LYNN S. PRUNHUBER, GAYLE PRUNHUBER, and PATTI PRUNHUBER, as Trustees of the LAUREN F. PRUNHUBER TRUST UNDER WILL v. RICHARD ALLEN, as Representative of the Members of the Unincorporated Association known as PROSPECT HEIGHTS PROPRIETORS

Prospect Heights is a neighborhood along Prospect Lake in Egremont, Massachusetts. Residents of Prospect Heights have purported to organize themselves as proprietors under G.L. c. 4, §§12-14, to maintain and repair their private way or ways (whether they live along a single or multiple ways is one of the issues in this case). Richard Allen (Allen) is the elected surveyor of the Prospect Heights Proprietors, and is defendant here as the representative of that unincorporated association. The plaintiffs Lynn S. Prunhuber, Gayle Prunhuber, and Patti Prunhuber are sisters; they are trustees of a family trust called the Lauren F. Prunhuber Trust Under Will (Prunhuber Trust). The Prunhuber Trust owns a family home on Lakeside Drive in Prospect Heights. In 2014, Allen, on behalf of the Prospect Heights Proprietors, had a culvert installed under Lakeside Drive at the Prunhuber Trust's property. The Prunhuber Trust brought this action because, it claims, the Prospect Heights Proprietors had no authority to install the culvert and the culvert directs water onto the Trust's property in a concentrated flow. After trial, including a view at which I observed the water flow that the Prunhuber Trust is complaining about, I find that, while the Prospect Heights Proprietors did have authority to install the culvert, they did so in a way that both trespasses upon the Trust's property and creates a nuisance.

Procedural History

On June 3, 2016, the Prunhuber Trust filed its Complaint (Complaint or Compl.). On July 29, 2016, the Defendants filed their Answer and Counterclaims. The Prunhuber Trust filed Plaintiffs' Reply to Counterclaims on August 10, 2016. A case management conference was held on September 29, 2016. On November 3, 2016, Defendants filed their Motion to Dismiss and Memorandum of Law and Affidavit in Support of Motion to Dismiss. The Order of Waiver of Jury Claim was issued on November 14, 2016. Plaintiffs' Opposition to Defendants' Motion to Dismiss was filed November 30, 2016. The Motion to Dismiss was heard on December 7, 2016, and was denied in this court's Memorandum and Order Denying Motion to Dismiss issued on December 9, 2016.

The Stipulation of Dismissal of Defendants' Second Counterclaim was filed on December 11, 2017. The Plaintiffs' Motion for Summary Judgment, Plaintiffs' Memorandum of Law in Support of their Motion for Summary Judgment, Affidavit of John M. McLaughlin in Support of Plaintiffs' Motion for Summary Judgment, Affidavit of Lynn S. Prunhuber in Support of Plaintiffs' Motion for Summary Judgment, Affidavit of Douglas J. Macleay, P.E. in Support of Plaintiffs' Motion for Summary Judgment, and Plaintiffs' Statement of Material Facts in Support of their Motion for Summary Judgment were filed on March 30, 2018. The Plaintiffs' Corrected Statement of Material facts in Support of their Motion for Summary Judgment was filed on April 11, 2018. The Defendants' Opposition and Memorandum of Law to Plaintiffs' Motion for Summary Judgment and Defendants' Cross-Motion for Summary Judgment, Defendants' Response to Plaintiffs' Statement of Material Facts in Support of their Motion for Summary Judgment (SOF); and Additional Material Facts in Opposition to Motion and in Support of Defendants' Cross Motion for Summary Judgment, and Affidavits of Chester Delaney, Nina Deluca, Darya Geetter, Mark Roggen, Laura Allen, William Warner, Richard Allen, and Robert Skidmore in Support of Defendants' Opposition to Plaintiffs' Motion for Summary Judgment and Defendants' Cross Motion for Summary Judgment were filed on May 1, 2018. The Appendix for Plaintiffs' Corrected Statement of Material Facts in Support of their Summary Judgment Motion was filed on May 25, 2018. The Plaintiffs' Response to Defendant's Statement of Additional Material Facts, Plaintiffs' Memorandum of Law in Reply to Objection to their Motion for Summary Judgment and Plaintiffs' Objection to Defendants' Cross Motion for Summary Judgment, Affidavit of Lynn S. Prunhuber in Further Support of Plaintiffs' Motion for Summary Judgment, and Affidavit of Douglas J. Macleay, P.E. in Further Support of Plaintiffs' Motion for Summary Judgment were filed on May 31, 2018. The Defendants' Motion to Accept Filing, Defendants' Supplemental Opposition to Plaintiffs' Motion for Summary Judgment, and Appendix were filed on June 5, 2018. The court heard the cross-motions for summary judgment and allowed the Defendants' Motion to Accept Filing on June 7, 2018.

Subsequently at a telephone conference call on July 13, 2018, the court determined that there are sufficient facts not in dispute to decide the issues of the entity status of the defendants and the preclusive effect, if any, of the district court opinion, and that it would consider whether it can decide the issue of the authority of the Prospect Heights Proprietors based on earlier resolutions referred to as "standing decisions." The cross-motions for summary judgment were taken under advisement with respect to the above enumerated issues. The remainder of the cross-motions for summary judgment were at that time denied. The court issued its Memorandum and Order on Cross-Motions for Summary Judgment on July 31, 2018 (Summary Judgment Order). In the Summary Judgment Order, the court found that the Prospect Heights Proprietors constitute an unincorporated association within the meaning of Mass. R. Civ. P. 23.2 and that defendant Richard Allen is an appropriate representative who is capable of fairly and adequately protecting the interests of the Proprietors in this action. The complaint was therefore amended to name as sole defendant Richard Allen as representative of the Prospect Heights Proprietors (Prospect Heights Proprietors), and Laura Allen and Chester Delaney were dismissed as defendants.

The Joint Pre-Trial Memorandum was filed on August 30, 2018. The Pre-Trial Conference was held on September 6, 2018, at which the court denied the plaintiffs' request to amend the Complaint to include a nuisance claim without prejudice to renewal of the request at the close of evidence. The court also found that based on the defendant's commitment to have a separate attorney appear pro hac vice, Richard Allen may testify and need not be disqualified as an attorney for defendant, as disqualification would work substantial hardship on the defendant. The Motion to Admit Attorney Pro Hac Vice and Affidavit was filed on September 17, 2018, and was allowed on September 18, 2018.

