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100 Mass. 181

Bates v. Smith

Massachusetts Supreme Judicial Court

Decided October 15, 1868

Massachusetts Supreme Judicial Court · decided 1868-10-15

<p>A landowner may lawfully build on his land without regard to the effect of the structure in excluding surface water which otherwise would flow from lands adjoining; and it is immaterial that the adjoining land is a burial ground.</p> <p>The erection of a structure on land of the builder to exclude surface water which otherwise would flow from an adjoining burial ground is not a violation of the provisions of the Gen. Sts. c, 28, § 12, and <?. 165, § 39, for the protection of places of burial from injury or desecration.</p>

Good law ✅— No negative treatment on recordhow we know

Decided 1868-10-15

How this case has been cited

Cited by 14 later decisions — most recently February 1957

14 state decisions

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Later decisions citing this case, by decade. The current decade is in progress, and our corpus holds fewer opinions from the most recent years, so the latest bars are undercounted — not a real decline.

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Chapman, C. J.

¶1A proprietor of land may erect structures upon it as solid and as high as he pleases, without regard to their effect upon surface water which would otherwise come from the adjoining lands upon his soil. Gannon v. Hargadon, 10 Allen, 107. Franklin v. Fisk, 13 Allen, 211. The fact that the adjoining land is occupied for a burial ground does not abridge his rights in this respect. The erection of a structure which prevents the surface water that gathers upon the burial ground from flowing off over his land is not a violation of Gen. Sts. c. 28, § 12, or c. 165, § 39; for the proprietors of the ground have no easement which he violates or obstructs. If the water constitutes a nuisance, he did not create the nuisance, The motive which influences a man to exercise his right is no material in such a case as this. Judgment for the plaintiff.

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