Massachusetts Real Estate Lawyer Blog
A drainage easement allows for part of an owner’s property to be used for runoff and stormwater drainage purposes. They are typically written in the deed to the property, but a party may argue that it has acquired drainage rights by prescription, as in a September 14, 2018 Massachusetts real estate case. The action was filed in Land Court by a developer seeking to establish its alleged drainage rights in the property of the homeowners.
The developer had purchased a former industrial site and sought approval to redevelop the land. The homeowners lived downhill from the site on abutting property. Stormwater was collected in a catch basin on the developer’s site and funneled into an underground pipe, which traveled beneath the homeowners’ property and eventually dumped the water into a ditch on their property.
The homeowners appeared at a public hearing on the developer’s plans, and questioned whether the developer had the right to drain stormwater onto their property. The developer brought suit against the homeowners, initially asserting that it was entitled to drainage rights pursuant to the deed. After further investigation, the developer conceded that it did not have deeded rights, and instead argued that it had acquired drainage rights by prescription.
Under Massachusetts law, the developer may acquire the right of a drainage easement by prescription by establishing that it collected and discharged surface water continuously, openly and adversely for more than twenty years. The developer also must prove the amount and character of the drainage from its property, and that its prescriptive rights encompass such drainage.
The Land Court concluded that there was clear evidence the underground pipe had been used to discharge stormwater onto the homeowners’ property openly and adversely for a continuous period of more than twenty years. The court noted, however, that the developer introduced very little evidence of the amount and character of its drainage.
The court considered the testimony of a witness for the developer, who stated that the site had been previously used as a chemical plant in the 1970s. The court also viewed the site, and found that the buildings and paved parking lot remaining on the site were consistent with the witness’s testimony. The court reasoned that the primary features that determined how much stormwater emptied into the homeowners’ property (i.e., the parking lot and other impervious surfaces on the site) had not changed for at least 25 years, and thus the amount and character of the drainage remained unchanged. As such, the court ruled that the easement by prescription encompassed the present-day drainage.
At Pulgini & Norton, our experienced real estate attorneys have assisted many Massachusetts residents with legal matters concerning their property. We can protect your interests as well as negotiate favorable terms in residential real estate transactions, property disputes, and more. Request your free consultation through our website or by calling our office at (781) 990-2200.
More Blog Posts:
Massachusetts Landowner Files Action Alleging Neighbor Has Overburdened Easement, Massachusetts Real Estate Lawyer Blog, published July 17, 2018
Massachusetts Landowners Successfully Challenge Permit Issued for Housing Development Next to Their Property, Massachusetts Real Estate Lawyer Blog, published September 19, 2016