The court took a view on November 28, 2018. The Defendant's Motion to Compel Plaintiffs' Testimony at Trial and to Clarify Whether Defendant's Second Counterclaim has been Denied; Including Citation of Relevant Legal Authority and Affidavit of Richard Allen in Support was filed on December 4, 2018. The Plaintiffs' Opposition to Defendant's Motion to Clarify Whether Defendant's Second Counterclaim has been Denied, Plaintiffs' Opposition to Defendant's Motion to Compel Trial Testimony of Patti and Gayle Prunhuber, the Plaintiffs' Motion for a Protective Order Pertaining to Physical Presence of Patti and Gayle Prunhuber at Trial and the Plaintiff's Stipulations, and Affidavit of John M. McLaughlin were filed on December 13, 2018. At a telephone conference call on December 13, 2018, the court denied the defendant's motion to compel trial testimony and allowed the motion for clarification, clarifying that all claims of the defendant for relief or declaration with respect to rights of the plaintiffs to park on Lakeside Drive are dismissed.

Trial was held on January 8-9, and March 11-12, 2019. Exhibits 1-62, 48B, and 51A were marked, exhibits A-E and J were marked for identification, and chalks A-E were marked. Testimony was heard from Lynn Prunhuber, Tomasz Komar, Michael Spratt, William Warner, Brian Shaw, Douglas MacLeay, Nina DeLuca, Neil DeLuca, Robert Skidmore, Darya Geetter, Chester Delaney, Mark Roggen, Laura Allen, Genis Melendez-Delaney, and Richard Allen. The defendant's motion for mandatory dismissal was denied. The Plaintiffs' Post-Trial Memorandum of Law, Plaintiffs' Post-Trial Request for Findings of Facts, and Plaintiffs' Post-Trial Proposed Rulings of Law were filed on July 18, 2019. The Defendant's Post Trial Brief and Proposed Findings of Fact were filed on July 19, 2019. The court heard closing arguments on July 23, 2019, and took the case under advisement. This Decision follows.

Facts

Based on the view, [Note 1] the undisputed facts, the exhibits, the testimony at trial, and my assessment of credibility, I make the following findings of fact.

The Prunhuber Property

1. The sisters Lynn S. Prunhuber, Gayle Prunhuber, and Patti Prunhuber, who reside in North Seattle, Washington, Big Fork, Montana, and Berkley, California, respectively, are trustees of the Prunhuber Trust. Exh. 1.

2. The Prunhuber Trust took title to the property known as 62 Lakeside Drive (formerly Lakeside Road) in Egremont, Massachusetts (the Prunhuber property) by a deed dated from Lynn S. Prunhuber as Executrix of the Estate of Lauren F. Prunhuber, dated July 9, 2009, and recorded with the Southern Berkshire County Registry of Deeds (registry) at Book 1929, Page 190 (Prunhuber deed). Exhs. 1, 2.

3. The Prunhuber property consists of three lots: Lot 5-Section 1, Lot 7-Section 1, and Lot 9-Section 1, including the fee in 25 feet of the width of Lakeside Drive where it abuts each lot, as each appears on two recorded plans entitled:

a. "Map of Prospect Lake Building Lots Owned by William O. Siter In the Town of Egremont, Mass. Scale 1" = 100 Ft. F.M. Lane, C.E. November 3, 1956" recorded with the registry in Plan Book 2, Page 120, on July 10, 1957 (the 1957 plan); and

b. "Map of Prospect Lake Building Lots Owned by William O. Siter In the Town of Egremont, Mass. Scale 1" = 100 Ft. F.M. Lane, C.E. November 3, 1956" recorded with the registry in Plan Book D24, Page 8, on November 12, 1965 (the 1965 plan). Exhs. 1, 2, 3, 5.

4. The chain of title for the Prunhuber Property is as set forth on the following deeds:

a. The deed for Lot 5, from William and Florence Siter to Richard and Mildred Wagner dated March 2, 1957, and recorded with the registry on March 4, 1957, at Book 316, Page 408;

b. The deed for Lot 5, from Richard and Mildred Wagner to Maurice and Marcia Stiefel dated August 8, 1962, and recorded with the registry on August 10, 1962, at Book 335, Page 517;

c. The deed for Lot 5, from Maurice and Marcia Stiefel to Carlton Prunhuber dated July 8, 1965, and recorded with the registry on August 27, 1965, at Book 348, Page 475;

d. The deed for Lot 5, from Carlton Prunhuber to Lauren Prunhuber dated July 22, 1974, and recorded with the registry on February 20, 1975, at Book 398, Page 417;

e. The deed to Lot 7, from William and Florence Siter to Lauren and Dorothy Prunhuber dated June 4, 1957, and recorded with the registry on June 5, 1957, at Book 317, Page 140;

f. The deed for Lot 9, from William and Florence Siter to Raymond and Helen DeBole dated January 24, 1957, and recorded with the registry on February 7, 1957, at Book 316, Page 375A;

g. The deed for Lot 9, from Raymond and Helen DeBole to Lauren and Dorothy Prunhuber dated July 20, 1963, and recorded with the registry on July 24, 1963, at Book 339, Page 619;

h. The deed for Lots 7 and 9, from Lauren and Dorothy Prunhuber to Lauren Prunhuber dated April 8, 1996, and recorded with the registry on April 22, 1996, at Book 968, Page 309; and

i. The Prunhuber Deed. Exh. 1.

5. In 1957, Carlton and Dorothy (Dotty) Prunhuber, the parents of Lynn, Gayle, and Patti Prunhuber purchased Lots 7 and 9 of the Prunhuber property, and built a house on Lot 7. They purchased Lot 5 in 1965, and later built an addition on the south side of the house. The family spent summers, spring and fall weekends, and holidays there. Their father passed away in 2003, and their mother, Dorothy Prunhuber, passed away on September 17, 2017. Tr. I-32-36, 39, 44, 63-64; Exh. 37; view.

6. The Prunhuber property borders Lakeside Drive to the east, and sits between Lakeside Drive and Prospect Lake. The property slopes down from Lakeside Drive. There is a U-shaped driveway on the property to the north of the house. When the house was built and expanded, fill and gravel was brought in to level the area around the house. This created a flat area to the south of the house that is referred to as the "swale." The house was raised above the ground so that there was a sharp drop to the ground from the door facing Lakeside Drive, requiring two stone steps to the door. Later, after Mr. Prunhuber developed Parkinson's Disease and lost mobility, the family constructed a ramp or bridge from the higher ground to the front door. Tr. I-37-40, 88-89, 214-215, III-8-10, IV-214-216; Exhs. 37, 48 no. 140; view.

