Teh One Who Knocks
11-15-2012, 11:33 AM
By PERRY BACKUS - Ravalli Republic
HAMILTON – In a real life case of buyer beware, a Ravalli County district judge has ruled that a couple who bought a house along the 18th hole of a Hamilton course should have known their yard might be littered with golf balls.
Robert and Katherine Brady sued the Hamilton Golf Club and Ravalli County in 2011 alleging trespass, nuisance and breach of duty after discovering that close to 1,300 golf balls landed on their yard during the course of a season.
But District Judge James Haynes believes that shouldn’t have come as a surprise to the former general contractor and former real estate agent, both of whom are former golfers.
“Each of these persons knew or easily should have seen the mis-location of the footprint of the Bradys’ home before they purchased the home next to the 18th fairway,” Haynes ruled. “Mr. and Mrs. Brady had – and failed to fulfill – their independent duty to see what was plainly apparent before purchasing this piece of real estate.”
Haynes said both parties agreed in court proceedings that golf balls had been raining down on the property since the 18th hole was opened in 1979.
At that time, the property was a sheep pasture owned by Willard Bullock. He apparently reacted angrily when people tried to cross the fence to retrieve the errant balls and went as far as to put up both electrified and concertina wire to keep golfers out.
But Bullock apparently didn’t mind the fact that the balls came his way. People testified that either he or his children collected the balls and sold them back over the fence to golfers.
When the property was sold and subdivided, the county didn’t require the developer to take measures to stop the golf balls from coming onto the property.
The home the Bradys purchased was a spec house that was ultimately sold to them after the bank had taken possession of it. It had never been occupied until the Bradys moved in, said court records.
The Bradys built a 6-foot-tall cedar fence and then topped it with a 14-foot-high net in an attempt to keep the balls at bay.
In their lawsuit, the Bradys contended that it wasn’t necessary for them to prove that golfers intended to hit balls aimed at their property. Instead, they said the case centered on the golf course knowing, with “substantial certainty,” that golf balls would land on the Brady property with the configuration of the 18th hole.
The golf course focused its position on the individual golfer.
It said no golfer would intentionally hit a ball onto the Bradys’ property because they would suffer a two-stroke penalty, which would cause “strife and self-loathing” to the golfer.
Haynes ruled the golf course had a prescriptive easement to the property since balls had been landing there for more than five years without a challenge.
Haynes dismissed the Bradys’ nuisance claim and denied their motion for a partial summary judgment on the trespass issue. He granted the golf course’s motion for summary judgment on the issues of lack of trespass and existence of a prescriptive easement.
“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,” Haynes wrote. “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 HGC’s 18th tee, rough, and hole commit no trespass when errant golf balls enter into Brady’s property.”
HAMILTON – In a real life case of buyer beware, a Ravalli County district judge has ruled that a couple who bought a house along the 18th hole of a Hamilton course should have known their yard might be littered with golf balls.
Robert and Katherine Brady sued the Hamilton Golf Club and Ravalli County in 2011 alleging trespass, nuisance and breach of duty after discovering that close to 1,300 golf balls landed on their yard during the course of a season.
But District Judge James Haynes believes that shouldn’t have come as a surprise to the former general contractor and former real estate agent, both of whom are former golfers.
“Each of these persons knew or easily should have seen the mis-location of the footprint of the Bradys’ home before they purchased the home next to the 18th fairway,” Haynes ruled. “Mr. and Mrs. Brady had – and failed to fulfill – their independent duty to see what was plainly apparent before purchasing this piece of real estate.”
Haynes said both parties agreed in court proceedings that golf balls had been raining down on the property since the 18th hole was opened in 1979.
At that time, the property was a sheep pasture owned by Willard Bullock. He apparently reacted angrily when people tried to cross the fence to retrieve the errant balls and went as far as to put up both electrified and concertina wire to keep golfers out.
But Bullock apparently didn’t mind the fact that the balls came his way. People testified that either he or his children collected the balls and sold them back over the fence to golfers.
When the property was sold and subdivided, the county didn’t require the developer to take measures to stop the golf balls from coming onto the property.
The home the Bradys purchased was a spec house that was ultimately sold to them after the bank had taken possession of it. It had never been occupied until the Bradys moved in, said court records.
The Bradys built a 6-foot-tall cedar fence and then topped it with a 14-foot-high net in an attempt to keep the balls at bay.
In their lawsuit, the Bradys contended that it wasn’t necessary for them to prove that golfers intended to hit balls aimed at their property. Instead, they said the case centered on the golf course knowing, with “substantial certainty,” that golf balls would land on the Brady property with the configuration of the 18th hole.
The golf course focused its position on the individual golfer.
It said no golfer would intentionally hit a ball onto the Bradys’ property because they would suffer a two-stroke penalty, which would cause “strife and self-loathing” to the golfer.
Haynes ruled the golf course had a prescriptive easement to the property since balls had been landing there for more than five years without a challenge.
Haynes dismissed the Bradys’ nuisance claim and denied their motion for a partial summary judgment on the trespass issue. He granted the golf course’s motion for summary judgment on the issues of lack of trespass and existence of a prescriptive easement.
“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,” Haynes wrote. “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 HGC’s 18th tee, rough, and hole commit no trespass when errant golf balls enter into Brady’s property.”