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Weekly UpdatesWhen property was subject to an easement for golf balls, an increase in the number of balls entering the lot was within the scope of the easement and did not constitute excessive use, according to the Court of Appeals of Georgia.
James and Susan DeSarno's residence is adjacent to a golf course; their property is subject to a recorded easement allowing errant golf balls to enter, and relieving the course owner from liability for any resulting damage. Although the DeSarnos were aware of the easement when they purchased the lot, they did not anticipate that the course's business would increase until approximately 30,000 rounds of golf were played annually. The number of golf balls entering their yard likewise increased dramatically, frequently causing broken windows and other property damage.
The DeSarnos filed trespass and nuisance actions against the golf course owner, operator, and manager (collectively, Defendants), seeking damages and an injunction against play on the hole nearest their residence. The trial court ruled in favor of the Defendants on summary judgment, and the DeSarnos appealed.
On appeal, the DeSarnos argued that the extremely large number of golf balls entering their property was an excessive use of the easement and thereby created a nuisance. The appellate court disagreed.
The court stated that excessive use of an easement refers to a character of use outside the scope of the easement, not to the number of times the easement is used. The golf ball easement may be used with ever-increasing frequency without rendering the Defendants liable for trespass or nuisance, according to the court. The court thus concluded that the easement expressly permitted the complained-of activity and that the DeSarnos were not entitled to any relief. The trial court decision was affirmed.
DeSarno v. Jam Golf Management, LLC
Court of Appeals of Georgia
December 3, 2008
2008 WL 5076178 (Ga. App. 2008)
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