QUEEN’S BENCH FOR SASKATCHEWAN Citation: 2006 SKQB 183 Date: 2006 04 19 Docket: Q.B.G. No. 952/2004 Judicial Centre: Regina BETWEEN: MORLEY CATTELL and CHERYL MACK PLAINTIFFS (DEFENDANTS BY COUNTERCLAIM) and CRAIG BOSENBERG and PAULA STRASSBURG and GREAT PLAINS LEASEHOLDS LTD. DEFENDANT (PLAINTIFF BY COUNTERCLAIM) and EMERALD PARK GOLF AND COUNTRY CLUB LTD. and THE TOWN OF WHITE CITY Counsel: Richard B. Morris, Q.C. for the plaintiffs J. Paul Malone for the Emerald Park Golf and Country Club Ltd. and Great Plains Leaseholds Ltd. Rodney J. Rath for the Town of White City JUDGMENT MacDONALD J. April 19, 2006 1) This is an action by the plaintiffs, Cattell, Mack, Bosenberg and Strassburg pursuant to Part Forty of The Queen’s Bench Rules for damages arising to them from the alleged nuisance and negligence caused by the defendants, Great Plains Leaseholds Ltd. and the Town of White City with respect to their operation of the Emerald Park Golf and Country Club Ltd., and for a permanent injunction to prohibit the defendants from continuing to operate the golf course in a manner that causes errant golf balls to enter the property of the plaintiffs. 2) The plaintiffs Morley Cattell, Cheryl Mack, Craig Bosenberg and Paula Strassburg are neighbours and live in the community of Emerald Park just east of the City of Regina. Their homes are adjacent to one another and abut the ninth hole of the Emerald Park Golf Course. 3) Until recently, the golf course was owned and operated by the defendant, Emerald Park Golf and Country Club Ltd. On January 12, 2005, the property was purchased by The Town of White City who entered into an agreement with Great Plains Leaseholds Ltd. and PW Lorch Associates Ltd. for the continued operation of the course. 4) The plaintiffs, Cattell and Mack, acquired their lot in early 1997 and the plaintiffs, Bosenberg and Strassburg bought their home from the previous owners in February 2003. 5) In the span of approximately nine years, the plaintiffs, Cattell and Mack, have had approximately 1,000 golf balls per year enter their property. Although fewer balls have landed in the yard of Bosenberg and Strassburg, the number in 2004 was around 400 and in 2005, their evidence is they collected 250 balls. 6) The golf season on this course is from mid-April until October. During the peak season, the plaintiffs say they can experience approximately 10 to 15 balls day entering their yard. Some of the balls roll under the fence, but many of these balls are hard driven and as result the plaintiffs have sustained extensive damage to their homes, the windows of their vehicles and on other occasions the balls have narrowly missed hitting workmen and guests in the yard. 7) The inconvenience is so great and the potential for injury so substantial that the plaintiffs have been prevented from using their yards during the seven months of the year that the course operates. 8) In addition, golfers who have shot their balls into the plaintiffs’ yards will often attempt to enter the property to either retrieve their golf balls or occasionally will try and play the shot from the plaintiffs’ yards. On one occasion an angry golfer deliberately shot ball at the plaintiffs’ house and when he was being asked to leave threatened to burn the house down. 9) The golf course was designed and built in the late 1980s by Great Plains Leaseholds Ltd. The course operated for approximately 10 years without any residential development adjacent to it; however, in 1997, the defendant, Great Plains Leaseholds Ltd., entered into an agreement with Parkview Homes Ltd. to open up the land beside the golf course for residential development. 10) Ben Kuzmicz, President of both Emerald Park and Country Club Ltd. and Great Plains Leaseholds Ltd. and one of the original developers of the golf course, testified at trial that the design plans for the residential area were not part of the initial design of the golf course, nor were the services of the original golf course architect used in planning the development. The actual development plan came later. 11) Mr. Kuzmicz, to his credit, was very candid in his cross-examination and when asked about the development plan, acknowledged that the original residential lot design was based on his own configuration with input from local surveyor who was employed to survey out the lots, prepare and register the plan. 12) He also acknowledged that although he does not golf and did not have any residential or golf course design experience when he set about to design this subdivision, he felt confident that everything would be fine. He confirmed, however, that the design of the ninth hole and the configuration of the adjacent lots has been an ongoing problem since the houses were built. 13) He further confirmed that although there have been attempts by the defendant, Great Plains Leaseholds Ltd., over the years to remedy the problem, they have never commissioned any reports or sought out any professional advice on how this situation could be properly remedied. Rather, he has preferred to rely on his own observations and judgment and the recommendations of the various course managers as to how this problem might be abated. 