TRESPASS; GOLF COURSES: Recurrent entry of golf balls onto Homeowners’ property constitutes a continuing trespass.

Lake Ashton Golfers take Notice and Take Head!!!

Daily Development for Tuesday, January 31, 2006
by: Patrick A. Randolph, Jr.
Elmer F. Pierson Professor of Law
UMKC School of Law
Of Counsel: Blackwell Sanders Peper Martin
Kansas City, Missouri

TRESPASS; GOLF COURSES:  Recurrent entry of golf balls onto Homeowners’ property constitutes a continuing trespass. 

Amaral v. Cuppels, 831 N.E.2d 915 (Mass. App. Ct. 2005). 
Homeowners filed suit against owners and operators of the Middlebrook Country Club (the “Golf Course”).  Shortly after moving into new homes adjacent to the ninth hole of the Golf Course, the Homeowners discovered that golf balls from the Golf Course were hit onto their property at a frequent and alarming rate.  Unable to resolve the issue with the Golf Course Operators, the Homeowners sought injunctive relief and damages in the Superior Court. 

The Superior Court denied relief and dismissed the complaint, finding that the facts did not support a nuisance claim.  The Homeowners appealed and the Appeals Court granted them injunctive relief, finding that the recurrent entry of golf balls onto the Homeowners’ property constitutes a continuing trespass.  Analogizing the facts to those in Hennessy v. Boston, 164 N.E. 470 (involving persistent landing of baseballs from neighboring baseball field onto plaintiff’s property) and Fenton v. Quaboag Country Club, Inc., 233 N.E.2d 216 (involving an annual average of 250 errant golf balls from neighboring country club landing on plaintiff’s property), the Appeals Court found that the regular and frequent non-permissive propulsion of physical objects onto an adjacent property constitutes a continuing trespass. 

The Appeals Court rejected the Golf Course Operators’ defense that the Homeowners knew of the risk of errant golf balls prior to purchasing their homes, finding that while the notion barring nuisance claims based on a  “coming to a nuisance” defense is well accepted, there is no similar notion of “coming to a trespass.” 

In order to prevent future instances of trespass, the Appeals Court held that the Golf Course Operators must either acquire the land onto which the golf balls are currently landing or acquire the right to use the land for that purpose.    

Comment 1: Can one establish a prescriptive right to conduct such a trespass?  In Massachusetts, the prescriptive period is twenty years, and the defendants didn’t quite make that period for operation of their golf course.  Further, the court noted that in the precedent golf course trespass case, where the course had operated for more than twenty years, there had been no discussion of prescriptive rights.  The court here says it reaches no conclusion on the point, but it strikes the editor that a prescriptive use could be created.  Certainly the activity meets all the requirements, unless one can argue that golf balls landing on vacant land are not an “open and notorious” use.

Comment 2: Some courts will characterize a continuing trespass as a nuisance, but of course it is a special kind of nuisance - one constituting a trespassory, rather than a non trespassory, invasion of use and enjoyment.  Lawyers frequently make the mistake of lumping trespasses and nuisances together.  Don’t do it.  A nuisance involves a balancing of two presumptively legitimate uses that just conflict with one another.  A trespass involves a non-legitimate invasion of the acknowledged possession of one owner’s rights by another party.  It doesn’t matter that the trespass is initiated from the invading party’s space - it is still an invasion of the plaintiff’s space. 

NOTE:  There is no viable "House on the Golf Course" defense.   You can't claim the owner was asking for it when he bought that beautiful house on the 12th fairway.  Also, the existence of property insurance is NEVER determinative in assessing liability.  You can’t even mention the existence of an insurance policy in court except as evidence to establish ownership.  There are no ifs and or buts about it, if you break someone’s window with your golf ball… run away like a child and deny it was you… I mean break out your checkbook and pony up.

LET'S SEE IF I'VE GOT THIS CORRECT - - -

LET'S SEE IF I'VE GOT THIS CORRECT - - -
RE: 3 American Hikers  In The NEWS
-------------------------------------------------------------------
IF YOU CROSS THE NORTH KOREAN BORDER
ILLEGALLY YOU GET 12 YEARS HARD LABOR.


