CANAVAN & MANNING, INC. vs. HAROLD FREEDMAN & another, trustees.

CANAVAN & MANNING, INC. vs. HAROLD FREEDMAN & another, trustees.

353 Mass. 762

January 3, 1968

The defendants maintained on their land for several years an embankment in such a position as to bar the natural flow of the surface water. In time of heavy rains the water collected at the embankment and backed up for some distance. On March 12, 1962, it flooded the ground floor of a building that the plaintiff occupied as lessee of the defendants and caused the damage for which this action was brought. There was no error in directing a verdict for the defendants. Nothing in the lease or in the relationship gave a basis for recovery. Regarded as the owner of a separate interest in real estate, the plaintiff also had no rights. It is well established that a landowner, by appropriation of his land to any lawful use or mode of enjoyment, may interfere with the natural flow of surface water even though this results in the flow or gathering of this water on or in adjoining land. Maddock v. Springfield, 281 Mass. 103 , 104-105, and cases cited. Deyo v. Athol Housing Authy. 335 Mass. 459 , 462-463, and cases cited. In Mahoney v. Barrows, 240 Mass. 378 , where the plaintiff recovered for damage from the overflow onto his land of water collected behind a dam, the amount of water impounded was augmented by artificial channelling. There is no showing of any artificial channelling or augmentation of the natural flow of water in this case. The circumstances that the embankment was a temporary accumulation of gravel and debris from the rear of the defendants' lot, that this use of the land served no purpose other than storing the gravel and debris, that the defendants intended to remove the embankment and told the plaintiff after the lease term had begun and after a prior flooding that they would do so, and that they finally did so, do not impose liability. We need not consider whether the rule would be different if the blocking of surface water made adjoining premises indefinitely unusable.

Exceptions overruled.