Old Common Law Applied to Current Problem

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In a case decided earlier this year, the Appeals Court held that common law precedent some might deem “archaic” lives on in its applicability to structures built prior to 1978 that could, under today’s standards, create an actionable water nuisance.

In Graziano v. Riley, 83 Mass. App. 280 (2013), the Appeals Court considered a nuisance claim arising from a stone and earthen berm constructed in approximately 1966, which blocked the path of a drainage easement and caused ponding of surface water on the plaintiff’s land. Because the berm had been in existence for far more than twenty years, it had the effect of extinguishing the easement. Accordingly, the plaintiff and the Court turned to a nuisance theory.

Instead of applying the currently applicable law of nuisance in cases involving riparian rights, however, the Appeals Court applied the law of the Commonwealth as it existed before 1978.

Prior to the concurring opinion by a majority of the Supreme Judicial Court set forth in Tucker v. Badoian, 376 Mass. 907 (1978), a landowner could “freely defend his land from encroaching surface water [and] also [could] with impunity grade and improve his land for a lawful purpose even though he thereby diverts surface water onto his neighbor’s land.” See Tucker, 376 Mass. at 912. This approach was known as the “common enemy” doctrine.

The majority of the Court agreed with the outcome in Tucker based on then-applicable doctrine, but also announced a prospective change in the common law adopting a more flexible “reasonable use” standard. The “reasonable use” standard takes into account all of the circumstances presented in a water-related nuisance case, including the amount and foreseeability of harm caused by the alleged interference with the flow of surface water, and the motives of the defendant. See id. at 918 and n.2 (Kaplan, J. concurring). The new “reasonableness” standard was, however, explicitly made applicable only to “conduct occurring hereafter, excepting future conduct so related in a continuum with past conduct that it would be unjust to apply the new standard to it.” Tucker, 376 Mass. at 919.

In applying the pre-Tucker “common enemy” doctrine to the case at bar, the Appeals Court noted in Graziano that “[i]ndeed, there are doubtless many artificial structures, berms, or other modifications to natural grades throughout the Commonwealth that were put into place before 1978 that would be vulnerable to orders for removal, were they viewed as a continuing nuisance under the more recent reasonable use standard.” Accordingly, it would appear that the “common enemy” doctrine lives on, and may well have continued applicability for so long as pre-1978 berms and similar alterations to natural grades remain tacit.

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