Full-text Opinions
SILVA
v.
MELVILLE
COMMONWEALTH OF MASSACHUSETTS
PLYMOUTH, ss. SUPERIOR COURT
CIVIL ACTION
NO. 98-0318A
CORNELIA SILVA,
Plaintiff
vs.
DONALD K. MELVILLE,
Defendant
MEMORANDUM OF LAW AS TO
MONEY DAMAGES AND INJUNCTIVE RELIEF
This case poses at least two fundamental
property law issues: (1) What is the proper measure of damages
for a trespass onto property? and (2) How should the law resolve
the conflict that arises when adjoining landowners pursue
incompatible uses of their own property?
Background
The defendant, Donald Melville
("Melville"), is a cranberry farmer who owns roughly
thirty acres of land in Carver, on which he operates a number of
cranberry bogs. The plaintiff, Cornelia Silva Romboli
("Silva"), owns roughly four acres of land, which she
uses solely as her residence, that partially abut Melville’s
land. In 1992, after buying a new parcel of land that abutted the
rear portion of Silva’s property, Melville built a cranberry
bog on what he believed to be his own property. In fact, the bog
extended onto roughly 1/10th of an acre of Silva’s property,
on the portion of her property furthest from her house. From 1992
until at least 1997, when Silva first notified Melville that he
was encroaching on her property, Melville farmed this cranberry
bog, including the 1/10 acre belonging to Silva. After he learned
of the encroachment, Melville retreated onto his own property and
built a dirt dike road separating Silva’s land from his own.
However, Melville continues to farm the part of the cranberry bog
that rests on his own property, which means that, twice each
year, in the fall and again in the winter, he floods the bog with
water.[1] As a result of this flooding, water seeps below the
ground on Melville’s property and percolates onto the rear
of Silva’s adjoining property, raising the water level.
Silva filed her trespass complaint against
Melville on March 11, 1998, alleging a continuing common law
trespass, both from physical entry and the entry of water,
beginning in 1992. Silva also alleged a statutory trespass claim
under G.L. c. 242, § 7 for Melville’s alleged cutting down
and removal of trees and underwood on her property in 1992 during
the construction of his cranberry bog. Silva seeks both money
damages and injunctive relief.
On February 13, 2001, after seven days of
trial, the jury found that Melville had indeed destroyed woodland
on her property in 1992 during the construction of his bog, but
concluded that Silva knew or reasonably should have known that he
had done so before March 11, 1995, so that her statutory trespass
claim was precluded by the three-year statute of limitations. The
jury, however, also found that Melville had physically trespassed
onto Silva’s property after March 11, 1995, so her common
law claim as to these trespasses came within the statute of
limitations.[2] The jury was told that, if they found that Silva knew
or reasonably should have known of Melville’s trespass
before March 11, 1995, Silva was entitled to damages only for
trespasses that occurred after that date. See Harrison v. Textron,
367 Mass. 540, 552 (1975); Murphy v. Town of Chatham,
41 Mass. App. Ct. 821, 827 (1996). The jury also found that water
from Melville’s property had entered onto Silva’s
property after March 11, 1995, but that this entry of water did not
result from the unreasonable use of Melville’s land. The
jury was told that an unlawful trespass by water existed only if
the entry of water from Melville’s land onto Silva’s
land was caused by an unreasonable use of Melville’s land
or, phrased differently, that Melville’s negligent use of
his land caused the flow of water onto Silva’s land.
Therefore, in view of the jury’s finding on this issue, the
jury found no negligent trespass of water.
As a result of the jury’s findings as to
liability, the jury was permitted to award damages only for
Melville’s continuing physical trespass onto Silva’s
property that occurred after March 11, 1995. Pragmatically, this
meant that the jury needed to evaluate the damages caused to
Silva as a result of Melville’s continued farming of her
1/10 of an acre of cranberry bog after March 11, 1995 until he
built the dirt dike road on that bog separating his property from
hers.
In view of the uncertainty in the law regarding
the appropriate measure of damages in trespass cases, this Court
asked the jury to make findings on three separate theories of
damages: (1) the reduction in the fair market value of
Silva’s property caused by Melville’s continuing
trespass after March 11, 1995; (2) the loss in Silva’s
enjoyment of her property caused by Melville’s continuing
trespass after this date; and (3) the cost of reasonably
restoring Silva’s property to the condition it was in prior
to March 11, 1995. The jury found that the reduction in fair
market value was $1,400, valued the loss of Silva’s
enjoyment in the use of her property at $25,000, and found that
the cost of restoration was $50,000. The jury, at the request of
the Court, also advised the Court that the cost of restoration
was the measure of damages it thought the fairest and most
appropriate.[3]
This Court now must determine which of these
three measures of damages is indeed the proper measure of damages
for the common law trespass committed in this case. It must also
determine what, if any, of the injunctive relief sought by the
plaintiff should be ordered. In addressing the issue of
injunctive relief, this Court must also address plaintiff’s
contention that she is entitled to injunctive relief to prevent
the entry of water onto her property caused by the flooding of
defendant’s adjoining cranberry bog.
