Town of Abington v. Cutter

43 N.E.2d 129, 311 Mass. 715, 1942 Mass. LEXIS 788
CourtMassachusetts Supreme Judicial Court
DecidedJune 23, 1942
StatusPublished
Cited by1 cases

This text of 43 N.E.2d 129 (Town of Abington v. Cutter) is published on Counsel Stack Legal Research, covering Massachusetts Supreme Judicial Court primary law. Counsel Stack provides free access to over 12 million legal documents including statutes, case law, regulations, and constitutions.

Bluebook
Town of Abington v. Cutter, 43 N.E.2d 129, 311 Mass. 715, 1942 Mass. LEXIS 788 (Mass. 1942).

Opinion

Cox, J.

This is a bill in equity by two towns to enjoin the defendants, who are the owners of cranberry bogs, from interfering with the natural flow of water into a pond that is a part of the plaintiffs’ water supply, from allowing any water to flow into that pond that shall have become adversely affected by flowing through or standing in ditches in the cranberry bogs, and from discharging any waste, refuse or polluting matter that may in any way corrupt or impair the quality of the water in that pond or render it [716]*716injurious to health. The suit was referred to a master. The plaintiffs’ exceptions were overruled, and the master’s report was confirmed by interlocutory decree. The plaintiffs appealed from the final decree dismissing the bill.

The plaintiffs were authorized by St. 1885, c. 206, to take the waters of Great Sandy Bottom Pond, hereinafter referred to as the Great pond, in the town of Pembroke, and the waters that flow into and from the same, or any part thereof. Other powers contained in said c. 206 are not involved. Acting under this authority, the plaintiffs took possession under a deed of taking dated July 2, 1886, of the Great pond with its “inlets, outlets and shores” for the purposes set forth in said statute. The plan that was filed with the deed, and referred to therein, shows the Great pond, the parcel of land at its northerly end, which also was taken by the plaintiffs, and the “inlet” or a portion of it from Little Sandy Pond, hereinafter referred to as the Little pond. No part of the Little pond, which is to the south of the Great pond, is shown on the plan.

Between the two ponds are the cranberry bogs that are owned by the defendants. A portion of the bogs was acquired in 1886 by a deed that was made to correct an error in the execution of a former deed to the same premises dated October 29, 1885. Since that time the defendants have acquired other land, so that the bogs now consist of about twenty-seven and one half acres. Water to flood the bogs comes from the Little pond through a sluiceway and flows into a series of ditches. The northerly end (evidently of a sluiceway) empties into the Great pond, where there is a dam and screens to keep débris from entering. When the land was originally purchased, there was a natural stream that flowed from the Little pond into the Great pond at times during flood conditions or high water. This stream has since been dammed by the defendants at a point several hundred feet from the Little pond at the head of one of the bogs, and at some distance easterly from the stream a new sluiceway has been made through which the water is taken to the bogs. Between this dam and the Little pond there is a swamp. At certain seasons of the year, principally in [717]*717the winter and during periods of heavy frost, it is necessary to flood the bogs for the protection of the crop, and on these occasions the flashboards are removed from the dam. The water is held on the bogs in the winter until such time in the spring as it is advisable to drain them, when the flash-boards are removed from the dam at the northerly end of the bogs. On one or two occasions the bogs have been flooded for a day or two in the month of July. They do not drain to such an extent that the ditches are left entirely dry, and other water finds its way into them from underground sources through springs and from higher levels. In its natural course, water from the Little pond finds its way into the Great pond,. and if the bogs were not there, the Little pond would overflow through this natural stream during flood conditions or high water'into the Great pond. While the water is being drained from the bogs, cranberries, leaves and vines accumulate in the ditches, but are mostly prevented from entering the Great pond by the screens that have been erected. Employees of the water department and of the defendants clean these screens. The bogs are operated in a clean and sanitary manner.

There are about one hundred houses along the shores of the Great pond, many of which are occupied throughout the year. Some of the privies, cesspools and sinks drain into the pond through the gravel. The land of the Pembroke poor farm is drained by a deep ditch that runs to the edge of the pond. The privies, overflowing cesspools, the drain from the poor farm, the trees and bushes along the shore, and the numerous houses are probable sources of pollution. The conditions around this pond are described as “very bad,” and the analyses of all experts have shown a pollution. Statute 1903, c. 200, authorized the plaintiffs, with the consent and approval of the State board of health, to take, by purchase or otherwise, lands, rights of way and easements in the vicinity of the Great pond that were reasonably necessary for preserving the purity of the water supply, but no action has been taken under this statute to purchase and control the land and buildings on the Great pond.

[718]*718The stream between the two ponds is a tributary of the Great pond at such times as the water in the Little pond is high enough to overflow into it. But this overflow seldom happens except during high water and flood conditions. There are many cottages and an amusement park on the shores of the Little pond, and, in times of high water, some parts of the cottages are in the water. All of these cottages have cesspools or privies, some of which are located near the pond, drain into it through the ground, and are a dangerous source of pollution. Bathing, boating and fishing have been allowed on the Little pond, except for short periods, since 1932, while the pond was overflowing. The plaintiffs have been advised by the department of public health to put a stop to boating and bathing, but nothing has been done about it except to stop bathing for a short period in 1938 while the pond was overflowing. No attempt has ever been made to remove the cesspool and privy conditions on this pond, the water of which is polluted and unsafe for domestic use.

There is a pollution of the waters of the Great pond “due to excessive marine growth, odor, color and the presence of bacterial growth known as B. coll.” There is also pollution from B. coll in the Little pond. The master was unable to find that there was pollution from B. coll from the water in the bogs flowing into the Great pond, except that which came from the Little pond. The water from the bogs, as it enters the Great pond, is unsuitable for drinking purposes because of color, taste and odor. The taste and odor are due to microscopic organisms that abound in the Great pond as well as in the bogs, and the amount coming from the bogs is inconsequential. The master also found that the evidence did not warrant the finding that the continued discharge of water containing these organisms into the Great pond would, in any way, deteriorate the quality of the water. The discoloration of the water in the bogs due to the contact with leaves and twigs has no harmful effect on the water of the Great pond, and the evidence submitted did not warrant a finding, as the master stated, that the waters of the Great pond are impaired thereby. He was unable [719]*719to find whether the B. coll from the bogs originated there or in the Little pond. The color of the water, as it flows into the Great pond, disappears as it advances into the large body of water, and at the pumping station at the northerly end of the pond it is not objectionable and is well within the standard set for color of water for domestic use. The Great pond contains about one hundred thirteen acres.

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Bluebook (online)
43 N.E.2d 129, 311 Mass. 715, 1942 Mass. LEXIS 788, Counsel Stack Legal Research, https://law.counselstack.com/opinion/town-of-abington-v-cutter-mass-1942.