IF YOU CROSS THE IRANIAN BORDER
ILLEGALLY YOU ARE DETAINED INDEFINITELY.

IF YOU CROSS THE AFGHAN BORDER
ILLEGALLY, YOU GET SHOT.

IF YOU CROSS THE SAUDI ARABIAN BORDER
ILLEGALLY YOU WILL BE JAILED.

IF YOU CROSS THE CHINESE BORDER
ILLEGALLY YOU MAY NEVER BE HEARD FROM AGAIN.

IF YOU CROSS THE VENEZUELAN BORDER ILLEGALLY YOU
WILL BE BRANDED A SPY AND YOUR FATE WILL BE SEALED.

IF YOU CROSS THE CUBAN BORDER ILLEGALLY
YOU WILL BE THROWN INTO POLITICAL PRISON TO ROT.

IF YOU CROSS THE U.S. BORDER ILLEGALLY YOU GET !
A JOB

A DRIVERS LICENSE

SOCIAL SECURITY CARD

WELFARE
FOOD STAMPS

CREDIT CARDS

SUBSIDIZED RENT OR A LOAN TO BUY A HOUSE

FREE EDUCATION

FREE HEALTH CARE

A LOBBYIST IN WASHINGTON

BILLIONS OF DOLLARS WORTH OF PUBLIC DOCUMENTS PRINTED IN YOUR LANGUAGE

THE RIGHT TO CARRY YOUR COUNTRY'S FLAG WHILE YOU PROTEST THAT YOU DON'T GET ENOUGH RESPECT

TRAFFIC SIGNS PRINTED IN YOUR LANGUAGE

YOUR VERY OWN RELIGIOUS HALL, TEMPLE OR CHURCH

THE ABILITY TO WIN JOBS OVER THE QUALIFIED NATIVE CULTURE DUE TO STUPID HUMAN RESOURSE POLICIES EVEN IF YOU FLUNKED THE TEST!

YOUR VERY OWN SECTION OF A CITY WHERE THE NATIVE CULTURE WILL GET SHOT IF ENTERED BY MISTAKE
AND, IN MANY INSTANCES, YOU CAN VOTE.

I JUST WANTED TO MAKE SURE I HAD A FIRM GRASP ON THE "SITUATION"!

PLEASE KEEP THIS GOING......FORWARD TO ALL OF YOUR FRIENDS & FAMILY

IT'S TIME TO WAKE UP AMERICA !  

Daddy's Poem

Daddy's Poem

Her hair was up in a pony tail,
Her favorite dress tied with a bow.
Today was Daddy's Day at school,
And she couldn't wait to go.


But her mommy tried to tell her,
That she probably should stay home;
Why the kids might not understand,
If she went to school alone.


But she was not afraid;
She knew just what to say.
What to tell her classmates
Of why he wasn't there today.

But still her mother worried,
For her to face this day alone.
And that was why, once again,
She tried to keep her daughter home.


But the little girl went to school ,
Eager to tell them all.
About a dad she never sees, a dad
Who never calls.

There were daddies along the wall in
Back, for everyone to meet.
Children squirming impatiently,
Anxious in their seat.


One by one the teacher called
On a student from the class.
To introduce their daddy,
As seconds slowly passed.


At last the teacher called her name,
Every child turned to stare.
Each of them was searching,
A man who wasn't there.


"Where's her daddy at?"
She heard a boy call out.
"She probably doesn't have one,"
Another student dared to shout.

And from somewhere near the back,
She heard a daddy say,
"Looks like another deadbeat dad,
Too busy to waste his day."


The words did not offend her,
As she smiled up at her Mom.
And looked back at her teacher, who
Told her to go on..


And with hands behind her back,
Slowly she began to speak.
And out from the mouth of a child,
Came words incredibly unique.


"My Daddy couldn't be here,
Because he lives so far away.
But I know he wishes he could be,
Since this is such a special day.


And though you cannot meet him,
I wanted you to know
All about my daddy,
And how much he loves me so.