Discussion
1. The Appropriate Measure of
Damages
As a remedy for trespass, Massachusetts courts
in different cases, under differing circumstances, have awarded
damages under each of the three alternative theories: reduction
in fair market value, loss in enjoyment of use, and cost of
restoration.
Where the injury caused by the trespass has
been permanent, in most cases the measure of damages has been the
difference in the fair market value of the property before and
after the trespass. See, e.g., Trinity Church in the City of
Boston v. John Hancock Mutual Life Ins. Co., 399 Mass.
43, 48 (1987)("The general rule for measuring property
damage is diminution in market value."); Belkus v. City
of Brockton, 282 Mass. 285, 287-288 (1933)("If the
injury is permanent, unchanged by a cessation of the injurious
action, the damage is the difference in the fair market value of
the injured premises before and after the injury."). Where
the injury caused by the trespass is continuous but not
permanent, and the property after the trespass is in essentially
the same condition as it was before, the measure of damages has
been the loss in the rental income of the property. Belkus
v. City of Brockton, 282 Mass. at 288. Implicit in these
cases is that the value of the encroached property to its owner
is purely economic, so that payment of the difference in fair
market value and/or the loss in rental income is sufficient to
make the injured landowner whole.
However, the law recognizes that
"‘market value’ does not in all cases afford a
correct measure of indemnity, and is not therefore ‘a
universal test.’" Trinity Church in the City of
Boston v. John Hancock Mutual Life Ins. Co., 399 Mass.
at 48, quoting Wall v. Platt, 169 Mass. 398,
405-406 (1897). This is most often the case with "special
purpose property," such as the property of non-profit,
charitable, or religious organizations, where "there will
not generally be an active market from which the diminution in
market value may be determined." Trinity Church in the
City of Boston v. John Hancock Mutual Life Ins. Co.,
399 Mass. at 48-49. Thus, for instance, when it was determined
that the construction of the John Hancock Building in Copley
Square in Boston had undermined the foundation of the Trinity
Church, the Supreme Judicial Court did not measure the
Church’s damages by the loss in the fair market value of the
Church. Rather, the Court measured the damages as "the
reasonable costs of restoring the church to the condition it was
in prior to the Hancock excavation." Id. at 50.[4]
The Supreme Judicial Court in Trinity Church
recognized that, even when the reduction in fair market value
could be determined, the cost of restoration may still be the
appropriate measure of damages in some situations "where
diminution in market value is … unsatisfactory as a measure of
damages." Id. at 49. The Court cited three cases in
support of this proposition where the cost of restoration, not
the reduction in fair market value, was found the more
appropriate measure of damages:
(1) Heninger v. Dunn, 101 Cal.
App.3d 858, 864-865 (1980), where an irresponsible neighbor
bulldozed a rough road, seven-tenths of a mile long, on the
plaintiff’s property, killing or damaging 225 trees and
substantial vegetative undergrowth but improving access to the
plaintiff’s property and thereby increasing the fair
market value of the plaintiff’s property;
(2) Puerto Rico v. SS Zoe Colocotroni,
628 F.2d 652, 675-678 (1st Cir. 1980), cert. denied,
450 U.S. 912 (1981), where an oil spill had contaminated a
coastal area; and
(3) Maloof v. United States, 242
F. Supp. 175, 183 (D.Md. 1965), where the defendant’s
negligence extensively damaged woods, the driveway area, and
areas around the lawn and buildings of a 55-acre estate where
John Hanson, the First President of the United States under the
Articles of Confederation, was buried and which the owner had
purchased both to house his considerable art collection and to
establish as a shrine for the nearly-forgotten Hanson.
In each of these cases, the property had a
value to the owner that went far beyond its fair market value. In
Heninger, for instance, the owner of the property took
little solace in the fact that the road had increased the fair
market value of his property because the primary value of the
property to him lay in its remote beauty, not its economic value.
See 101 Cal. App. 3d at 864-865. In such a case, the only way to
make the injured property owner whole is to restore the property
to the condition it was in before the trespass.
