Daily Development for Tuesday, January 31, 2006
by: Patrick A. Randolph, Jr.
Elmer F. Pierson Professor of Law
UMKC School of Law
Of Counsel: Blackwell Sanders Peper Martin
Kansas City, Missouri

TRESPASS; GOLF COURSES:  Recurrent entry of golf balls onto Homeowners’ property constitutes a continuing trespass. 

Amaral v. Cuppels, 831 N.E.2d 915 (Mass. App. Ct. 2005). 

Homeowners filed suit against owners and operators of the Middlebrook Country Club (the “Golf Course”).  Shortly after moving into new homes adjacent to the ninth hole of the Golf Course, the Homeowners discovered that golf balls from the Golf Course were hit onto their property at a frequent and alarming rate.  Unable to resolve the issue with the Golf Course Operators, the Homeowners sought injunctive relief and damages in the Superior Court. 

The Superior Court denied relief and dismissed the complaint, finding that the facts did not support a nuisance claim.  The Homeowners appealed and the Appeals Court granted them injunctive relief, finding that the recurrent entry of golf balls onto the Homeowners’ property constitutes a continuing trespass.  Analogizing the facts to those in Hennessy v. Boston, 164 N.E. 470 (involving persistent landing of baseballs from neighboring baseball field onto plaintiff’s property) and Fenton v. Quaboag Country Club, Inc., 233 N.E.2d 216 (involving an annual average of 250 errant golf balls from neighboring country club landing on plaintiff’s property), the Appeals Court found that the regular and frequent non-permissive propulsion of physical objects onto an adjacent property constitutes a continuing trespass. 

The Appeals Court rejected the Golf Course Operators’ defense that the Homeowners knew of the risk of errant golf balls prior to purchasing their homes, finding that while the notion barring nuisance claims based on a  “coming to a nuisance” defense is well accepted, there is no similar notion of “coming to a trespass.” 

In order to prevent future instances of trespass, the Appeals Court held that the Golf Course Operators must either acquire the land onto which the golf balls are currently landing or acquire the right to use the land for that purpose.    

Comment 1: Can one establish a prescriptive right to conduct such a trespass?  In Massachusetts, the prescriptive period is twenty years, and the defendants didn’t quite make that period for operation of their golf course.  Further, the court noted that in the precedent golf course trespass case, where the course had operated for more than twenty years, there had been no discussion of prescriptive rights.  The court here says it reaches no conclusion on the point, but it strikes the editor that a prescriptive use could be created.  Certainly the activity meets all the requirements, unless one can argue that golf balls landing on vacant land are not an “open and notorious” use.

Comment 2: Some courts will characterize a continuing trespass as a nuisance, but of course it is a special kind of nuisance - one constituting a trespassory, rather than a non trespassory, invasion of use and enjoyment.  Lawyers frequently make the mistake of lumping trespasses and nuisances together.  Don’t do it.  A nuisance involves a balancing of two presumptively legitimate uses that just conflict with one another.  A trespass involves a non-legitimate invasion of the acknowledged possession of one owner’s rights by another party.  It doesn’t matter that the trespass is initiated from the invading party’s space - it is still an invasion of the plaintiff’s space. 

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