Prospect Heights

7. The 1957 plan, the 1965 plan, a third plan entitled "Map of Prospect Lake Building Lots Owned by William O. Siter In the Town of Egremont, Mass. Scale 1" = 100 Ft. F.M. Lane, C.E. November 3, 1958" recorded with the registry in Map Book 2, Page 154, on May 31, 1960 (the 1960 plan), and a fourth plan entitled "Property of Prospect Park Development Town of Egremont Berkshire County, Mass. Scale: 1"-100'," dated July 5, 1962, and recorded with the registry on Book D9, Page 7, on February 27, 1967 (the 1967 plan), generally depict a subdivision of 70 or more lots situated along the western shore of Prospect Lake in Egremont, Massachusetts, known as Prospect Heights. Exhs. 3, 4, 5, 6. The 1957, 1960, 1965, and 1967 Plans (collectively the Plans) are attached as Exhibits A, B, C, and D, respectively.

8. Prospect Heights starts with a private way leading from Prospect Lake Road, a public way in Egremont. This initial private way is known as Lakeside Drive (formerly Lakeside Road). It runs northerly for approximately 1/8 of a mile, where a private way known as Second Street splits off to the west and then turns north. Lakeside Drive continues running northerly past the Prunhuber property to where it ends by Prospect Lake. Second Street runs parallel to Lakeside Drive to the west. Shown on the plans are several rights of way that connect Second Street and Lakeside Drive, at least two of which exist on the ground and are used. The portion of Lakeside Drive between Prospect Lake Road and the split between Second Street and Lakeside Drive is referred to as the "stem." Exhs. 1, 3, 4, 5, 6; view; Tr. II-262-263, III-129-130, IV-114-115.

9. The records of the Town of Egremont list Lakeside Drive as being a private road "off Prospect Lake Rd" and Second Street as being a private road "off Lakeside Drive." The list of town roads was "compiled to create an inventory of the town's public and private roads and to see how many miles they covered." Two Mass DOT maps show the location of Lakeside Drive and Second Street, but only label lakeside Drive. Other private ways on the Mass DOT maps appear to be unlabeled entirely. It is unclear whether and to what extent such unlabeled roads are named at all. Exhs. 1, 25, 26, 27.

10. Some of the lots in Prospect Heights abut only Lakeside Drive, some abut only the stem, and some only abut Second Street. As shown on the 1960 plan, at least 24 lots abut both Lakeside Drive and Second Street. Many of the lots have been combined. Exh. 5; view.

11. The residents of Prospect Heights treat it as a single neighborhood. They socialize with each other, hold neighborhood events, and often walk or drive along both Lakeside Drive and Second Street. Over the years, even before the formation of the Prospect Heights Proprietors discussed below, residents took it upon themselves to repair the roads and construct culverts. Tr. II-214-215, 217, 236-239, III-78-80, 126-127, 135, IV-64-65, 116-117.

The Prospect Heights Proprietors

12. In 2002, three homeowners in Prospect Heights, Allen, Todd Tinker, and Frank Frecentese, signed and filed with the Egremont Town Clerk a document entitled "Application to Call Proprietors' Meeting Prusuant [sic] to MGL Chapter 84, Section 12." The application read:

The undersigned are rightful occupants of the private ways known as Lakeside Drive and Second Street in Egremont. They apply hereby for a warrant calling a meeting of the proprietors of such private ways, all as described in the attached warrant.

Exhs. 1, 7.

13. Margaret Muskrat executed the attached Warrant on October 1, 2002. The Warrant reads:

A meeting of the proprietors and rightful occupants of the private ways known as Lakeside Drive and Second Street will meet on 10/12/02 at the Town Hall in North Egremont for the purpose of choosing a clerk, surveyor and an assessor and determining the manner of calling future meetings, what repairs to and maintenance of such ways are necessary and the proportion of money and of labor and materials to be furnished by each proprietor and occupant for such repairs and maintenance, all pursuant to General Laws of Chapter 83, Section 12 to 14.

Exhs. 1, 8.

14. Pursuant to the Warrant, the Prospect Heights Proprietors (Proprietors) formed in 2002. I have previously found that the Proprietors constitute an unincorporated association.

15. The Proprietors collect assessments from all the property owners on Lakeside Drive, Second Street, and the stem. They hold annual meetings, discuss how to make assessments and what road repairs and maintenance are necessary, take votes, keep meeting minutes, elect officers, collect assessments, pay bills and make expenditures, undertake road repair and maintenance of Lakeside Drive, Second Street, and the stem, have brought civil actions in the individual names of its elected officers, and have called meetings based on warrants, all purportedly under the authority granted by G.L. c. 84, §§12-14. They maintain a bank account, but do not have a taxpayer identification number. Their annual budget is about $15,000. All of the residents of Lakeside Drive, Second Street, and the stem are invited to the meetings. Exhs. 1, 10, 11, 13-23; Tr. III-118-135, 149, IV-36-37, 118, 121-122, 127-130, 153.

16. The Proprietors meet annually to elect the positions of Surveyor, Clerk, and Assessor. Mark Roggen is the current Clerk; previously, Laura Allen was Clerk. Dan Blitzer is the current Assessor; Chester Delaney (Delaney) was the Assessor at the time this action was brought. Allen is and has been the elected Surveyor of the Proprietors since July 2013. As Surveyor, Allen submitted reports on proposed work to be authorized by the Proprietors, arranged for work authorized by the Proprietors and prepared all of the complaints filed or contemplated to be filed seeking payment of overdue assessments from 2004 to the present. Exhs. 1, 10, 11, 13, 15, 18, 20, 22; Tr. III-119, 124, 129, 211, IV-150.

17. The Proprietors keep minutes of their annual meetings. The minutes record the attendees, the subjects of and substance of discussions (usually road maintenance and repair), and the votes on motions. The votes are not distinguished between residents on Lakeside Drive and Second Street, but rather are reported by the total vote. The minutes each provide that "[t]he meeting was of all proprietors since Lakeside Drive and Second Street have been judicially determined to be one 'private way'. If that determination is invalid, and separate meetings are required, the meeting was instead separate meetings of the proprietors of Lakeside Drive and of Second Street, and the results of decisions made at the meeting would not be different." Exhs. 1, 14, 16, 17, 19, 21, 23; Tr. IV-33-36, 121-123.

18. The judicial determination referred to in the minutes is from a previous action between the Proprietors and a nonparty, described above, the District Court for the Southern Berkshire County (District Court), Docket No. 0429CV0091 (the District Court case). In the District Court case, the court considered the issue of whether the disputed ways were one or two private roads. In a summary judgment decision dated December 22, 2004, the court found that:

As to the question of whether Lakeside Drive and Second Street constitute one or two ways there is no genuine issue of fact. Whether one's property is on the Lakeside prong or the Second Street prong of the fork there exists only one means of ingress and egress to and from Prospect Lake Road, the public way. Therefore as a matter of law, I rule that Lakeside Drive/Second Street is, for the purpose of levying assessments pursuant to G.L. c. 84 s. 14, one road consisting of a common access and two branches.

