HARWICH — Errant golf balls from the Cranberry Valley Golf Course, a municipal facility, are causing a disturbance in one adjacent neighborhood. Apparently a hook or a slice that lands a ball on private property can be construed as trespassing.
Town Administrator Christopher Clark informed selectmen last week that the town has received a claim for damage on a residential property from golf balls hit from the municipal course. Attorney Benjamin Zehnder of LaTanzi, Spaulding and Landreth in Orleans, represents property owner Robert Lothrop, whose claim has been sent to MIIA Property and Casualty Group, the town's insurance carrier.
Clark said the attorney has provided Massachusetts case law stating golf balls going onto private property is considered a trespass. Clark said he takes exception with a statement in the attorney's letter claiming the town has done nothing to address the issue.
The letter from Zehnder states golf balls being hit from the municipal course are landing on his client's property and around his residence, and players enter his property to retrieve the balls.
“These activities significantly interfere with Mr. Lothrop's use and enjoyment of his home and yard and constitute an ongoing safety hazard,” Zehnder wrote. “The unauthorized landing of balls constitutes civil trespass as well as actionable nuisance, the remedies for which include monetary damages as well as equitable orders that the course layout be modified to prevent the trespass.”
The case law included with the letter is an state appeals court ruling in Amaral v. Cuppels, in which the judge overturned a Bristol Superior Court decision denying injunctive relief to the Middlebrook Country Club, a private course in Rehoboth. In that case, the plaintiff said golf balls were frequently coming onto her property, often followed by golfers hoping to retrieve them.
“Because the recurrent entry by golf balls onto the plaintiff''s properties constitutes a continuing trespass, we conclude that the trial judge erred in denying injunctive relief,” the ruling reads.
“The regular and frequent nonpermissive propulsion of physical objects onto an adjacent property constitutes a continuing trespass is adequately illustrated by Fenton, supra, and Hennessy, supra,” the opinion reads. The Hennessy case relates to baseballs landing on a property and addresses trespass as well as nuisance. The Fenton case was against the Quaboag Country Club, Inc.; the injunctive order endorsed by the court prohibited the propulsion of golf balls onto the plaintiff’s property.
Zehnder wrote that the property owner has attempted to bring the matter to the attention of the golf course management and to have the matter addressed publicly before selectmen, “all without any success or substantive response.”
“The town has taken actions to mitigate this,” Clark told selectmen. Leyland cypress trees were placed along the property line and tee pins at the sixth hole were repositioned in an effort to direct drives away from the property. Clark also said there is money to install cart paths for the course and are considering adding larger plantings along that stretch.
“We want to take every single step so people don't trespass into his yard,” Clark said.
Selectman Michael MacAskill emphasized the notice from the attorney was a demand, not a lawsuit. He said he got a call from the homeowner and “went to the house and viewed a bag of golf balls” and some photos. MacAskill also pointed out Clark had been to the house and viewed the same materials.
Selectmen discussed the possibility of placing a net along the abutter's property line, but Board of Selectmen Chair Julie Kavanagh pointed out the neighbors did not want one there. MacAskill responded that it's not up to the abutters to decide what happens at the golf course.
“One person who is an abutter doesn't take over the rights of other property owners,” Kavanagh responded.
Clark pointed out the netting could be placed on town property, but placing it just in front of Lothrop's property line would not likely resolve the entire problem. The board should decide what is palatable for all sides. More natural vegetation is also an option, he said.
“The neighbors don't want a net up because it obstructs the view of the course and that's why they have their house along the course,” Clark said.
Zehnder's letter concludes, “This correspondence constitutes a demand that the town take all steps necessary to prevent the landing of golf balls on Mr. Lothrop's property within 60 days…Should the town fail to do so, Mr. Lothrop will seek the appropriate relief in the Barnstable Superior Court.”
The town's insurance carrier has reached out to Zehnder seeking photographs and other documentation relating to the claim for damages.