I typically don't have much sympathy for homeowners who choose where to live without assuming the risks of their choices. The taxpayers of this country pay massive amounts of money to subsidize property owners who choose to locate in hazardous areas (flood and fire prone). It is a problem with our society that when something bad happens, it has to be somebody else's fault. Assumption of risk? How quaint.
Lou
Is this not going against your usual reasoning that a property owner should be able to do whatever they wish with their property which in this case would be the homeowner enjoying his backyard without being hit by golf balls ? And IIRC do you not also argue that where a property owner is restricted in what they can do with their property because of lack of planning (zoning) that they should be compensated. Would the same principle not apply in this case in that the party preventing the owner from having peaceful enjoyment of his property should compensate the homeowner ?
Niall
Boy, Niall, either you're just poking me or have a very poor understanding of my "usual reasoning". Let's deal with your recollections on the latter first which are probably mostly based on the Coul Links fiasco.
Yes, it is my position that if an owner's pre-existing rights are affected by a subsequent zoning or planning decision, he should be compensated for the resulting diminution of his value. In the Coul Links case, a public body deemed part of the farmer's land to have "special scientific interest" and, as a result of this new designation, the owner was greatly limited on how he could enjoy his property, i.e. lowering its value. Had the owner acquired the property post the SSSI designation, that limitation should have been priced into the acquisition- i.e. he should have known what he was purchasing- and, in Duranland, he would not have suffered a loss or be due compensation.
Absent zoning and planning, a site's value is largely based on the current use and the likely, but not guaranteed value when the planning process takes place. I've helped take agricultural land through planning and zoning at a price reflecting the desired zoning, but it has always been contingent on obtaining zoning approval. The few large tracts of un-zoned raw land that I've brokered were generally at a price that rewarded the buyer for assuming the risk. I've known a number of land investors who are particularly skilled at achieving higher density zoning ("entitlements") and they have typically made a killing over time.
Re: the MA case, as others noted, there are likely facts we are unaware of. We know that the golf course was there well before the house was built. It is unclear if the hole was changed subsequent to the purchase which aggravated the nuisance. If not, and the occurrence of errant shots hadn't all of a sudden skyrocketed, as a member of the jury, I'd likely come down on the side of the club owners. If the house was built within code and with proper setbacks, the judge might have ordered some mediation pre-trial to see if the club and the homeowners could come up with a reasonable solution to minimize the problem.
I have never implied that a property owner has absolute rights to the use of his property without regard to the rights of other property owners nearby or affected parties. Most situations have reasonable solutions if not reasonable conflicting parties. Coul Links, for example, would have had minimal impact on the SSSI and some accommodations might have been made had the decision been made on facts and not politics. I do understand that for some, a square foot of impact is more than could be tolerated.