023). "Accordingly,

appellate review is conducted according to the same standard as

that applied to a judgment entered following a jury verdict."

Id., citing rule 20(8)(b). "We therefore review to determine

whether anywhere in the evidence, from whatever source derived,

any combination of circumstances could be found from which a

reasonable inference could be drawn in favor of the [prevailing

party]" (quotation and citation omitted). K & K Dev., Inc.,

supra.

We disagree with the defendants' assertion that the

evidence failed to show that their conduct caused any harm that

could result in liability for trespass or nuisance. The

testimony, exhibits, and reasonable inferences allowed the judge

to conclude that the defendants intentionally diverted surface

water from entering their property and caused it to pool like a

"lake" on the plaintiff's property every time it rained.

3 Evidence also showed that this condition, created by the

defendants over the plaintiff's protests, eventually destroyed

the plaintiff's lawn and damaged her fence. See Tucker v.

Badoian, 376 Mass. 907, 913 (1978) (liability may arise "from

accumulating channelled water and allowing it to back up onto

the land of another"); Mahoney v. Barrows, 240 Mass. 378, 380

(1922) (liability arises where defendant "retain[s] the surface

water, by means of a dam" and allows it to "flow[] back upon the

plaintiff's land"); Gillis v. Uxbridge, 103 Mass. App. Ct. 100,

105 (2023) (nuisance may be shown by evidence that defendant

caused surface water to pool "and continue onto the plaintiffs'

property"); Krasnecky v. Meffen, 56 Mass. App. Ct. 418, 424

(2002) ("landowner who sets in motion a force which, in the

usual course of events, will damage the property of another is

guilty of a trespass on such property" [citation omitted]).

Based on this evidence, the judge, as fact finder, could

conclude that the defendants caused substantial and unreasonable

damage to the plaintiff's property by damming the water and

causing it to flood and damage her yard and fence. The

plaintiff was entitled to receive damages in the amount

equivalent to the cost "of repairing the injury," Rattigan v.

Wile, 445 Mass. 850, 861 (2006), as indicated by the estimates

provided. The judge was not required to credit any of the

defendants' evidence to the contrary.

4 We also disagree with the defendants' contention that the

judge erred in issuing a judgment for the plaintiff on the

counterclaims. They contend that the undisputed evidence showed

both a trespass and a nuisance that resulted from the

plaintiff's fence encroaching on their property and the

"unnatural" flow of water from the plaintiff's property. The

weight and credibility of this evidence, however, "was well

within the province of the judge's role as fact finder in this

jury-waived trial," and we do not second-guess that assessment

on appeal. Goddard v. Goucher, 89 Mass. App. Ct. 41, 49 (2016).

Finally, the defendants argue for the first time on appeal

that the special verdict slip was defective because it did not

set forth each element of continuous trespass and nuisance as

required by rule 20. See rule 20(8)(a) ("judge shall, at a

minimum, answer special questions on the elements of each claim,

at a level of detail comparable to a special jury verdict

form"). The parties, however, jointly prepared the verdict

slips and consented to their use. Because they consented to the

procedure followed by the judge and raised no objection at

trial, the defendants have waived this argument on appeal. See

Century Fire & Marine Ins. Corp. v. Bank of New England-Bristol

County, N.A., 405 Mass. 420, 421 n.2 (1989) ("issue not raised

or argued below may not be argued for the first time on

appeal"); Motsis v. Ming's Supermkt., Inc., 96 Mass. App. Ct.

5 371, 383 (2019) ("objection to the form of a verdict slip must

be timely raised").

Judgments affirmed.

By the Court (Singh, D'Angelo & Hodgens, JJ. 2),

Clerk

Entered: August 18, 2025.

2 The panelists are listed in order of seniority.