"Where expenditures to restore or to
replace to predamage condition are used as the measure of
damages, a test of reasonableness is imposed." Trinity
Church in the City of Boston v. John Hancock Mutual Life
Ins. Co., 399 Mass. at 50. "In some cases, ‘to make
such a restoration would be an uneconomical and improper way of
using the property’ and ‘might involve a very large and
disproportionate expense to relieve from the consequences of a
slight injury.’" Id. quoting Hopkins v. American
Pneumatic Serv. Co., 194 Mass. 582, 584 (1907).[5]
It is not clear from the case law how to
measure the reasonableness of restoration expenses. Certainly,
any determination of reasonableness must consider the overall
cost of the restoration, the amount of damage inflicted on the
property, and whether restoration is realistically possible. See Trinity
Church in the City of Boston v. John Hancock Mutual Life
Ins. Co., 399 Mass. at 50; Puerto Rico v. SS Zoe
Colocotroni, 628 F.2d at 675 ("There may be
circumstances where direct restoration of the affected area is
either physically impossible or so disproportionately expensive
that it would not be reasonable to undertake such a
remedy."). Pragmatically, a determination of reasonableness
must also consider the magnitude of the plaintiff’s loss in
her enjoyment of use of the property. If that loss is small and
the cost of restoration is great, then it makes little economic
sense to oblige the defendant to pay vast sums of money to
restore the property to its previous condition, since the
plaintiff did not care that much about the property. In fact, in
such circumstances, if the plaintiff were awarded the cost of
restoration, she would certainly keep the money and not invest it
in restoration, since she would derive far more pleasure from the
use of the money than the restored use of the property.
The owner’s loss of enjoyment in the use
of her property has been recognized as a measure of damages when
(1) the loss of fair rental value is either not calculable or
appropriate, or (2) when there is evidence of emotional distress
that is not reflected in the loss of fair rental value. See Harrison
v. Textron, 367 Mass. at 555-556 & n. 13 (loss of
enjoyment from noise, lights, dust, intrusions into one’s
privacy, and other inconveniences and annoyances are not
compensable because they are reflected in loss of fair rental
value of residential property); Schleissner v. Town of
Provincetown, 27 Mass. App. Ct. 392, 396 n. 4 (1989)
(plaintiff’s emotional distress separately compensable where
she had suffered "considerable anxiety and distress over the
repeated flooding and threat of flooding").
In the case at bar, Silva testified that the
1/10th of an acre in the rear of her property on which Melville
trespassed was special to her because it was a place of unusual
beauty, of quiet solitude, and of fond memories. By its verdict,
the jury appears, at least in part, to credit her testimony that
she cared about that portion of her property for reasons beyond
its fair market value. Therefore, this Court does not believe
that Silva would be fairly compensated for Melville’s
trespass simply by paying her the reduction in fair market value
caused by his continued trespass. This may compensate her for her
economic loss but not for her far greater loss in the enjoyment
of this portion of the property.
While recognizing that this 1/10th of an acre
meant more to Silva than its fair market value, this Court does
not believe that it would be reasonable to award her the cost of
restoration. When, as here, the trespass has ended and the cost
of restoration of the property is twice the value of the
plaintiff’s loss of enjoyment in the property, it would be
unreasonable to award the cost of restoration because such an
award would produce an undeserved windfall to Silva. If the
$50,000 award for cost of restoration were paid to her, Silva
would receive the money judgment regardless of how she ultimately
spent it; the law does not condition payment upon proof that the
money is actually used for restoration. When, as here, her loss
of enjoyment in the use of the property is valued at only
$25,000, one would expect that, if she were awarded the $50,000
cost of restoration, she would not in fact use this money for
restoration. Why would one invest $50,000 to obtain $25,000 worth
of enjoyment and only a nominal increase in fair market value? In
short, it is unreasonable to award the cost of restoration when
it so far exceeds the value of loss in enjoyment of use that, if
the plaintiff were to receive the cost of restoration, she would
likely not devote it to that purpose.
This analysis, although not articulated in the
case law, is consistent with the outcomes in the case law. For
instance, there can be little doubt, in view of Trinity
Church’s architectural, historic, and sentimental
significance to its congregation, that the congregation would
devote a money judgment paid under a cost of restoration theory
to rebuilding the Church on a new foundation rather than to any
other purpose, because the loss of enjoyment of its use by the
congregation is far greater than even the extraordinary cost of
restoration. In contrast, when the fair market value of the
portion of the property that suffered the trespass was only $30,
and that portion of property was of no practical use or
sentimental value to the plaintiff owner of the property, it was
held unreasonable to award $1,700 for the cost of restoration,
because no person in her right mind would spend $1,700 to reclaim
property with no sentimental value and only $30 of economic
value. See Blood v. Cohen, 330 Mass. 385 (1953).
