|photo credit: intelligencer.ca|
A Canadian newspaper is reporting that NHL player Matt Cooke, a left wing for the Pittsburgh Penguins, is one of the plaintiffs in an action filed against the Bayview Golf Centre in Ontario. The plaintiffs contend that "thousands" golf balls from the range are winding up on their property and in their yards.
Similar claims by landowners adjoining golf facilities are relatively common. Most often such cases are pursued under as a "private nuisance." Under Anglo-American law, a private nuisance is loosely defined as the unreasonable, unwarranted, or unlawful use of one's property in a manner that substantially interferes with the enjoyment or use of another individual's property, without an actual trespass or physical invasion to the land. Basically, the tort of nuisance is an amorphous concept designed to be a catch-all for disputes between neighbors that do not involve a trespass.
Contrary to the commonly held belief, simply because a use on one tract predates the use on an adjoining tract, does not mean that prior use controls. For example, simply because a factory existed on a lot before a housing development was built on an adjacent lot, it does not mean the factory cannot commit the tort of nuisance vis-a-vis the homeowners. Rather, which use existed first is merely a factor a court will consider. Other factors include the frequency, intensity, and duration of the interference. The more often, intense and repetitive the interference, the more likely it is a court will deem such interference a nuisance.
In the instant case, the fact that golf balls ended up in the neighbors yard almost repeatedly clearly was a factor in convincing a judge to close the range. The owners shuttered the facility earlier this month pursuant to a court order.
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