14) Unfortunately, he said the input of those managers has not been very helpful in finding solution, but he is now hopeful that with assistance of the new golf course manager, who is business woman with interior design experience, and his own life experience as farmer, that the problem will be resolved. 15) One of his solutions has been to oversee the planting of both spruce trees and deciduous trees in an attempt to block some of the shots. He also argued that the plaintiffs should have planted more trees themselves and that if they had, it might have prevented some of the damage to their property. He relies on paragraph 2.07(g) of the contract to support this proposition. He did acknowledge though that the plaintiffs did plant spruce trees which were destroyed by the golfers and that the reference to trees in the contract requires them to be on the lot and not necessarily as protection from flying golf balls. 16) The plaintiffs’ lots border the right hand or east side of the ninth hole. The ninth hole is described as long hole and is oriented from east to west. An examination of the sketches and pictures attached to the affidavits show that the design of the hole places the plaintiffs’ homes right in the line of fire, not only from those golf balls being hit off of the ninth tee, but also from balls hit from second or third shots being played on that hole. 17) Prior to trial, and in an attempt to find resolution to this matter, the plaintiffs commissioned the report of Mr. Ken Tanner, an expert in golf ball trajectory. 18) In his report he describes several factors that would cause golf balls being hit from the ninth hole of the Emerald Park Golf Course to enter the plaintiffs’ yards. These factors include what he refers to as golfer’s obsession with distance. This obsession, when combined with recent advances in technology, have resulted in golfers being able to hit the ball farther without increasing their swing speed. He also says that while this may be one reason for the existing problem, this is not the only reason for the plaintiffs’ problem. If you overlay this obsession with distance onto the current design of the ninth hole, and add to that the prevailing wind direction, together with the golfer’s perceived or real need to compensate for the wind direction and speed, you often end up with misalignment of the shot. All or many of these factors can cause the ball to land in the plaintiffs’ yards instead of on the course. 19) In addition, he suggests that some golfers would, in fact, intentionally aim their shots toward the residential lots. 20) His report makes several recommendations which he believes would remedy the present situation and thereby prevent golf balls from entering the plaintiffs’ property. 21) The first recommendation is to move the tee box back and construct 30 metre fence. 22) The second recommendation is to change the nature of the hole from that of par four to par three, which in his opinion would prevent golfers from driving the ball as hard as they are presently doing in an attempt to reach the green. This would also prevent the balls that are being hit from second and third shots from entering onto the property of the plaintiffs. 23) While the defendants are now amenable to moving the tee box back and did, in fact, move it back last fall, they refuse to erect fence to the size recommended in the report stating that it would be unmanageable and unsightly. 24) The plaintiffs agree that fence of that size might be unsightly, but argue that the defendants have advanced no expert evidence to support the proposition that just moving the tee box will fix the problem. The plaintiffs say that the only evidence the defendants have that this might correct the problem are the recorded observations of two course marshals over two day period in October, 2005. These observations were made when the prevailing wind was from the northwest, not the southeast, and the number of golfers was low and is therefore not reliable since it does not reflect the conditions present during the majority of the golfing season. 25) Mr. Kuzmicz also refuses to accept the second recommendation in the report, saying that in his opinion, if the course was changed from par four to par three, the defendant, Emerald Park Golf and Country Club Ltd., could no longer advertise itself as championship golf course and this he believes would reduce its attractiveness to some golfers. He did agree on cross‑examination, however, that in the 20 plus years that the golf course has operated, it has held only one or two championship games and that he has no expert or other evidence to support this proposition. 26) The administrator for the Town of White City, the current owner of the course, was asked at trial whether she was familiar with the recommendations in Mr. Tanner’s report. In reply she stated that she was; however, although she had been advised by the operator of the course that change to par three might affect its ability to attract champion golfers, the Town officials themselves were not really that concerned with the par three issue since the main reason the Town had acquired the course was to provide recreational site to its residents and not to make money. 