Kearns and Sons RS Aesthetics

Judge sides with Hamilton Golf Club in lawsuit over errant golf balls

By Michael Howell

In a complex and lengthy opinion and order, District Court Judge James Haynes filed a Summary Judgment in favor of the Hamilton Golf Club in a lawsuit filed by neighboring property owners Robert and Kathy Brady who alleged trespass, nuisance and breach of duty due to the rain of golf balls falling on their property, which borders the 18th hole on the Hamilton Golf Course.

The Bradys filed their lawsuit in December 2011, including a request for damages and a preliminary and permanent injunction to shut down or modify the use of the 18th hole “until such time as the risk of errant golf balls hitting the Brady property has been eliminated.” The request for a preliminary injunction was denied in March 2012, finding it unlikely that the Bradys would prevail at trial over the private nuisance claim “because they had moved into this longstanding ‘nuisance’.”

The court indicated that the Bradys might not win on the trespass charges because the defendants had presented a potentially viable defense in terms of possessing a “prescriptive easement.” This, in fact, is what the judge found in his summary judgment.

After a lengthy account of the history of the modern merger between law and equity courts, Judge Haynes listed a lengthy set of “undisputed facts in the case.” He concludes that the first element of trespass, “intent,” did occur. Although no single golfer intends to slice his ball and send it out of the course onto the neighboring property, he found it uncontested that the Club knows and has known for decades that numerous golf balls played on or around the 18th hole would end up on the adjoining property, which is enough to establish intent.

He also found, however, that conduct that would ordinarily constitute intentional trespass is not unlawful if it is “privileged conduct pursuant to an easement.” He found that the Club had established a prescriptive easement in using the property as a back-stop to catch errant golf balls. He found the club’s actions met the definition of an adverse easement since their actions were “open, notorious, exclusive, adverse, and uninterrupted for at least five years.” Haynes found that the Bradys should have been aware of the adverse claim when purchasing the property.

“Any prospective owner could neither be deceived nor conclude other than that HGC was using the property to catch or stop errant balls originating on the real property constituting the 
HGC golf course,” wrote Haynes. He found the club’s assertion of its easement to be continuous and uninterrupted since 1979. Haynes dismissed the Bradys’ claim that the use of the land was “permissive.” He noted the previous owner of the property had testified that he never gave anybody permission to hit their golf balls onto his place. Haynes also shot down the argument that the Bradys could obliterate the easement by putting up a net and stopping the activity, since the balls would still be falling on the Bradys’ property. He concluded that the effort would only serve to relocate the easement on the property not eliminate it.

After analysis, Haynes also dismisses the Hamilton Golf Club’s asserted defense of ‘equitable estoppel’ against the trespass claim. Basically the club argued that it had been lured through misrepresentation into constructing the 18th hole as it had. Haynes found the club did not succeed in establishing the six elements required for such a claim by clear and convincing evidence. Haynes did not find the Illinois Supreme Court reasoning in the case cited to be convincing.

Haynes also dismissed the Bradys’ nuisance charges against the club since they should obviously have been aware of the nuisance when they purchased the property.

The court also noted a document filed in 2006, prior to the purchase of the property by the Bradys in 2009, informing potential purchasers of the property of “risks associated with walking near the golf club.” Haynes also noted how long the nuisance activity had been endured with no complaint.

In conclusion, the judge notes that “nothing in this opinion addresses or affects the liability of any individual golfer who negligently or intentionally causes injury to persons or property as a result of striking a golf ball. Nor does this opinion grant any authority for persons to enter Bradys’ property to retrieve golf balls. This opinion simply holds that members and users of the Hamilton Golf Club’s 18th tee, fairway, rough, and hole commit no trespass when errant golf balls enter into the Bradys’ property.”

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