Exhs. 1, 10, 28; Tr. IV-127-128.

19. The minutes of the meetings of the Proprietors held in July 2014, July 2015, and September 2015, are accurate except for (i) the issue of whether the meetings are invalid because there is more than one private way, and (ii) the issue of whether the surveyor was authorized to have the culvert installed at the 2014 meeting. The only defects in the calling and holding of meetings of the Proprietors relate to the issue of whether there is more than one private way. Exhs. 1, 14, 16, 17.

The Culvert at the Prunhuber Property

20. I credit the testimony of Michael Spratt, Brian Shaw, Nina DeLuca, Neil DeLuca, Robert Skidmore, Delaney, and Mark Roggen that before 2014, Lakeside Drive in the area of the Prunhuber property was often muddy, icy in the winter, and full of potholes, making passage by vehicles difficult. The problem became more urgent when Nina and Neil DeLuca and their children moved into the house just north of the Prunhuber property in 2011 and lived there full-time. They needed to pass the Prunhuber property on Lakeside Drive multiple times a day and often found passage difficult. They urged the Proprietors to take steps to fix the problem. Tr. I-220-221, II-9-11, 14, 146-149, 151-156, 158, 166-168, 173, 180-183, 215-217, 221-223, III-80-81, 136-140, 197-198, IV-159, 161-162.

21. In the summer of 2014, Allen, in his capacity as Surveyor, recommended to the Proprietors that they grant him authority to "improve the Prunhuber area on Lakeside Drive." At the July 5, 2014, meeting of the Proprietors, they voted to grant Allen authority to make improvements to Lakeside Drive at the Prunhuber property. Neither Dotty Prunhuber nor any of the trustees of the Prunhuber Trust attended this meeting. At the meeting, Allen reported that Dotty Prunhuber had objected to the project at her property. Exhs. 1, 14, 15; Tr. I-97, III-21, IV-177.

22. Allen consulted with William Warner (Warner) and Todd Tinker about what improvement to make. Both of them are excavators who have businesses installing culverts. Neither of them is an engineer. Allen is not an engineer, a hydrologist, or a land surveyor (as opposed to holding the title "Surveyor" under G.L. c. 84, §§12-14). Allen did not consult any engineer, hydrologist, or surveyor before approving installation of the culvert. Tr. I-243, II-51, IV-132-133, 159-160, 172-174, 184-185, 198-201.

23. Warner recommended installing a culvert. Allen retained Warner and his business, William Warner Construction, to install the culvert. Warner has installed hundreds of gravel roads and culverts, including at least six culverts in Prospect Heights. He had no written contract, and was paid approximately $1,300. Exh. 1; Tr. I-243-245, II-34, IV-133.

24. In communications during the summer and fall of 2014, Dottie Prunhuber made it clear to Allen that she did not want the culvert to be installed. Exhs. 29, 30, 31, 32; Tr. I-58-62, IV-133-134, 174-175, 177.

25. In an email to Delaney, dated September 11, 2014, Allen wrote, "I'm pretty sure it will not drain into her house, just go around." Exhs. 1, 29.

26. The Prunhuber Trust retained a registered landscape architect, Brock Cutting (Cutting), to investigate the situation relative to the proposed culvert. Cutting produced a report, dated October 9, 2014, which included recommendations in connection with the proposed culvert. Cutting recommended (a) grading Lakeside Drive as a single continuous slope from west to east so that water would flow in a sheet along the entire width of the Prunhuber property rather than be concentrated in a single spot; and (b) installing a "level lip spreader" to take the concentrated flow from a culvert and spread it over a longer length. Cutting's letter was provided to Allen. Exhs. 1, 33; Tr. I-51, 62, III-25-26.

27. On October 14, 2014, Allen wrote an email to Laurie Warner, Warner's wife, stating that Dotty Prunhuber would prefer grading the road from west to east so that water would run in a sheet flow onto the Prunhuber property, and asked if such a grading could be done. Ms. Warner replied the next day, stating, "It could be done if you raise the other side high enough. But can not be done just by grading it needs material added to the slope the road." Ms. Warner and Mr. Warner run their business together, and she is authorized to send emails on her husband's behalf. Exhs. 1, 30; Tr. II-44-45, IV-181-183.

28. On October 22, 2014, Dottie Prunhuber sent an email to Allen reiterating her objection to the installation of a culvert, and directing Allen to communicate with Lynn Prunhuber, her daughter and trustee of the Prunhuber Trust. Exh. 32.

29. Allen directed Warner to install the culvert. Warner undertook installation of the culvert in late October or early November 2014, before November 3. He located the culvert at a point on Lakeside Drive by the Prunhuber property that is at a low point of slopes coming down from both the north and the south. Allen and Warner agreed that the culvert would be installed so as to concentrate the flow of water toward and onto the Prunhuber property. View; Exhs. 32, 37, 38; Tr. I-141-145, 147, 250, 252-255, II-41-42, 51, 64.

30. Warner dug a trench on the west side of Lakeside Drive running from a point to the north down to where the inflow to the culvert would be. He then excavated the paved width of Lakeside Drive, approximately 13-14 feet, installed a 12-inch plastic or polyethylene pipe, and covered it with granular material known as driveway mix. He did not dig a trench on the east side of Lakeside Drive where the pipe emerges and the outflow of water runs. Exhs. 1, 37, 38; Tr. I-248-249, II-20; view.

31. On November 2, 2014, Allen sent an email to Dottie Prunhuber stating: "We put in a culvert this week. I think you'll be happy with it." In response, on November 3, 2014, Lynn Prunhuber sent an email to Allen as follows:

Richard,

You did not have permission to put a culvert on or through the Prunhuber property, nor to trespass on the property. My mother is not happy.

Please note, as written below, that I am the trustee of the trust that formally owns this property, and a copy of all communications regarding this property needs to be sent to me.

Exh. 32.

32. In an email the following day, Allen sent Lynn Prunhuber the 2014 Surveyor's report. Exh. 32.

33. In an email dated November 4, 2014, Allen forwarded the email from Lynn Prunhuber. He stated, "I suggest we ignore this 'lawyers letter' until they take further action, which I doubt will happen." Exh. 1.