27) She did state, however, that the first recommendation to move the tee box back and erect 30 metre fence could probably be accomplished by moving the box back and the erection of much lower fence. She had no basis for this view and when questioned as to how she came to that conclusion she acknowledges she was simply relying on the advice of the operator and not on any expert evidence or reports. 28) Because the defendants refuse to accept either of the recommendations in the report, the plaintiffs are now left in the position where they are being encouraged to once again just wait and see how badly they will be affected in the 2006 season. 29) Since the problem has been ongoing for ten years and the attempts by the defendant operator to ameliorate the damage has been unsatisfactory, the plaintiffs are no longer prepared to wait and have asked the Court for relief in the form of an injunction to prevent the defendants from operating the ninth hole until the situation has been remedied in accordance with the recommendations in the expert’s report. ISSUES (a) Does the manner in which the defendants allow the ninth hole of the Emerald Park Golf and Country Club to be played constitute nuisance? (b) Are the defendants negligent for the design and management of the golf course and for its failure to remedy the problem of golf balls hitting the plaintiffs’ property? If so, what are the plaintiffs’ damages? (c) What is the effect of the indemnity clause in the development agreement between the defendant, Great Plains Leaseholds Ltd., and the plaintiffs, Cattell and Mack? (d) Is injunctive relief an appropriate remedy in the circumstances and if it is, should it be suspended for period of time in order to give the defendants an opportunity to see whether the location of the new tee box will remedy the situation? 30) Private nuisance is defined as an unreasonable interference with the use and enjoyment of land. “This may come about by physical damage to the land ... or injury to the health, comfort or convenience of the occupier” (see Allen M. Linden, Canadian Tort Law, 7th ed. (Markham, Ont.: Butterworths, 2001) at 525. 31) Whether the operation of golf course adjacent to an individual’s land is defined as being an unreasonable interference with the use and enjoyment of that land appears to depend on the nature and frequency of the behaviour complained of. 32) The plaintiffs’ position is that the golf balls which are hit from the adjacent golf course onto their property is and continues to be an interference with the use and enjoyment of their property. They argue that not only is the interference unreasonable, it is potentially dangerous to them and their families. 33) There are number of recent cases from various jurisdictions that have examined whether golf balls flying from an adjacent golf course onto an individual’s property constitutes nuisance. Our own Court of Appeal examined this issue in the case of Lakeview Gardens Ltd. v. Regina (City), 2004 SKCA 110 (CanLII); [2005] W.W.R. 651; (2004), 254 Sask. R. 212. In that very specific fact situation the court held that few golf balls of 10-20 over five-year period, with limited damage to property did not constitute continuing nuisance. 34) If we look to the other jurisdictions for some guidance as to what number of errant balls might fairly constitute nuisance, it would appear that anything from 200 golf balls and up over the span of year is definitely an unreasonable interference with the use and enjoyment of one’s own property. Mr. Tanner, an expert in golf ball velocity, said that it is hard to estimate how many errant golf balls being hit into someone’s yard would constitute too many. Given the fact that the majority of the balls are hit at speeds of between 100 and 120 miles per hour, even few can, in his opinion, cause considerable damage and serious injury when they hit something. 35) Here, the number of golf balls being hit onto the adjacent properties from the defendant golf course is far greater than the number cited in many of the cases put forward. In fact, the evidence of everyone, the defendant operator of the golf course and the plaintiff, Cattell, affirms that no one ever anticipated that the problem would be this bad. 36) There is no doubt then that the present operation of the ninth hole of the Emerald Park Golf Course is a nuisance and continues to be a nuisance. 37) Which then leads us into the argument advanced by the defence that the plaintiffs, Cattell and Mack, cannot succeed in their action because of the wording in the Optionee’s Indemnity clause as contained in paragraph 2.12 of the Option Agreement between Great Plains Leaseholds Ltd. and Parkview Homes Ltd. and which agreement was later assigned to Cattell and Mack upon their lot purchase from Parkview. 38) In that clause, Mack and Cattell, contract to indemnify and hold harmless the optionor (Great Plains Leaseholds Ltd.) “from, and against, all claims, demands, damages, losses ... related to, occasioned by or arising out of, resulting from or attributable to the acts or omissions of the [optionee], anyone directly or indirectly employed by any of them or anyone for whose acts any of them may be liable, in breaching the covenants, agreements, undertakings and obligations of the [defendant] hereunder.” 