Unable to leave well enough alone, the Supreme Judicial Court used a series of wooden puns in deciding not to change the longstanding rule that a landowner cannot hold a neighbor responsible for damage caused by that neighbor’s healthy tree.  Shiel v. Rowell addressed Shiel’s nuisance and trespass claims that algae on her roof was caused by the Rowells’ overhanging tree.

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Seawall.JPGMassachusetts has an old, well-developed body of case law on “riparian” rights — the rights of landowners in surface water and groundwater.  Given the long Massachusetts coastline, it therefore comes as a bit of a surprise that the Commonwealth’s law of “littoral” rights — the rights of owners of land abutting the seashore — is much less developed.  In a recent decision, Judge Gary A. Nickerson, sitting in Barnstable Superior Court, has made an important contribution to the law of littoral rights.

Woods v. Brimm (pdf) involves a dispute over a series of revetments, or stone sea walls, that residents of Lieutenant’s Island in Wellfleet Harbor installed to control erosion of their beaches.  The coast of Lieutenant’s Island is subject to waves, currents and tides that erode some beaches and deposit sand on other beaches.  The Woodses’ beach was historically one that benefited from the deposit of sand, or accretion.  Between 1980 and 2000, several of the Woodses’ neighbors along the shore built revetments in an effort to arrest the erosion of their beaches.  The Woodses claimed that their neighbors’ revetments just shifted the erosion to the Woodses’ beach.  The Woodses brought this action against their neighbors claiming nuisance, negligence, and trespass.

Judge Nickerson decided that the law of riparian rights provides an appropriate framework for analyzing the parties’ littoral rights.  On the Woodses’ nuisance claim, the judge found that the “reasonable use” rule usually applied in nuisance actions doesn’t apply.  Rather, nuisance here depends on whether the defendants acted reasonably in constructing and maintaining their revetments — that is, whether the revetments harmed the Woodses’ property by blocking or changing the natural flow of sand and water. 


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