The Boston Globe July 23,2005 By Ralph Ranalli

(notice the head line says errant golf balls, not errant golf shots, or way would golf shots but errant golf balls!)


Over the last seven summers, Joyce Amaralís house in Rehoboth has been deluged by a monsoon of Titleists and Top-Flites from adjacent Middlebrook Country Club.

Balls sliced and hooked by duffers have damaged her windows and screens, dented her motherís car, and made her deck too dangerous for daytime use, she said in a civil lawsuit against the golf course. One ball hit her house with such force that is set off her burglar alarm, according to the suit.

Yesterday, the state Appeals Court ruled that Amaral was entitled to some relief.

Holding that each golf ball was, in effect, an individual trespasser on her property, the appellate court overturned a Superior Court judgeís ruling that Amaral and a neighbor, Carol Pray, should have anticipated the potential nuisance that the course represented when they bought new houses near the ninth hole in the late 1990s.

In a 15-page ruling made public yesterday, the Appeals Court ruled that flying golf balls could not be considered a mere nuisance like the odor from a dump or the roar of an airport runway.

"Though no person has yet been struck by a golf ball on Amaralís property, the fear of being struck has a significant effect on Amaralís use and enjoyment of her yard," the court said, pointing out that Amaral has to restrict her sonís use of the yard and that she contracts with a landscaping company whose workers wear hard hats in her yard.

The three-judge panel ordered that the case be returned to the Superior Court for an injunction barring further intrusion by the golf balls on Amaral and Prayís properties. Middlebrookís owners, Peter and Lucretia Cuppels, must now decide whether to appeal the case to the Supreme Judicial Court or come up with a solution. 

"They havenít decided what theyíre going to do yet," said their lawyer, Michael F. Drywa Jr.

Middlebrook is a small, inexpensive, and well-kept nine-hole public course once named "Best Course for Seniors" by an online publication in nearby Rhode Island. The course, with stone walls and flowers near each tee, is host to approximately 40,000 rounds of golf each year.

"It is a very, very nice golf course, and the owners are terrific," said Robert Botelho, a 68-year-old Providence resident who has played in a Friday evening league at Middlebrook for two decades.

The dispute began in the 1990s, when a developer built a housing subdivision, Columbine Estates, on land abutting the course.

Designed in the 1940s, the clubís holes play counterclockwise, meaning that, because the vast majority of golfers are right-handed and most errant shots are sliced, many bad shots head away from the course.

In recent years, golf architects have leaned toward designing courses that play clockwise, meaning that most errant shots would be directed back toward the course, said Preston W. Halperin, Amaralís lawyer.

Prayís house, which is much closer to the tee, has been hit by fewer balls than Amaralís, but that didnít stop one from hitting her husband once while he was working on their roof, the lawyer said.

Amaralís property is directly in the line of fire, he said, located at the fairwayís midpoint on the 290-yard par-4 ninth hole. At trial last year, Amaral showed the judge approximately 1,800 golf balls that had landed in her yard over the years, he said.

"She [Amaral] is going to be ecstatic about this ruling," Halperin said. "She has really borne the brunt of this."

Botelho reluctantly agreed. Although he has avoided encroaching on Amaralís property by using an iron off the tee for better control and aiming to the left, he said, about 20 percent of the golfers in his league have hit her property at one time or another, Botelho estimated.

"Itís a pretty easy thing to do from that tee," he said. "I could see if I lived there how it could be a complaint. But then again, you know that when you buy the house, donít you?"

The same logic, that Amaral and Pray should have anticipated the problem, was used by the Cuppels when they argued their cae before Superior Court Judge Robert J. Kane.

Kane agreed, citing the stateís law on nuisances, which allow judges to take into account which party was there first. The Appeals Court, however, ruled that the case hinged instead on trespassing law, which weighs heavily in favor of the party whose land is being encroached upon.

According to the lawyers and court papers, the sides tried to unsuccessfully to resolve their differences out of court.

Drywa said that the sides had an agreement at one point to jointly install a 60-foot-high net, but that the abutters backed out for aesthetic reasons.

Halperin, however, said that a golf architect hired by the neighbors predicted that many balls would fly right over the net and that they were reluctant to "install an unsightly fence that didnít work."

The Cuppels, meanwhile, rejected a suggestion by the neighbors that the ninth hole be shortened into a par-3, so that balls wouldnít reach Amaralís home. Doing so, they argued, would lower the course to a par-34 overall and put in a no manís land, between a true nine-hole course and what are commonly referred to as executive courses, which are favored by beginners and less-serious golfers.

"At 35, it is still a nine-hole course," Botelho said. "I would hate to see that taken away."

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