39) The clause then goes on to hold the defendant optionor harmless against all injuries, damages, losses, expenses costs etc. occasioned by or arising from the operation of the golf course. 40) It would appear to me that this clause is of little value to the defendants given that the evidence of all of the parties, including the evidence of Ben Kuzmicz, confirms the fact that when the residential area was developed and the contract was signed, no one, including the operator (Great Plains Leaseholds Ltd.), anticipated the extent of the existing problem and, accordingly, the plaintiffs Cattell and Mack could not have agreed to save the defendant harmless from a problem of this magnitude. 41) This clause does not therefore afford any protection to the defendants, and even if it did bind the plaintiffs, Cattell and Mack, it does not release the defendants from the claim by Bosenberg and Strassburg, who continue to have the same problem with the golf balls. 42) Accordingly, the defendants, Great Plains Leaseholds Ltd. and Emerald Park Golf and Country Club Ltd., are therefore liable to all of the plaintiffs in negligence for the failure over the past years to remedy or eliminate this hazardous and dangerous situation. This failure has not only caused extensive physical damage to the plaintiffs’ properties, but has also resulted in the loss of the use and enjoyment of their yards for seven months of the year and for these damages they should be compensated. 43) The Town of White City argued that they should only be responsible for those damages which have arisen since they became the owners of the golf course. do not agree and accordingly the defendants, Great Plains Leaseholds Ltd., Emerald Park Golf and Country Club Ltd. and The Town of White City shall be jointly and severally liable to the plaintiffs for those special damages as set out in the affidavits filed. The defendants did not dispute the amount of those damages at trial. 44) The plaintiffs, Morley Cattell and Cheryl Mack, shall also be entitled to recover from the defendants, Great Plains Leaseholds Ltd., Emerald Park Golf and Country Club Ltd. and The Town of White City, jointly and severally, the sum of $18,000.00 for the loss of use and enjoyment of their property over the past nine years. The plaintiffs, Craig Bosenberg and Paul Strassburg shall be entitled to the sum of $6,000.00. 45) In addition, for the reasons as outlined in the preceding paragraphs, I am of the view that the plaintiffs are entitled to injunctive relief to put an end to the nuisance which has continued for the past nine years. am not prepared to order the specific course of action that the defendants should take in order to remedy the problem. The expert’s report has been filed. In that report he has made certain recommendations, one of those recommendations should be fully complied with unless the defendants can come up with better solution for resolving this dangerous and annoying problem. I therefore order the following:(a) The defendants, Great Plains Leaseholds Ltd., Emerald Park Golf and Country Club Ltd., and The Town of White City are hereby enjoined from allowing its members and their guests or any other users of the golf course from hitting golf balls on the ninth hole of the course so that they land anywhere on the plaintiffs’ property. J. L. B. MacDonald
The plaintiffs seek damages arising from the alleged nuisance and negligence caused the defendants in the operation of the golf course. The plaintiffs also seek an injunction to prohibit the defendants from continuing to operate the golf course in a manner that causes errant golf balls to enter the plaintiffs' property. HELD: 1) The court looked at other jurisdictions for guidance as to what number of errant balls might constitute a nuisance. It would appear that anything from 200 golf balls and up over the span of a year is definitely an unreasonable interference with the use and enjoyment of one's own property. Over a span of 9 years, the plaintiffs have had approximately 1,000 golf balls per year enter their property. In this case, the number of golf balls being hit onto the adjacent properties from the defendant's golf course is far greater than the number cited in many of the cases put forward. There is no doubt then that the present operation of the ninth hole is a nuisance and continues to be a nuisance.  2) The wording of the Optionee's Indemnity clause is of little value to the defendants given the evidence of the parties. The evidence confirms that when the residential area was developed and the contract signed, no one, including the operator, anticipated the extent of the existing problem. Accordingly, the plaintiffs could not have agreed to save the defendant harmless from a problem of this magnitude. 3) The plaintiffs will be compensated for the extensive physical damaged to the plaintiffs' properties, but also for the loss of the use and enjoyment of their yards for 7 months of the year. 4) The plaintiffs are entitled to injunctive relief to put an end to the nuisance that has continued for the past 9 years. The defendants are enjoined from allowing golfers from hitting golf balls on the ninth hole so that they land anywhere near the plaintiffs' property.