34. Dotty and Lynn Prunhuber remained upset after the culvert was installed. They were concerned about the effect of the culvert's draining water on the Prunhuber property. They believed, and suggested to Allen or Delaney, that the road should be pitched to drain stormwater in a sheet flow onto the Prunhuber property along its entire length. Dotty Prunhuber recalled that the road had been pitched that way in the past. Lynn Prunhuber had several conversations with Delaney in early November 2014; Delaney sent her various documents. Delaney then sent her an email on or about November 13, 2014, stating that all communications had to be by email. The Prunhubers then engaged civil engineer Douglas MacLeay (MacLeay) to investigate and produce a report. Tr. I-66, 68-69, 78-80, 150-151, III-24-26.

35. MacLeay is a Massachusetts licensed civil engineer with many years of experience dealing with drainage issues, including culverts. After he was engaged by the Prunhubers, he made several investigations of the conditions at the Prunhuber Property and produced two reports, one in 2014 and another in 2017. He visited the Prunhuber property four times: on November 29, 2014, June 27, 2017, an unspecified date in October 2017, and in the summer of 2018 prior to the Proprietor's annual meeting. Exhs. 1, 34, 36, Tr. II-76-81.

36. In his December 6, 2014, report to Lynn Prunhuber (the 2014 MacLeay report), MacLeay raised some legal issues with respect to the culvert: namely, whether the Proprietors had the legal authority to install the culvert, and whether the culvert project required approval of the Egremont Conservation Commission because it was within 100 feet of Prospect Lake. He also raised several concerns about the design and construction of the culvert. On the inlet side, the road bank was not sloped and vegetated and the ditch was not stabilized, which could lead to erosion. On the outlet side, the culvert had no protection from erosion from the outflow of water, and, due to its location, runoff could carry sediments and pollutants to the yard and house foundation. He suggested three possible solutions: (1) relocate the culvert so as not to concentrate water on the Prunhuber property, (2) construct a rock-lined swale from the outlet to carry water to the south and disperse it as sheet flow on the vacant lot, or (3) remove the culvert entirely and regrade the roadway. This report was provided to Allen. Exh. 34; Tr. I-51, 66, III-26-27.

37. In February of 2015, the Plaintiffs made demand upon the Defendants to remove the culvert. The Defendants received the demand but did not remove the culvert. Exhs. 1, 35.

38. Lynn Prunhuber requested and was given the opportunity to speak at the July 4, 2015, Proprietors' annual meeting. She presented reasons why the culvert should never have been built and why it harmed the Prunhuber property, and asked the Proprietors to vote to remove the culvert. Allen spoke against removing the culvert. Tr. I-67-68, 97-98, III-21-22, 68-69; Exhs. 16, 51A.

39. The Proprietors voted not to remove the disputed culvert but rather to hire an engineer to review the engineering reports prepared for the Prunhuber Trust, do an independent investigation, and make recommendations. Exh. 16; Tr. III-22-23.

40. Another meeting of the Proprietors was held on September 5, 2015. Dotty Prunhuber attended the meeting; Lynn Prunhuber did not. At the meeting, the actions of the Surveyor, Allen, regarding installation of the culvert were ratified. The Proprietors voted unanimously "that the title holder of the Prunhuber property obtain proposals, including cost, for the three solutions set forth in [the 2014 MacLeay report] (and any other solutions the title holder may propose) and attest in writing that those solutions would be acceptable to the title holder, after which a decision with respect thereto will be made by the proprietors at a meeting." Exhs. 1, 17; Tr. III-34-38.

The Impact of the Culvert on the Prunhuber Property

41. Since the culvert was installed, water and melting snow have not run across the Lakeside Drive roadway from its western side to its eastern side. I credit testimony that the mud and ice problems on Lakeside Drive have lessened since the installation of the culvert. Exh. 1; Tr. I-222, II-10-11, 158-159, 183, 223, 235.

42. The same cannot be said for the impact of the culvert on the Prunhuber property. I credit Lynn Prunhuber's and Tomasz Komar's (Komar) testimony that, before the culvert was installed, the Prunhuber property was not swampy and drained well, and that stormwater ran off Lakeside Drive onto the Prunhuber property along the entire length of the bound between the road and the property. Tr. I-37-38, 40, 121, 162, III-14-15, 74.

43. Based on the view, the testimony of Lynn Prunhuber, Komar, and MacLeay, all of which I credit, and the photographic evidence, I find that since the culvert was installed, water discharged from the culvert has and continues to run in a concentrated stream past the boundary of Lakeshore Drive onto the Prunhuber property, pooling in the swale.

44. First it is important to establish where the boundary of Lakeside Drive is. Allen and Delany placed pink flags where they contend the easterly edge of Lakeside Drive at the Prunhuber property is located. I observed the flags at the view. They located these flags by taking measurements from certain property bounds that they found (while trespassing on the Prunhuber property). Neither Allen nor Delaney is a land surveyor. I do not credit Allen's and Delaney's lay estimation of the boundary and I do not credit the flags as showing the edge of the Lakeside Drive right of way. The parties have agreed and I accept that the shortest distance from the discharge end of the culvert to any point on the easterly edge of the Lakeside Drive right of way is no more than eight feet. Exh. 1; Tr. III-83-89, 111-112, 115, IV-113-114, 201; view.

45. For reference, several photographs show a view from the corner of the house to the culvert outlet. Exh. 48, nos. 138, 140, 166; Tr. III-16-19; view.

46. MacLeay testified that after first inspecting the culvert in November 2014, he formed the opinion that the culvert "seemed to be putting water right directly at the house foundation." This was contrary to the normal practice for culverts and drainage, which is to direct the outfall to a neutral area. Tr. II-85-89.

47. In subsequent visits in 2017, MacLeay observed sediment blocking the culvert on the inlet side, which he anticipated would lead to sediment being deposited on the outfall side by the Prunhuber property. He opined that if the water runoff carried this sediment to the swale, it would begin to fill the swale and make drainage worse, or, in a strong enough storm, carry sediment to the lake. He also prepared a topographic survey of the Prunhuber property, Lakeview Road, and the culvert. Tr. II-89-92, 95; Exhs. 37, 38.

48. MacLeay used the topographic maps and other information to estimate the drainage area contributing to the culvert. He concluded that the drainage area consisted of road runoff and a runoff from a two-acre area west of and uphill from Lakeview Road, running from 200 feet south of the culvert to just past the turnout to the north. Using the computer program Hydro CAD, he estimated the quantity of water that would flow through the culvert in a two-year storm event as approximately 37 gallons per minute. His opinion was that that rate of discharge from the culvert would cause severe erosion at the outlet, bring water to the swale, and ultimately bring water and sediment to the lake. He further opined that a five-year storm event "would cause a great deal of damage and might wash out the culvert and the road," "damage the foundation and result in water in the basement," and "exceed the capacity of the swale." A 100-year storm would exceed the capacity of the culvert. I credit MacLeay's opinion. Tr. II-96-98, 110-114.

