A Golf Course Can Be A Nuisance

[Wayne_Kozun]

   Wayne:  As far as a road that is built next to an existing golf course, I would think the liability is with the builder of the road - presumably a county or state, not the golf course.  After all, the government could have condemned the course's property and removed the hazard.

I am not sure what the exact history is but the road is actually through the golf course.  Perhaps the club granted the city a right of way or the city expropriated the land from the club.


There actually was a significant court case between the City of Scarborough and the Scarboro Golf and Country Club regarding riparian rights.  It is now one of the most cited cases on riparian rights in Canada.  The outcome is that the city is responsible to pay for erosion on the golf course in perpetuity as the urbanization of the city of Scarborough (now part of the City of Toronto) led to the construction of storm sewers that fed water into the creek that runs through the course.  The creek is now much wider and every few years there is major flooding and erosion that damages the course.  So when you do something to a river/creek that affects people downstream of you then you are liable for damages.

[Tim_Weiman]

Not to digress and hijack this thread, but golf courses are not the businesses facing the issue being discussed here.


I was the manager of an oil terminal on farm land that was purchased by John D Rockefeller back in the 1870s. Amazingly, Standard Oil's property records had the documentation - deed and contract signed by John D himself.


Rockefeller obviously thought it was the right place to build a terminal - isolated on farm land with nothing else around. But, that was the 1870s. By the time I became terminal manager in the 1980s, homes didn't just surround the terminal, they were dangerously close. More than that one neighbor insisted on lighting fires for a cook out 20-30 feet from the terminal vapor recovery unit.


A spark flying the wrong way wouldn't just kill him, it could burn down the neighborhood.


When we suggested it might be better to have the fire on the other side of his house, the neighbor was quite indignant we were infringing on his rights.


We could shut down the terminal for all he cared.


Nothing ever happened. The terminal and the houses are still there. Don't know about the cookouts.

[Jon Wiggett]

There is no right to roam across a private garden in Scotland.

[Niall C]

For all those that don't seem to accept that a property owner has the right to peaceful enjoyment of their own property, let me ask you this, what if the house was there first and the golf course came along after ? What if the house owner was in the habit of simply throwing his rubbish over the fence into the golf course property. Imagine if you will the greenkeeper having to clear debris from the green every morning after the house owner has had a party.


Do you really think the golf course would have to put up with that just because the house was there first ?


Niall

[Jon Wiggett]

Niall,

I know what you mean but that would be littering. If the course were built after the house then there would need to be enough distance allowed which would be at least 75 yards from the center of the fairway. Therefor logic should require the same in the opposite case but it rarely does.

Jon

[Jon Cavalier]

For all those that don't seem to accept that a property owner has the right to peaceful enjoyment of their own property, let me ask you this, what if the house was there first and the golf course came along after ? What if the house owner was in the habit of simply throwing his rubbish over the fence into the golf course property. Imagine if you will the greenkeeper having to clear debris from the green every morning after the house owner has had a party.


Do you really think the golf course would have to put up with that just because the house was there first ?


Niall

No, but more aptly, if the homeowner was there first and had on his property a number of beehives kept for honey, and the owner of the course knew about the beehives going in and built the course abutting his property and the hives, I would expect the golf course to have to put up with the occasional bother from those bees.

[Ian Andrew]

Sean,

There are lots of examples in Toronto alone, most involve driving ranges, but many others are boundary holes
I've given you the one that changes the legal landscape for us already

Many don't proceed because people understand that their proximity does include a small element of risk.
They expect golf balls to occasionally come into their property
If they didn't, course would be encircled with netting structures

The problem lies in the fact all these courses are landlocked by housing and roads
And technology has taken them from safe in the 1990's to unsafe with the advancements in technology over of the last 25 years

Every Master Plan I work on for a city course now has to address some sort of boundary issues
It's removed a lot of the fun of this work because we then also assume the liability of the hole

In many ways, I think golfers have no idea of the legal issues architects must bear

[Sean_A]

Ian


It is my understanding (and my contention all along) that we are not talking about occasional balls flying over the boundary.  Someone said 60+ balls were collected in a month or something like that.  I could understand 60+ balls in maybe 3-4 years, but not during a summer.  To me, if true, this kind of activity is a clear pattern of abuse and if I were a judge the club would be dead in my sites for a serious hand slapping if anybody were to be injured. 


I never advocated zero tolerance for this sort of thing, but I do think golfers have such a poor reputation as fat cats who care little about their neighbours and the environment that clubs should be going put of their way to mitigate these sorts of situations in a way in which clubs are seen to make the compromises.  A little bit of good will could stand clubs in good sted when tough times come. 


Ciao

[Niall C]

Ian


I recently made comment on here on the possible safety issues for a blind hole or semi-blind hole and whether the gca had good PI cover and the architect took exception to my comments. Partly they were in jest but partly making a serious point about safety issues and the liability of the architect. Not sure if the architect took umbrage at the suggestion that his design was unsafe or that he was liable but I was happy to delete the offending post in order to keep the peace.


