## Facts

- Middlesex Co. owned a mill-pond at the bottom of a hillside.
- McCue owned land upslope from the pond.
- McCue cultivated and manured his soil in the ordinary way to grow garden vegetables.
- This ordinary farming activity loosened soil, and surface runoff carried soil and other solid material into Middlesex Co.’s pond, gradually tending to fill it.
- Middlesex Co. sought to restrain McCue from “filling up” the pond by enjoining the conduct.

## Issues

1. Whether an upper landowner may be enjoined for sediment carried by natural surface drainage into a lower owner’s pond when the upper owner’s conduct is ordinary cultivation and manuring.
2. Whether foreseeable (or intended) harm from a neighbor’s land use is sufficient, by itself, to create liability absent a statute.
3. Whether the character and degree of harm from common land use can be treated as non-actionable as a matter of law rather than submitted as a close factual question.

## Decision

- The Supreme Judicial Court of Massachusetts held for McCue and dismissed the bill in equity.
- Ordinary cultivation and manuring, though foreseeably increasing soil carried by surface water into the pond, did not justify injunctive relief.
- The court treated the matter as a clear case where the court could determine the parties’ rights without a jury.

## Legal Principles

- Adjoining landowners’ rights are not governed by a rigid rule that any foreseeable harm from one owner’s lawful act is actionable.
- Foreseeability or intent to cause harm is not decisive (absent statute); neighbors must tolerate some harms incident to ordinary land use.
- Liability depends on the nature of the defendant’s act and the kind and degree of harm, evaluated in light of common usage and practical expediency.
- Ordinary and socially customary uses of land (including typical cultivation and manuring) are generally privileged even if they cause incidental surface drainage effects.
- Where the complained-of interference would effectively bar ordinary land use (e.g., requiring guards or forbidding digging to prevent any sediment transport), courts may reject liability to preserve reasonable reciprocal use between neighbors.

## Conclusion

The court refused to enjoin an upper landowner whose ordinary gardening practices caused some sediment to wash into a lower mill-pond, holding that neighboring owners must bear certain incidental harms from reasonable, customary land use and that liability depends on the character and degree of the interference, not merely on foreseeable damage.


Middlesex Co. v. McCue, 21 N.E. 230 (Mass. 1889)