This Court’s preference for the loss of
enjoyment of use theory of damages in this case is strengthened
by the practical difficulties in actually restoring the property
to its pre-trespass condition. While Silva presented expert
testimony regarding the costs of replanting and nurturing trees
and vegetation on this 1/10th of an acre, her expert admitted
that it would be futile to plant if the area continued to flood
twice each year. As discussed below, since the jury found that
Melville was making reasonable use of his property, he will be
permitted to operate the cranberry bog on his property and to
flood his bog in the fall and winter. This will inevitably raise
the water level of Silva’s 1/10th acre and make
reforestation either unlikely or impossible. Therefore, not only
would Silva be unlikely to invest the $50,000 cost of restoration
in actual restoration because this amount exceeds the value of
her enjoyment of the property, she would also be foolish to do so
since she would, almost literally, be pouring this money down the
drain.
Silva criticizes this measure of damages as
being speculative. It is true that it is difficult to place a
dollar value on the loss in one’s enjoyment of her property,
but it is no more difficult than placing a dollar value on the
loss in one’s use of an arm or a leg, which juries do every
day when they award damages for pain and suffering in negligence
cases. In the case at bar, the jury needed to value the
plaintiff’s loss in having a special place to walk, to be
quiet, and to nurture memories. In a traditional tort case, when
a plaintiff’s leg is injured by a defendant’s
negligence, a jury is routinely asked to value the
plaintiff’s loss in no longer being able to dance, or to
take morning walks, or to walk quickly to the bathroom. This
Court recognizes that both of these damage findings are
difficult, but it does not find the former any more difficult or
"speculative" than the latter. The law recognizes that
certain elements of damages are not capable of being determined
with mathematical certainty, and allows them to be estimated in
accordance with the sound judgment and conscience of the jury.
Therefore, for the reasons stated above, this
Court concludes that the fairest and most appropriate measure of
damages in this case is the loss in the plaintiff’s
enjoyment of her use of her property resulting from the
defendant’s trespass, which the jury found to be $25,000.
2. Injunctive Relief
Melville concedes that Silva is entitled to a
permanent injunction barring him from physically entering onto
her property without her consent. Silva, however, seeks a
permanent injunction that would bar Melville from permitting
water from his property to enter onto Silva’s property. As
demonstrated below, Silva is not entitled to this additional
relief.
"In Massachusetts, liability for a private
nuisance caused by the flow of surface waters from a landowner’s
property to that of an adjoining landowner depends on whether the
landowner is making a reasonable use of his land." DeSanctis
v. Lynn Water and Sewer Commission, 423 Mass. 112, 116
(1996). "Under the reasonable use doctrine, ‘each
possessor is legally privileged to make a reasonable use of his
land, even though the flow of surface waters is altered thereby
and causes some harm to others, but incurs liability when his
harmful interference with the flow of surface waters is
unreasonable.’" Id. quoting Armstrong v. Francis
Corp., 20 N.J. 320, 327, 120 A.2d 4 (1956).
"Reasonableness is a question of fact for the jurors whose
decision is based on consideration of all the relevant
circumstances including the amount of harm caused, the
foreseeability of the harm which results, the purpose or motive
with which the possessor acted, and all other relevant
matter." DeSanctis v. Lynn Water and Sewer
Commission, 423 Mass. at 116.
The characterization of a cause of action as a
negligent trespass rather than a private nuisance does not
obviate the plaintiff’s need to prove the unreasonableness
of the defendant’s use of adjoining land. "A plaintiff
may recover under the theory of negligent trespass if the jurors
determine that the defendant was negligent and that the
defendant’s negligent entry onto the plaintiff’s land caused the
plaintiff harm." Id. at 118. Since negligence is
defined as the failure to exercise that degree of care which a
reasonable person would have exercised under the same
circumstances to prevent foreseeable risks of harm to others, a
landowner would be found negligent only if he made an
unreasonable use of his land that caused water to enter onto the
property of another.
While DeSanctis focused on the flow of
surface water onto the property of another, there is no reason to
believe that the standard should differ for the percolation of
water underground onto the property of another, as is present in
the case at bar. Silva’s property is equally wet regardless
of whether the water from the flooded bog flows over
Melville’s property onto hers or percolates underground onto
hers.