He loved to tell me stories,
He taught me to ride my bike;
He surprised me with pink roses,
And taught me to fly a kite.


We used to share fudge sundaes,
And ice cream in a cone.
And though you cannot see him.
I'm not standing here alone.


'Cause my daddy's always with me,
Even though we are apart;
I know because he told me,
He'll forever be in my heart"


With that, her little hand reached up,
And lay across her chest.
Feeling her own heartbeat,
Beneath her favorite dress.


And from somewhere there in the crowd of dads,
Her mother stood in tears.
Proudly watching her daughter,
Who was wise beyond her years.

For she stood up for the love
Of a man not in her life.
Doing what was best for her,
Doing what was a right.

And when she dropped her hand back
Down, staring straight into the crowd.
She finished with a voice so soft,
But its message clear and loud.


"I love my daddy very much,
he's my shining star.
And if he could, he'd be here,
But heaven's just too far.


You see he is an American Soldier
And he died just this past year,,
When a roadside bomb hit his convoy
And taught Americans to fear.


But sometimes when I close my eyes,
it's like he never went away."
And then she closed her eyes,
And saw him there that day.


And to her mother's amazement,
She witnessed with surprise,
A room full of daddies and children,
All starting to close their eyes.


Who knows what they saw before them;
Who knows what they felt inside.
Perhaps for merely a second,
They saw him at her side.


"I know you're with me Daddy,"
to the silence she called out.
And what happened next made believers,
of those once filled with doubt.


Not one in that room could explain it,
for each of their eyes had been closed.
But there on the desk beside her,
was a fragrant long-stemmed pink rose.


And a child was blessed, if only for
a moment, by the love of her shining star.
And given the gift of believing,
that heaven is never too far.


They say it takes a minute to find a special person, an hour to appreciate them, a day to love them, but then an entire life to forget them.

Send this to the people you'll never forget and remember to send it also to the person that sent it to you. It's a short message to let them know that you'll never forget them.


If you don't send it to anyone, it means you're in a hurry and that you've forgotten your friends.


Take the time....to live and love.

Until eternity


God Bless

There must be many children in the same boat as this little girl, thanks to our servicemen and their families for the sacrifice they are making to keep our country free.
The ULTIMATE sacrifice is being left behind. Don't forget them.
PRAY FOR OUR TROOPS!!!

Can you guess which organization this is? Is it the NBA Or NFL?

Even if you aren't a Sports Fan this is Very  Interesting!

Can you guess which organization  this is?

36  have been accused of spousal abuse

7 have  been arrested for fraud

19 have been  accused of writing bad checks

117 have  directly or indirectly bankrupted at least 2  businesses

3 have done time for  assault

71,  I repeat 71
cannot  get a credit card due to bad credit
14 have  been arrested on  drug-related charges


8 have been  arrested! for shoplifting

21currently  are defendants in lawsuits,
and
84have  been arrested for drunk driving
in  the last year  !


Can you guess which organization  this is?
Is  it the NBA Or NFL?

Give  up yet?
Scroll down,




Neither,



it's  the 535 members of the
United States  Congress

The  same group of Idiots that crank out
hundreds  of new laws each year
designed to keep the  rest of us in line.


You  gotta pass this one  on!

Well?

Someone please tell me what the HELL's wrong with

all the people that run this country!!!!!!

Both

Republicans

&

Democrats

We're "broke"

and can't help

our own

Seniors,

Veterans,

Orphans,

Homeless,

etc.,???????????

In the last years we have provided direct cash aid to

Hamas - 351 M,

Pakistan - 2 B,

Libya    1.45 B,

Egypt - 397 M,

Mexico - 622 M,

Russia - 380 M,

Haiti - 1.4 B,

Jordan - 463 M,

Kenya - 816 M,

Sudan - 870 M,

Nigeria - 456 M,

Uganda - 451 M,

Congo - 359 M,

Ethiopia - 981 M,

South Afrika - 566 M,

Senegal - 698 M,

Mozambique - 404 M,

Zambia - 331 M,

Kazakhstan - 304 M,

Iraq - 1.08 B,

Tanzania - 554 M,

  with literally Billions of Dollars and they still hate us!!!!
 
