Posts tagged "Graziano"

Graziano, et al. v. Riley, et al. (Lawyers Weekly No. 11-025-13)

NOTICE:  All slip opinions and orders are subject to formal revision and are superseded by the advance sheets and bound volumes of the Official Reports.  If you find a typographical error or other formal error, please notify the Reporter of Decisions, Supreme Judicial Court, John Adams Courthouse, 1 Pemberton Square, Suite 2500, Boston, MA 02108-1750;  (617) 557-1030;       12‑P‑403                                        Appeals Court   ANTHONY W. GRAZIANO & another[1]  vs.  VIRGINIA M. RILEY[2] & another.[3]     No. 12‑P‑403. Norfolk.     October 9, 2012.  ‑  February 14, 2013. Present:  Berry, Green, & Meade, JJ.   Easement.  Drain.  Real Property, Easement, Drain, Nuisance, Riparian rights.  Nuisance.       Civil action commenced in the Superior Court Department on September 12, 2005.   The case was heard by John P. Connor, Jr., J.     Gerald T. Anglin for the defendants. Peter L. Eeley for the plaintiffs.     GREEN, J.  After a jury-waived trial, a Superior Court judge found that the defendants had erected a stone and earthen berm that blocked the path of a deeded drainage easement serving the plaintiffs’ property, but that the berm’s continued existence for more than forty years barred the plaintiffs from relying on the rights granted by the easement.  The judge nonetheless ordered the defendants to remove the berm, based on his conclusion that its presence constitutes a continuing nuisance.  Because the defendants erected the berm before the doctrinal change to Massachusetts common-law riparian rights announced in Tucker v. Badoian, 376 Mass. 907 (1978), however, its erection did not constitute a nuisance under then applicable law; we accordingly reverse the judgment concerning the plaintiff’s nuisance claim. Background.  We summarize the findings of fact entered by the trial judge.  The plaintiffs purchased 42 Deep Run Road in Cohasset on July 13, 2004.  Abutting the plaintiffs’ property to the rear, and down gradient, is property owned by the defendant Virginia M. Riley, as trustee of V.M.R. Nominee Realty Trust (trust).  Riley initially purchased the property with her husband, the defendant John J. Riley, on May 20, 1966; the couple built a home on the property that year and have resided there from that time to the present.  The residence on the plaintiffs’ property was already in existence at the time the defendants purchased their property. Both properties slope downward in an easterly direction toward Jerusalem Road, and then to the Atlantic Ocean.  Accordingly, surface water naturally flows from west to east across both properties, from the plaintiffs’ to the defendants’ property.  A 1953 subdivision plan shows a drainage easement that begins on the westerly side of Deep Run Road, opposite the plaintiffs’ property, and then runs under the road and across the plaintiffs’ property onto the defendants’ […]


Posted by Massachusetts Legal Resources - February 14, 2013 at 6:26 pm

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