Recently, our office won another significant jury trial in Worcester Superior Court that demonstrates our experience and expertise in local land use and construction disputes. Our office represented the Plaintiff homeowners, whose back yard was consistently flooded after an abutting property owner blocked an opening under his barn, through which surface water historically drained. The defendant abutter’s actions caused water to back up onto the Plaintiffs’ land. The defendant also raised the elevation of his yard along the parties’ property line effectively creating an artificial dam.
The Defendant’s defense for trespass and nuisance was that his objective, in blocking the opening and stopping the flow of surface water under his barn, was reasonable and necessary to prevent water from causing damage to home’s basement. The defendant asserted the reasonable use doctrine, which allows a property owner to use their property in a reasonable manner even if such use causes flooding to one’s neighbor. The evidence at trial, however, established that the defendant made, little if, no effort to come up with an alternative solution, knowing his actions would in turn cause substantial flooding to plaintiff’s land. It should also be noted; defendant’s action had little impact on actually reducing the amount of water coming into his basement and barn.
The jury while acknowledging, the protection of one’s property was certainly reasonable, found defendant’s method was unreasonable under the circumstances. The Jury awarded plaintiffs’ the diminished value of their property due to the flooding. Plaintiffs’ were also entitled to 12% statutory interest from the date of filing the complaint, or approximately 36% of the judgment. Perhaps most importantly, due to a careful analysis of the claims and questions presented to the jury for decision, all potential appellate issues were disposed of prior to, or during trial, allowing for a “speedy draft” to be tendered to the client within days of the verdict. In the end, preparation by this office and its experience in land use and construction paid off.
One final aspect of this case that should be of interest to past, present and future clients, is how the defendant’s homeowners’ policy came into play in such a case. The defendant was found liable for creating a nuisance that damaged plaintiffs’ property, The defendant was not found liable for intentional trespass, as a result of water backing up and flooding plaintiffs’ land. Given the defendant’s conduct was found not to be intentional; the defendant’s carrier had no basis to deny coverage under defendants homeowners liability provision. The insurance carrier paid the full judgment plus interest (leading to the “speedy draft” previously mentioned).
If you or your business requires assistance with a land use or residential construction project, please contact us at 508-381-0499.