49. Observations of the Prunhuber property bear out MacLeay's opinion. When Lynn Prunhuber was at the Prunhuber property in July 2015, she observed water draining from the culvert and causing erosion, and took a picture of the same. Tr. 1:70-71, 74-75, 117-119, III-62-63; Exh. 48, Nos. 153-154.

50. Komar is a family friend of the Prunhubers - he took care of Mr. Prunhuber during Mr. Prunhuber's illness and took care of Dottie Prunhuber at the end of her life. On October 12, 2018, Komar was at the Prunhuber property. He observed water running out of the culvert and down onto the property, and took a video of this water which was shown during the trial. The video shows water flowing from the culvert down a ditch that appears to have been created through the erosion from the water, for a length of approximately 10 meters. Tr. I-157-159, 165-168, 193-201; Exh. 48, video, 48B, nos. 61-62.

51. Komar returned to the Prunhuber property on November 3, 2018. That day, he saw water "flushing out a lot from the culvert and there was standing water by the house." The water ran from the culvert, flowing under the leaves on the ground, to pool in the swale "almost like a big lake on the side of the house." This amount of water was the most he had ever seen coming from the culvert, and the ground had never been as wet as it was that day. Komar took photographs of this water flow. Lynn Prunhuber concurred that the standing water in the swale was a change. Tr. I-163-164, 168-171, 173-177, 184, 188-191, 202-206, 209, III-63-64; Exh. 48, nos. 184-190.

52. This water did not flow off of the driveway. I credit Komar's testimony that water flowing down the driveway ran down to the north of the house, which is the opposite side of the house from the swale. Tr. I-213-216; Exh. 48B, nos. 80, 92.

53. At the view on November 28, 2018, I observed conditions similar to those that Komar testified to. Although there was not as much water flowing from the culvert as shown in the photographs Komar took, I did see water coming from the culvert and flowing under the leaves and snow to the swale. View.

54. Other photographs either show water flowing from the culvert toward the Prunhuber property or show evidence of the flow of water. Exh. 48, nos. 155, 158, 180, 193, 194, 195; Tr. III-49-51, 53-55.

55. Thus, I do not credit the testimony of other witnesses who said they never observed water leaving the culvert and flowing onto the Prunhuber property. I find that they may have observed the culvert at times when water was not flowing through it, or observed the same flows observed by Lynn Prunhuber, Komar, and myself, but did not consider those flows as significant. I also find that contrary to the suggestion of several witnesses, water flowing down the Prunhuber driveway does not significantly run under the "bridge" at the front door down to the swale, but runs to the north of the house. Tr. II-231, 255-257, III-90-91, 94, 150, 175, 226-227, IV-13, 57, 77-81, 86, 138-139; view.

56. I find that Allen and Warner (at Allen's direction) intentionally designed and installed the culvert so that water flowing out of the culvert would flow down onto the Prunhuber property. I further find that during a rainstorm of any magnitude, that is precisely what happens. Water regularly flows from the culvert onto the Prunhuber property, and pools in the swale and along the foundation of the Prunhuber house.

57. No part of the Prunhuber Property is encumbered with a drainage easement for the benefit of the Proprietors or any other property owner in Prospect Heights. Exhs. 1, 2.

58. MacLeay testified that in his opinion the only acceptable ways to address the culvert are to move it farther to the south or install ditching on the downslope side of the road so that the water would be taken to a neutral zone, or to lay down fabric and grade the road at an estimated cost of three to four thousand dollars. Tr. II-93-94, 122-123. I credit MacLeay's testimony.

Discussion

In the Summary Judgment Order, I found that the Proprietors constitute an unincorporated association within the meaning of Mass. R. Civ. P. 23.2 and that Allen is an appropriate representative who is capable of fairly and adequately protecting the interests of the Proprietors in this action. The complaint was therefore amended to name as sole defendant Allen as representative of the Proprietors. I also found in the Summary Judgment Order that the summary judgment decision in the District Court case has no preclusive effect on this action.

That left two issues to be tried. The first is whether the Proprietors were properly constituted and had the authority to install the culvert. This issue turns on whether there are one or two private ways in Prospect Heights; in other words, whether the Proprietors could lawfully be constituted from the owners of lots on both Lakeside Drive and Second Street, as they are, or whether there have to be separate sets of proprietors consisting only of the owners of lots along each of those private ways. The second issue is whether the flowing of water from the culvert onto the Prunhuber property constitutes a trespass or nuisance for which the Proprietors are liable, and, if so, what remedy should be ordered. [Note 2]

The Proprietors

The Proprietors sought to organize themselves under the Proprietors' Statute, G.L. c. 84, §§12-14. The Proprietors Statute is a law of long standing. It provides a mechanism for the owners along a private way to organize and obtain the legal authority to maintain and repair the private way in the same way that municipal officials can maintain and repair public ways. Section 12 provides in relevant part:

If four or more persons are the proprietors and rightful occupants of a private way or bridge, and three of them make application in writing to a clerk of the district court . . . or the clerk of the city or town wherein the private way or bridge is located . . . to call a proprietors' meeting, the clerk . . . may issue his warrant therefor, stating the time, place and purpose of the meeting. . . . The proprietors and occupants so assembled shall choose a clerk and surveyor, who shall be sworn. They may determine the manner of calling future meetings, what repairs of the way or bridge are necessary and the proportion of money and of labor and materials to be furnished by each proprietor and occupant for such repairs. The surveyor shall have the same powers with respect to such way or bridge as are exercised by surveyors of highways.

G.L. c. 84, §12. Section 13 provides for the liability of a proprietor or occupant who refuses to comply with the vote taken under §12. G.L. c. 84, §13. Section 14 provides that the proprietors and occupants may, at a meeting, vote to authorize any person to contract for repair or maintenance of the private way or bridge and to assess each other the amount necessary for the maintenance or repair "according to his interest in such way or bridge." G.L. c. 84, §14.

The Proprietors followed the statute. They sought and obtained a warrant in 2002. They met and elected a surveyor, clerk, and assessor. Since then, they have met annually to elect these officers, to make assessments on each other, and to approve expenditures for maintenance and repair of Lakeside Drive, Second Street, and the stem. The surveyor has undertaken maintenance and repairs with the authority of the Proprietors. The only aspect of the Proprietors' activities that the Prunhuber Trust challenges is whether the Proprietors were properly constituted to begin with.

The Prunhuber Trust argues, in brief, that the Proprietors' Statute only allows those persons who own property along a single way to organize as proprietors. Thus, the Trust argues, the Proprietors did not have the legal authority to do what they did: to organize the owners bounding two different private ways, Lakeview Drive and Second Street, into a single group of p proprietors that purported to act together to assess the owners along both ways and to make repairs on both ways. If the Trust is correct, then the Proprietors were never properly constituted and their construction of the culvert was without legal authority.