Nevertheless the issue remains and whether it's the club or the architect who is on the line, there is no denying that an awful lot of clubs have had to address the problem of safety and are continuing to address it. As you say, at many older clubs the course was built in the countryside but since then they have been built round. Just thinking about it, 4 of the 5 clubs I've been a member of have had to redesign a hole due to boundary issues. Given the majority of courses in this country (Scotland) are probably in urban or edge of urban areas, I suspect that 4 out of 5 might not be too far away from a representative sample of clubs who have been forced in to making changes due to boundary issues.


Niall

[Jim_Coleman]

   Niall:  Here's some unsolicited advice.  Whenever you say or write something that is "in jest, but partly making a serious point," you will always be taken seriously, even if what you say happens to be funny.

[J Sadowsky]

Whatever happened to the doctrine of "coming to the nuisance"? This is like building a house next to a pig farm and then complaining that it always smells like shit.

I can see the homeowners possibly ultimately prevailing against the seller of the land/property (maybe - it's a matter of notice, but it's not like Quaker Ridge is hidden - I'd love to know if the marketing materials they saw or the sales pitch they heard trumpeted the fact that the house was on the course), but unless New York has some weird nuisance laws, I'd guess the club is neither liable for damages or permanently enjoined.

It's also interesting that there was previously a large screen that, by plaintiff's admission, prevented the balls from entering the property (which was knocked down in a storm in 2008), and that all efforts to replace the screen have been thwarted by the township/homeowners association. If that's true, I'd expect the ultimate result to be an order to replace the screen as it was, and a nominal award for the player trespassing.

The irony here is that if Quaker Ridge were to simply throw its hands up and sell to a developers a golf course, expect balls in your yard.

*Not legal advice*

The problem here is that, absent adverse possession, nobody has a right to physically enter the property (or place tangible items there).  From a legal standpoint, the fact that people have historically tresspassed upon another's land with persons (or golf balls) does not give them or others a legal right to do so in the future.  Whether the golf course should be responsible for the conduct of its members is a separate question which, in this case, has been answered.

Smells and air pollution are far less likely to be considered a tresspass due to its physical nature.  Solid and liquid pollutants are another thing - good luck arguing you can continue dumping your pig poop on the neighbor's land because that's what you did before he bought the land.


EDIT:  One point - a single sliced golf ball probably wouldn't be considered a trespass since trespass requires a particular state of mind (called "willfulness").  But if the course was aware that 60 balls were going over the property line on a monthly basis, and did nothing about it, that certainly is sufficient to show that the golf club had the requisite state of mind.  If I was defending the Course, and without looking up any caselaw to see if this argument would fly, I would have argued that the club's state of mind is irrelevant because the club isn't the one trespassing.  But I think the counterargument is that the club is telling people to take a golf ball and hit it in a particular direction with the knowledge that some balls will interfere with the homeowner's property rights.  That is probably a trespass under state law.

[J Sadowsky]

For all those that don't seem to accept that a property owner has the right to peaceful enjoyment of their own property, let me ask you this, what if the house was there first and the golf course came along after ? What if the house owner was in the habit of simply throwing his rubbish over the fence into the golf course property. Imagine if you will the greenkeeper having to clear debris from the green every morning after the house owner has had a party.


Do you really think the golf course would have to put up with that just because the house was there first ?


Niall

No, but more aptly, if the homeowner was there first and had on his property a number of beehives kept for honey, and the owner of the course knew about the beehives going in and built the course abutting his property and the hives, I would expect the golf course to have to put up with the occasional bother from those bees.

Wild bees can't be a trespass, but if his negligent care of the bees led to injury, those injured (including at least a for-profit golf course, if lost revenue can be traced to the negligence under a theory the law calls "proximate cause") by the negligence can bring a tort claim against the honeymaker.

[J Sadowsky]

Niall,

I know what you mean but that would be littering. If the course were built after the house then there would need to be enough distance allowed which would be at least 75 yards from the center of the fairway. Therefor logic should require the same in the opposite case but it rarely does.

Jon

Average GCAer:  But 75 yards from the center of the fairway should still be fairway!

(I kid, I kid.)

[Niall C]

For all those that don't seem to accept that a property owner has the right to peaceful enjoyment of their own property, let me ask you this, what if the house was there first and the golf course came along after ? What if the house owner was in the habit of simply throwing his rubbish over the fence into the golf course property. Imagine if you will the greenkeeper having to clear debris from the green every morning after the house owner has had a party.


Do you really think the golf course would have to put up with that just because the house was there first ?


Niall

No, but more aptly, if the homeowner was there first and had on his property a number of beehives kept for honey, and the owner of the course knew about the beehives going in and built the course abutting his property and the hives, I would expect the golf course to have to put up with the occasional bother from those bees.