The jury found that the entry of water onto
Silva’s property did not result from the unreasonable use of
Melville’s land. In making this finding, the jury recognized
that Melville could farm his cranberry bog successfully only if
he flooded it twice each year, that his flooding of his property
would inevitably raise the water level on her adjoining 1/10th of
an acre, and that there was nothing that Melville reasonably
could do to stop this from happening except to stop farming his
bog. The jury concluded that it was more reasonable for Melville
to continue to farm his bog and for Silva to put up with the
increased water level, than for Melville to abandon his bog so
that Silva’s adjoining 1/10th of an acre would have a lower
water level. This Court concurs with that finding. In view of
this factual finding, it would not be equitable to order Melville
to cease and desist from allowing water to percolate from his
land onto Silva’s, because to do so would require Melville
to stop flooding his adjoining cranberry bog, which effectively
would require Melville to stop farming that bog.
Order
For the reasons stated above, it is hereby ORDERED
that:
1. Judgment enter on behalf of the plaintiff
Silva in the amount of $25,000 for the loss in Silva’s
enjoyment of her property caused by the defendant Melville’s
continuing trespass after March 11, 1995, plus statutory
interest;
2. A permanent injunction enter against the
defendant Melville barring him from physically entering onto
Silva’s property without her consent.
3. The costs of this action shall be borne by
the defendant.
_____________________________
Ralph D. Gants
Justice of the Superior Court
DATED: March 12, 2001
FOOTNOTES:
[1] A cranberry farmer floods his bog
in the fall to harvest the cranberries, which float and can then
more easily be gathered. He floods his bog in the winter to
protect the cranberry vines from the New England cold.
[2] Silva did not allege that
Melville cut or carried away any trees on her property after
1992. She contended that the statute of limitations had not run
as to this claim solely because, under the discovery rule, the
limitations clock did not begin until she knew or reasonably
should have known that Melville had committed a trespass.
[3] The Court informed the attorneys
prior to the commencement of trial that it would be bound by the
jury’s findings of fact as to damages but would treat the
jury’s opinion as to the fairest and most appropriate
measure of damages as advisory only.
[4] In Trinity Church, since
this damage could not be incrementally repaired, the Court
measured the extent to which the Hancock excavation had increased
the Church’s "angle of distortion" which, when it
reached a certain angle, would require the Church to be
disassembled and reconstructed. 399 Mass. at 48. The Court then
calculated the cost of restoration as the percentage
deterioration in the "angle of distortion" multiplied
by the total cost of disassembling and reconstructing the Church.
399 Mass. at 50.
[5] Silva contends that this
requirement of reasonableness should not apply because
Melville’s construction of a bog on her property is
functionally equivalent to the construction of a building, wall,
or fence on her property, and the law generally requires the
defendant to remove such structures even at substantial cost.
See, e.g., Capodilupo v. Vozzella, 46 Mass. App.
Ct. 224, 226 (1999)( "In Massachusetts a landowner is
ordinarily entitled to mandatory equitable relief to compel
removal of a structure significantly encroaching on his land,
even though the encroachment was unintentional or negligent and
the cost of removal is substantial in comparison to any injury
suffered by the owner of the lot upon which the encroachment has
taken place."), quoting Peters v. Archambault,
361 Mass. 91, 92 (1972). However, Silva’s contention cannot
prevail for three reasons. First, Melville’s actual
construction of the cranberry bog on Silva’s property was
completed in 1992 and the trespass was known (or reasonably
should have been known) to Silva before March 11, 1995, so she is
not entitled to damages resulting from the bog construction; her
damages are limited to Melville’s physical trespass onto the
property to farm the bog after March 11, 1995, which involved no
construction. Second, the case law compelling mandatory removal
of a structure has been limited to physical structures, such as
buildings, walls, and fences, and has never been extended to the
alteration of property that did not involve the construction of a
structure on the plaintiff’s property. Third, even when
encroaching structures have been constructed, the law has not
always required the removal of such structures. Remedies other
than removal have been ordered "where the unlawful
encroachment has been made innocently, and the cost of removal by
the defendant would be greatly disproportionate to the injury to
the plaintiff from its continuation, or where the substantial
rights of the owner may be protected without recourse to an
injunction, or where an injunction would be oppressive and
inequitable." Capodilupo v. Vozzella, 46 Mass.
App. Ct. at 226, quoting Goulding v. Cook, 422
Mass. 276, 277 n. 3 (1996), which quotes from Peters v. Archambault,
361 Mass. at 93. In short, removal of these structures has not
been required when removal would be unreasonable.