There are few, if any, cases interpreting the Proprietors' Statute. The Prunhuber Trust relies on a decision of this court, Denardo v. Bosworth, 16 LCR 416 , 2008 WL 2563354 (Mass. Land Ct. 2008) (Trombly, J.). Denardo concerned a subdivision in Sandwich created in 1925. The defendants owned lots along Cranberry Trail; the plaintiff owned a lot along Beach Way. Both were private ways; Beach Way branched off from Cranberry Trail and led to Cape Cod Bay. One of the defendants had a record easement in Beach Way and the others claimed a prescriptive easement. Id. at *2-*3. The defendants had sought and obtained a warrant to organize as proprietors of Cranberry Trail, Beach Way, and another private way in the subdivision, conducted meetings, and assessed all the owners along those ways, including the plaintiff. Id. at *3-*4. The plaintiff challenged the defendants' authority to act as proprietors of Beach Way. Id. at *6.

The court looked at the language of the Proprietors' Statute. It focused on the requirement that only "persons [who] are the proprietors and rightful occupants of a private way" could apply for a warrant. Id. at *6-*7; G.L. c. 84, §12. The court interpreted "proprietor" to mean a person who has an ownership interest in property. Denardo, 2008 WL 2563354, at *7. The defendants had an ownership interest in Cranberry Trail because they abutted the private way, but they did not abut Beach Way. See G.L. c. 184, §51. Their purported easement interests in Beach Way were not the kind of fee interest that would make them proprietors of Beach Way. Denardo, 2008 WL 2563354, at *7. The court then interpreted the term "rightful occupant." The court held that to be a rightful occupant of the way, a person had to have seized possession and maintained control of the way. Id. at *8. By definition, an easement is a nonpossessory interest in land. Therefore, the defendants' easement interest in Beach Way, if any, did not make them a rightful occupant of Beach Way. Id. Because the defendants were neither proprietors nor rightful occupants of Beach Way, they lacked authority to apply for a warrant and hold proprietors' meetings as proprietors of Beach Way. Id.

The Prunhuber Trust argues that Denardo is squarely on point, and that because owners of lots on Second Street participated in the warrant and in Proprietors' meetings, the warrant and meetings lacked any authority over Lakeside Drive. The analysis in Denardo was based on the undisputed fact that Cranberry Trail and Beach Way were separate private ways. Here, on the other hand, that question is at the heart of the dispute. That is, the issue is whether Lakeside Drive, Second Street, and the stem are in fact separate ways or one way for the purposes of the Proprietors' Statute.

I find that Lakeside Drive, Second Street, and the stem constitute a single, connected private way as that term is used in the Proprietors' Statute, and that the Proprietors had the authority to obtain a warrant, conduct their meetings, assess the property owners for maintenance and repair, and authorize that maintenance and repair. I recognize that Lakeside Drive may have been laid out or constructed before Second Street (the dates on the plans seem to suggest that, but it is not at all clear). Exhs. 3, 4, 5, 6. I also recognize that town records list Lakeside Drive and Second Street as separate ways, while some Mass DOT plans do not list them as separate ways. Exhs. 1, 25, 26, 27. Looking at how Prospect Heights is laid out on the ground and how it functions, I find that the stem, Lakeside Drive, Second Street, and the ways connecting Lakeside Drive and Second Street all function and are used as a single private way. The owners of the properties in Prospect Heights use all of these ways and rely on them, especially the stem, which is used by owners on both Lakeside Drive and Second Street. The owners all have a common interest in maintaining and repairing all of the ways of Prospect Heights. Moreover, it would be cumbersome and unreasonable to ask the owners to try to separate themselves into owners along Lakeside Drive and owners along Second Street. There are multiple property owners whose lots abut both Lakeside Drive and Second Street, or the connecting ways. They would have to be proprietors of both of those ways, paying multiple assessments. It is reasonable and serves the purpose of the Proprietors' Statute to treat all the ways as a single way.

The Culvert

I have found that the Proprietors intentionally installed the culvert so that it would direct water onto the Prunhuber property. The Prunhuber Trust contends that by doing so, the Proprietors have made a continuing trespass on the Prunhuber property, or, in the alternative, have unreasonably caused water to divert on their property, thus creating a nuisance. The Proprietors contend that they have not trespassed, and have installed a culvert that reasonably channels water from Lakeside Drive. The parties dispute whether the Prunhuber Trust's claim sounds in trespass or in nuisance. A plaintiff may bring both a trespass and a nuisance claim in response to the entry of water upon the plaintiff's land; one does not preclude the other. See DeSanctis v. Lynn Water & Sewer Comm'n, 423 Mass. 112 , 118 (1996) (finding for defendant on nuisance claim did not preclude trespass claim). As discussed below, analyzing the Trust's claim under either standard, the Proprietors are liable to the Prunhuber Trust for diverting water onto the Prunhuber property.

"A trespass is an invasion of the interest in the exclusive possession of land, as by entry upon it." Amaral v. Cuppels, 64 Mass. App. Ct. 85 , 91 (2005), quoting Restatement (Second) of Torts §821D comment d (1979) (Restatement). The plaintiff must have "actual or constructive possession" of the land trespassed upon. Emerson v. Thompson, 19 Mass. 473 , 484 (1824). The entry must be made without the possessor's consent or some other privilege or right to do so. Gage v. City of Westfield, 26 Mass. App. Ct. 681 , 695 n.8 (1988), quoting Restatement (Second) of Torts §329 (1965). The entry must be an affirmative voluntary act, or the result of an affirmative voluntary act. United Elec. Light Co. v. Deliso Constr. Co., 315 Mass. 313 , 318 (1943). This affirmative voluntary act may be one that is not the entry itself, but sets in motion a force which makes the entry. "A landowner who sets in motion a force which, in the usual course of events, will damage the property of another is guilty of trespass on such property." Sheppard Envelope Co. v. Arcade Malleable Iron Co., 335 Mass. 180 , 187 (1956); see Amaral, 64 Mass. App. Ct. at 91. Thus, for example, a trespass can be the result of cinders emanating from the defendant's cupola falling on the plaintiff's property, see Sheppard, 335 Mass. at 187, baseballs hit from a city park, see Hennessy v. City of Boston, 265 Mass. 559 , 561 (1929), or golf balls hit into the plaintiffs' yard from defendants' golf course, see Amaral, 64 Mass. App. Ct. at 91.