Jon


With respect but I really don't see how your analogy is more apt. You can't really control bees unless you contain them, however where the club knows that a percentage of golfers playing a certain hole will land their ball in a neighbouring property then it is clearly within their power to do something about that and that is to either make changes to the hole or stop playing the hole, such that the nuisance of balls landing in the neighbouring property is stopped.


Niall

[Jon Cavalier]

Niall:

You can't control bees unless you contain them or move them, just as you can't control golfers errant tee shots unless you contain them (via net or other barricade) or move them (by altering the hole). In each instance, a pre-existing condition was open and obvious at the time the later-arriving neighbor bought and began making use of his property. I don't see why, so long as the pre-existing condition did not increase substantially in frequency or danger subsequent to the later neighbors' arrival, the neighbor should not have to live with the burden (and accompanying benefit) that was present and known to him at the time he arrived.

Note - as I stated above, I consider the errant tee shots into the property to be entirely separate from the trespass that occurs when players attempt to retrieve their balls from the neighbor's property. That absolutely should be actionable by the property owner and I have no problem with the individuals (and potentially the club if it was aware of the issue and took no steps to curtail it) being held liable for it.

Just my two cents.

[Steve_ Shaffer]

Jon and others,


This was not a pre-existing house that was purchased by the Behars.  It was constructed by a developer who purchased the acreage and subdivided the land and built new housing.
Th

[Chris DeNigris]

Steve-

Did the homeowner know there was a golf course adjoining his property when he purchased it?

[Steve_ Shaffer]

Chris,

Not sure. It's not mentioned in this article:

http://scarsdale10583.com/about-joomla/the-community/4098-nys-supreme-court-reverses-lower-court-decision-regarding-leon-behar-and-quaker-ridge-golf-club

[Pat Burke]

I've bought two house near golf courses.  Both of them no where near
an area of golf ball impact (behind tees and far offset).
A player would have to turn around and aim at my house (and be pretty good) to hit it.
I chose the location in order to NOT have this impact.
I also had to sign a disclosure on closing the house that golf balls could intrude on our property.


Had I made the choice to live on the fairway, it would have been my responsibility to protect
my family and home.  SOmehow, in this day and age, the same decision now creates an
entitlement that someone else has to fix the mistake we are responsible for.

[Steve_ Shaffer]

It should be noted that the Behars attorney was successful in this case against Winged Foot:


http://www.nytimes.com/2008/10/15/nyregion/15golf.html?_r=0

[Wayne_Kozun]

Looking at the hole in question on Google Maps it looks like there is vacant space behind the green that looks like a pile of dirt, at least from overhead, and then a turf nursery.  Wouldn't it be possible to move the green back 50 yards or so and move the tee up as well.  That would put the homes out of play and keep the hole paying pretty much the same, unless there are topographical changes that you cannot tell from an aerial photo.


https://www.google.ca/maps/place/8+Brittany+Cl,+Scarsdale,+NY+10583,+USA/@40.9709844,-73.7593425,507m/data=!3m1!1e3!4m2!3m1!1s0x89c293dac5b3356f:0xc5f85201701d02f

[Steve_ Shaffer]

Wayne,


Seems like a solution to me. I'm sure the club can afford it and their lawyers and insurance company wouldn't mind; however the case would remain open on the claim for damages if ever a hearing on that matter can be scheduled. .

[Niall C]

Niall:

You can't control bees unless you contain them or move them, just as you can't control golfers errant tee shots unless you contain them (via net or other barricade) or move them (by altering the hole). In each instance, a pre-existing condition was open and obvious at the time the later-arriving neighbor bought and began making use of his property. I don't see why, so long as the pre-existing condition did not increase substantially in frequency or danger subsequent to the later neighbors' arrival, the neighbor should not have to live with the burden (and accompanying benefit) that was present and known to him at the time he arrived.

Note - as I stated above, I consider the errant tee shots into the property to be entirely separate from the trespass that occurs when players attempt to retrieve their balls from the neighbor's property. That absolutely should be actionable by the property owner and I have no problem with the individuals (and potentially the club if it was aware of the issue and took no steps to curtail it) being held liable for it.

Just my two cents.

Jon


I'm amazed at you and others who think you have the right to invade and effectively use someone elses property just because you owned your property before they did, or use of their property ie. landing golf balls in it, predates them building a house on it. Tell me, how do you acquire such property rights, that you can effectively invade and use a neighbours property without their consent ? Is that the law in the US ?, because I can assure you it's not the law in Scotland thankfully.


Also, what's so different about going to collect a ball in a neighbours property and hitting it into it. It's still invading their property.


Niall

[Jeff_Brauer]

Just the differences of opinion here show why these types of lawsuits happen and will continue.

[Sean_A]

I agree Jeff even though I do find it barmy that folks think it is okay for golfers to bomb a property because the course was there first.  Sure, I wouldn't buy a property right on a course because I know how barmy golfers are...


Ciao