Plaintiffs Lynn S. Prunhuber, Gayle Prunhuber, and Patti Prunhuber, as Trustees of the Lauren F. Prunhuber Trust Under Will (Prunhuber Trust) filed their Complaint on June 3, 2016, naming as defendants Richard Allen, Laura Allen, and Chester Delaney, individually and in their representative capacity as members and officers and a former officer of the purported unincorporated association of land owners known as the Prospect Heights Proprietors, and as officers and a former officer of Prospect Heights Proprietors. 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. 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 was filed on March 30, 2018. The Defendants' Opposition was filed on May 1, 2018. The court heard the cross-motions for summary judgment on June 7, 2018. Subsequently at a telephone conference call on July 13, 2018, the cross-motions for summary judgment were taken under advisement with respect to certain issues, and 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 court took a view on November 28, 2018. Trial was held on January 8-9, and March 11-12, 2019. 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. In a Decision of even date, the court has made findings of facts and rulings of law.
In accordance with the Summary Judgment Order of July 31, 2018, and the Decision issued today, it is
ORDERED, ADJUDGED and DECLARED that the Prospect Heights Proprietors constitute an unincorporated association and are validly constituted and are authorized to act pursuant to G.L. c. 84, ยงยง12-14, with respect to all ways shown on the following plans, as well as any portion of Lakeside Drive leading to Prospect Lake Road in Egremont that is not shown on said plans:
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 Southern Berkshire County Registry of Deeds (registry) in Plan Book 2, Page 120, on July 10, 1957 (the 1957 plan);
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, 1958" recorded with the registry in Map Book 2, Page 154, on May 31, 1960 (the 1960 plan); and
c. "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);
d. "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). The 1957, 1960, 1965, and 1967 Plans (collectively the Plans) are attached as Exhibits A, B, C, and D respectively. It is further
ORDERED, ADJUDGED and DECLARED that the Prospect Heights Proprietors have trespassed and continue to trespass upon the property owned by the Prunhuber Trust by a deed from Lynn S. Prunhuber as Executrix of the Estate of Lauren F. Prunhuber, dated July 9, 2009, and recorded with the registry at Book 1929, Page 190, and shown on the Plans as Lots 5, 7, and 9 (Prunhuber property), by the installation and continued operation of a culvert under Lakeside Drive as it abuts the Prunhuber property (culvert). It is further
ORDERED, ADJUDGED and DECLARED that the Prospect Heights Proprietors' operation of the culvert constitutes a nuisance upon the Prunhuber property. It is further
ORDERED, ADJUDGED and DECLARED that the Prospect Heights Proprietors shall cease their trespass and abate the nuisance by, within 90 days of the date of this judgment, either (a) installing a trench and rock-lined swale at the outlet of the culvert directing the flow of water from the culvert on a path within 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 Plans, or (b) regrade Lakeside Drive along the Prunhuber property so that water flows off Lakeside Drive in a sheet flow along the entire bound of the Prunhuber property. It is further
ORDERED and ADJUDGED that the counterclaims are DISMISSED with prejudice.
So Ordered.
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