Applying these principles, I find that, while the Prunhuber Trust has title to the centerline of the portion of Lakeside Drive abutting their property, the Proprietors did not trespass in installing the culvert in that part of Lakeside Drive. All the owners in Prospect Heights have the right to pass over Lakeside Drive, and, as I have found, the Proprietors were rightfully constituted and had the right under the Proprietor's Statute to install the culvert as part of the maintenance and repair of Lakeside Drive. Exh. 2; G.L. c. 84, § 14. Thus, the Proprietors' entrance upon Lakeside Drive to install the culvert itself was made under a right to do so, and is not a trespass.

On the other hand, I find that the Proprietors have trespassed by directing water from the culvert onto the Prunhuber property. Water from the culvert enters the Prunhuber property on an ongoing regular basis. The water is directed and set in motion by the affirmative voluntary act of the Proprietors, namely, their intentionally installing the culvert in such a way as to direct water onto the Prunhuber property. Allen, acting on behalf of the Proprietors, knew that the culvert was designed to direct water. He was told that it would direct water onto the Prunhuber property by the Prunhubers and their experts, acknowledged that it would direct water onto the Prunhuber property, and intentionally had it installed so that it would do so. The Proprietors had no permission to direct water onto the Prunhuber property and no easement or other right to do so. As Allen has recognized, the Proprietors have no authority to make a taking. Exh. 1. Like the golf course in Amaral or the industrial building defendant in Sheppard Envelope, the Proprietors affirmatively and voluntarily set in motion a force—water—which in the usual course of events enters and damages the Prunhuber property. The Proprietors are liable for an ongoing trespass on the Prunhuber property.

Nuisance differs from trespass in that it consists of using one's own property in a way that interferes with the use and enjoyment of another's property. See Amaral, 64 Mass. App. Ct. at 90-91 (comparing nuisance and trespass); Prosser & Keeton, Torts §87, at 622 (5th ed. 1984). A special category of nuisance is nuisances caused by actions on one's property that result either in water running onto another's property or in a change of water flow. The common-law "common enemy" rule for such nuisances was prospectively changed in Tucker v. Badoian, 376 Mass. 907 (1978). In Tucker, the SJC announced that going forward, the standard for diversion of surface water nuisances would be the "reasonable use" rule. Id. at 916-919 (Kaplan, J., concurring). "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.'" DeSanctis, 423 Mass. at 116, quoting Armstrong v. Francis Corp., 20 N.J. 320, 327 (1956). Reasonableness is a question of fact. Id.; von Hennenberg v. Generazio, 403 Mass. 519 , 522 (1988). It is not sufficient for the plaintiff simply to show that the defendant was negligent. DeSanctis, 423 Mass. at 116-117. Rather, the factfinder must consider "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." Id. at 116; see von Hennenberg, 403 Mass. at 522. The test focuses less on the character of the property owner's action and more on the results of the action and the consequent interference with the plaintiff's use and enjoyment of his or her land. Thus, for example, a landowner's conduct can be unreasonable if the harm to a neighbor is substantial and the landowner could avoid the harm in whole or in part without undue hardship. Trenz v. Town of Norwell, 68 Mass. App. Ct. 271 , 276 (2007).

Applying this analysis, I find that the Proprietors acted unreasonably in installing the culvert and directing surface water flow in a stream onto the Prunhuber property. Before the culvert was installed, water from Lakeside Drive flowed in a sheet flow onto the Prunhuber property, so that the water was dispersed across the entire bound of the property and was easily absorbed. The culvert was designed to, and did, take that sheet flow (including water from the hill to the west) and direct it in a stream onto the Prunhuber property. This change in flow resulted in land that was formerly dry most of the time becoming wet, with pools of standing water in heavier rainstorms. See id. at 277 (change from land being generally dry to being inundated can be unreasonable). This harm to the Prunhuber property was entirely foreseeable—indeed, it was predicted by Cutting and MacLeay, and complained about by Lynn Prunhuber. Allen, on behalf of the Proprietors, was fully aware of this potential harm, and simply went ahead with the culvert anyway.

The installation of the culvert so as to direct water flow onto the Prunhuber property was especially unreasonable given that the harm to the Prunhuber property could be avoided at a reasonable cost. I accept that the specific location of the culvert is reasonable—it is placed at a low point on Lakeside Drive. But I also recognize that the Proprietors had before them two different ways to avoid directing water onto the Prunhuber property: either creating a trench at the outlet to carry water along Lakeside Drive to the south where it can disperse on the way that leads to the lake or regrading Lakeside Drive to reestablish the sheet flow.

The Proprietors act as a kind of private equivalent to a municipal department of public works, although with no power to make a taking. They had no easement or permission to drain water onto the Prunhuber property. Instead, they decided that the Prunhuber property should be the sole property affected by their solution to a general problem on Lakeside Drive. "[I]t is unreasonable to impose on private individuals a disproportionate share of the cost of this public benefit." Triangle Center, Inc. v. Department of Public Works, 386 Mass. 858 , 864 (1982). The Proprietors acted unreasonably, and are liable to the Prunhuber Trust for the nuisance they created.

Remedy

The Prunhuber Trust does not seek money damages. Rather, the Trust seeks an injunction. The flow of water onto the Prunhuber is a continuing trespass. In that circumstance, an injunction prohibiting the continuing trespass is an appropriate remedy. Amaral, 64 Mass. App. Ct. at 91. Similarly, an injunction abating the nuisance of a continuing flow of water is also an appropriate remedy. Triangle Center, Inc., 386 Mass. at 864. I find that an injunction is appropriate here. The invasion of the Prunhuber property is ongoing, and must be stopped. The possible ways to stop it were put before the Proprietors, and they simply ignored them. Certainly, the cost of various remedies is a factor. For this reason, I will enter an injunction giving the Proprietors two options. Judgment shall enter enjoining the Proprietors from maintaining the culvert in its current state. The Proprietors will be ordered to, within ninety days, either (a) install a trench and rock-lined swale at the outlet of the culvert directing the flow of water withing the layout of Lakeside Drive southerly to the point where it can discharge onto the unnamed private way between Lots 2 and 11 as shown on the 1965 plan, or (b) regrade Lakeside Drive along the Prunhuber property so that water again flows off Lakeside Drive in a sheet flow along the entire bound of the Prunhuber property.

Conclusion

For the foregoing reasons, I find that the Proprietors are liable to the Prunhuber Trust for trespass and nuisance. Judgment shall enter for the Prunhuber Trust, declaring that the culvert constitutes a trespass and a nuisance, enjoining the Proprietors from continuing the trespass and nuisance, and ordering the Proprietors to take the actions set forth above. The Proprietors' counterclaim shall be dismissed with prejudice.

Judgment Accordingly.