Our retired seniors

living on a 'fixed income'

receive no aid

nor do they get any breaks while our government
and religious organizations pour
Hundreds of Billions
of $$$$$$'s and Tons of Food
to Foreign Countries!

We have
hundreds of adoptable
children who are shoved aside

to make room for

the adoption of

foreign orphans.

AMERICA: a country where we have

homeless without shelter, children going to bed hungry, elderly going without needed medication and mentally ill without treatment -etc.

YET.......................

They have

a 'Benefit'
for the people of Haiti on 12 TV stations,

ships and planes lining up with food, water, tents clothes, bedding, doctors and medical supplies.

Imagine if
the *GOVERNMENT*

gave 'US' the same support they give to other countries.

Sad isn't it?

99% of people won't have the guts to forward this.

I'm one of the 1% --

I Just Did =

Social Security She is telling it like it is/Please excuse the Lady's bad words

                                                  This Gal hit it right on the head..... 

Whether this is a legit letter or not, the sentiments are well spoken and deserve wide circulation.  See Snopes http://www.snopes.com/politics/soapbox/simpson.asp 

She is telling it like it is. It is our money.

I Think She is Pissed ... Are You?

I don't think pissed really covers it!

Alan Simpson, the Senator from Wyoming calls senior citizens the 'Greediest Generation' as he compared Social Security to a Milk Cow with 310 million teats.

Here's a response in a letter from PATTY MYERS in Montana ... I think she is a little ticked off! She also tells it like it is!

"Hey Alan, let's get a few things straight!!!!!

1. As a career politician, you have been on the public dole (tit) for FIFTY YEARS.

2. I have been paying Social Security taxes for 48 YEARS (since I was 15 years old. I am now 63).

3. My Social Security payments, and those of millions of other Americans, were safely tucked away in an interest bearing account for decades until you political pukes decided to raid the account and give OUR money to a bunch of zero losers in return for votes, thus bankrupting the system and turning Social Security into a Ponzi scheme that would make Bernie Madoff proud.

4. Recently, just like Lucy & Charlie Brown, you and "your ilk" pulled the proverbial football away from millions of American seniors nearing retirement and moved the goalposts for full retirement from age 65 to age, 67. NOW, you and your "shill commission" are proposing to move the goalposts YET AGAIN.

5. I, and millions of other Americans, have been paying into Medicare from Day One, and now "you morons" propose to change the rules of the game. Why? Because "you idiots" mismanaged other parts of the economy to such an extent that you need to steal our money from Medicare to pay the bills.

6. I, and millions of other Americans, have been paying income taxes our entire lives, and now you propose to increase our taxes yet again. Why? Because you "incompetent bastards" spent our money so profligately that you just kept on spending even after you ran out of money. Now, you come to the American taxpayers and say you need more to pay off YOUR debt.
To add insult to injury, you label us "greedy" for calling "bullshit" to your incompetence.

Well, Captain Bullshit, I have a few questions for YOU:

1. How much money have you earned from the American taxpayers during your pathetic 50-year political career?

2. At what age did you retire from your pathetic political career, and how much are you receiving in annual retirement benefits from the American taxpayers?

3. How much do you pay for YOUR government provided health insurance?

4. What cuts in YOUR retirement and healthcare benefits are you proposing in your disgusting deficit reduction proposal, or as usual, have you exempted yourself and your political cronies?

It is you, Captain Bullshit, and your political co-conspirators called Congress who are the "greedy" ones. It is you and your fellow nutcase thieves who have bankrupted America and stolen the American dream from millions of loyal, patriotic taxpayers.

And for what? Votes and your job and retirement security at our expense, you lunk-headed, leech.
That's right, sir. You and yours have bankrupted America for the sole purpose of advancing your pathetic, political careers. You know it, we know it, and you know that we know it.

And you can take that to the bank, you miserable son of a bitch. NO, I did not stutter.

