Kuklinska v. Maplewood Homes, Inc., supra at 493. See also McNamara v. Westview Bldg. Corp., 4 Mass. App. Ct. 670, 672 (1976); Kattor v. Sabatini, 4 Mass. App. Ct. 835 (1976); Howe v. DiPierro Mfg. Co., 1 Mass. App. Ct. 81, 84-85 (1973). We recognize that the courts of several other States have recently abandoned rigid approaches like our own in favor of a more flexible "reasonable use" doctrine.
The master's report indicates that there are no equitable considerations precluding relief. The water flow from the defendants' lot in an artificial channel onto the plaintiffs' property constitutes a continuing trespass which should be enjoined. See Miller v. Darby, 336 Mass. 243, 246-247 (1957); Chesarone v. Pinewood Builders, Inc., supra at 240; Kattor v. Sabatini, 4 Mass. App. Ct. 835 (1976) Accordingly, the matter is remanded to the Superior Court judge: (1) to issue an injunction requiring the defendants to rechannel the water; and (2) to determine whether injunctive relief should be given with respect to the retaining wall and the scope of such relief.
See also Kuklinska v. Maplewood Homes, Inc., 336 Mass. 489, 493-494 (1957); 5 Powell, Real Property pars. 730-731 (Rohan rev. ed. 1977). Kattor v. Sabatini, 4 Mass. App. Ct. 835 (1976), is inapposite since in that case there was a definite finding that the defendant's artificial channel caused an increased flow of water onto the plaintiff's land, and there was no indication, as here, that a situation existed which would not warrant injunctive relief.Judgment affirmed.
Canavan Manning, Inc. v. Freedman, 353 Mass. 762 (1968). While a different rule applies where an owner discharges the water on his neighbor's land by a definite artificial channel (see Kattor v. Sabatini, 4 Mass. App. Ct. 835) or where he artificially retains the water in such a way that it is deflected upon other land, there is no finding in the present case of any such artificial channelling or retention by the individual defendants. See Maddock v. Springfield, 281 Mass. 103, 104-105 (1932); Deyo v. Athol Housing Authy. 335 Mass. 459, 462-463 (1957). Contrast Miller v. Darby, 336 Mass. 243, 246-247 (1957).
The complaint does not allege any affirmative act on the part of the Sandjajas that has caused or contributed to the alleged flow of water. Compare Kattor v. Sabatini, 4 Mass. App. Ct. 835, 836 (1976) (defendants liable for trespass after constructing drainage system that channeled water onto plaintiffs land). The Sandjajas' liability with respect to the water runoff may be pursued under a theory of private nuisance based on alleged "unreasonable use" of their property, as discussed above.