Errant Tee Shots a Trespass to Homeowners

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Joyce Amaral knew before buying property in Columbine Estates that her home was near the ninth hole of a golf course.
 
But Amaral, a regular golfer, wasn't prepared for the number of errant golf balls that came flying into her yard - more than 1,800 in five years - or the number of golfers who came along afterward to retrieve them.
 
So she and a neighbor filed a lawsuit against the owners of Rehoboth's Middlebrook Country Club.
 
On Friday, the state Appeals Court found the wayward balls constitute a 'continuing trespass' and ordered the Superior Court to find a solution.
 
During the 2003 trial, Amaral arrived at court with six plastic buckets, each containing approximately 300 golf balls, to illustrate how many landed in her yard. She said she gave many others away and had even used some to play golf herself.
 
She said damage from the stray balls included one broken window, five broken screens and a dent in her mother's car.
 
Although no one was hurt, Amaral testified that the fear of being hit by a golf ball had diminished her enjoyment of her yard.
 
She restricted her son's outside play to an area on the side of the house, away from the ninth tee. The family avoided using the rear deck and had her landscapers wear hard hats.
 
Amaral's neighbor, Carol Pray, said stray balls regularly landed in her swimming pool, forcing her to limit her children's time in the pool. She said a ball once struck her husband while he was on the roof of their home.
 
Superior Court Judge Robert J. Kane dismissed the lawsuit, ruling the homeowners had not shown that operation of the golf course constituted a nuisance, which is defined by state law as an interference in the use and enjoyment of their land.
 
But the Appeals Court said the homeowners had shown that the stray balls were a 'trespass,' and thus an invasion of their land.
 
'It all really comes down to volume,' said Preston W. Halperin, a lawyer for Amaral and Pray.
 
'We acknowledged that an occasional ball coming off of a golf course onto a neighboring property is going to happen,' he said. 'But this is not a situation where it is an occasional ball. We're talking about hundreds of balls to the point where she couldn't sit in her backyard.'
 
But Michael F. Drywa Jr., who represented golf course owners Peter and Lucretia Cuppels, said they paid for numerous alterations to the golf course to try and alleviate the problem, including relocating the tee, installing signs instructing golfers to 'aim left,' and planting trees alongside the fairway.
 
Drywa said they also offered to install a 60-foot net, but one homeowner balked at the proposal because support columns for the netting would have obstructed her view of the golf course.
 
'You buy a house next to a golf course and you're a golfer who has golfed that golf course, I have to think you have some awareness of the risk that golf balls are occasionally going to land on your property and sometimes hit your house,' Drywa said.
 
He said the Cuppels hadn't decided yet whether they will appeal.