P.S. And stop calling Social Security benefits "entitlements". WHAT AN INSULT!!!!
I have been paying in to the SS system for 45 years “It's my money”-give it back to me the way the system was designed and stop patting yourself on the back like you are being generous by doling out these monthly checks!

PATTY MYERS

EVERYONE!!!
If you like the way things are in America delete this.
If you agree with what a Montana citizen, Patty Myers, says, please PASS IT ON!

Columbine - 12 years later ...

COLUMBINE STUDENT'S FATHER 12 YEARS LATER !!

Guess our national leaders didn't expect this. On Thursday, Darrell Scott, the father of Rachel Scott, a victim of the Columbine High School shootings in Littleton, Colorado, was invited to address the House Judiciary Committee's subcommittee. What he said to our national leaders during this special session of Congress was painfully truthful.

They were not prepared for what he was to say, nor was it received well. It needs to be heard by every parent, every teacher, every politician, every sociologist, every psychologist, and every so-called expert! These courageous words spoken by Darrell Scott are powerful, penetrating, and deeply personal. There is no doubt that God sent this man as a voice crying in the wilderness.. The following is a portion of the transcript:

"Since the dawn of creation there has been both good & evil in the hearts of men and women. We all contain the seeds of kindness or the seeds of violence. The death of my wonderful daughter, Rachel Joy Scott, and the deaths of that heroic teacher, and the other eleven children who died must not be in vain. Their blood cries out for answers.

"The first recorded act of violence was when Cain slew his brother Abel out in the field. The villain was not the club he used.. Neither was it the NCA, the National Club Association. The true killer was Cain, and the reason for the murder could only be found in Cain's heart.

"In the days that followed the Columbine tragedy, I was amazed at how quickly fingers began to be pointed at groups such as the NRA. I am not a member of the NRA. I am not a hunter. I do not even own a gun. I am not here to represent or defend the NRA - because I don't believe that they are responsible for my daughter's death. Therefore I do not believe that they need to be defended. If I believed they had anything to do with Rachel's murder I would be their strongest opponent

I am here today to declare that Columbine was not just a tragedy -- it was a spiritual event that should be forcing us to look at where the real blame lies! Much of the blame lies here in this room. Much of the blame lies behind the pointing fingers of the accusers themselves. I wrote a poem just four nights ago that expresses my feelings best.

Your laws ignore our deepest needs,
Your words are empty air.
You've stripped away our heritage,
You've outlawed simple prayer.
Now gunshots fill our classrooms,
And precious children die.
You seek for answers everywhere,
And ask the question "Why?"
You regulate restrictive laws,
Through legislative creed.
And yet you fail to understand,
That God is what we need!


"Men and women are three-part beings. We all consist of body, mind, and spirit. When we refuse to acknowledge a third part of our make-up, we create a void that allows evil, prejudice, and hatred to rush in and wreak havoc. Spiritual presences were present within our educational systems for most of our nation's history. Many of our major colleges began as theological seminaries. This is a historical fact. What has happened to us as a nation? We have refused to honor God, and in so doing, we open the doors to hatred and violence. And when something as terrible as Columbine's tragedy occurs -- politicians immediately look for a scapegoat such as the NRA. They immediately seek to pass more restrictive laws that contribute to erode away our personal and private liberties. We do not need more restrictive laws. Eric and Dylan would not have been stopped by metal detectors. No amount of gun laws can stop someone who spends months planning this type of massacre. The real villain lies within our own hearts.

"As my son Craig lay under that table in the school library and saw his two friends murdered before his very eyes, he did not hesitate to pray in school. I defy any law or politician to deny him that right! I challenge every young person in America , and around the world, to realize that on April 20, 1999, at Columbine High School prayer was brought back to our schools. Do not let the many prayers offered by those students be in vain. Dare to move into the new millennium with a sacred disregard for legislation that violates your God-given right to communicate with Him. To those of you who would point your finger at the NRA -- I give to you a sincere challenge.. Dare to examine your own heart before casting the first stone! 

My daughter's death will not be in vain! The young people of this country will not allow that to happen!"
- Darrell Scott

Do what the media did not - - let the nation hear this man's speech. Please send this out to everyone you can.
God Bless