Nature of the Case
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Facts
Fenton (P) purchased their house in 1952. They bought their house from the Lussiers who had purchased their home from Quaboag (D) in 1944. The Lussiers had a great coexistence with D, and they even sold soft drinks and sandwiches to the golfers on the course and thus were not upset by the occasional golf ball descending on their property. When P moved into their new home, they immediately discovered that not all golfers had exceptional skills. From 1952, an average of 250 balls were left on the land of P save for 1960 when 320 balls were deposited. They suffered 16 panes of broken windows, and on occasion, P collected the balls and sold them. Their dog was so apprehensive of approaching golfers that they had to give him up and eventually acquired another dog that has been struck by flying balls. P himself has been struck, and their cookouts were interrupted by errant balls. When a ball bearing the description of “Hi Johnnie” descended on their property, the level of severe animosities increased. One incident resulted in a player who trespassed on P’s property to get his ball with the player then swinging his club at P’s dog and P himself. After P sued D, D constructed a fence, which has almost abated the problems but still resulted in 81 balls entering his property. The special master who heard the case gave P damages of $38.50 for the broken panes of glass and for $2,250 for loss in the fair market value of the property and another $2,600 for disturbance of peace and comfort for the 13 years prior to the erection of the fence and another $50 since the fence was put up. The court entered its final decree with a decree enjoining D from operating his course so as to damage the property of P or to cause golf balls to come onto P’s property. This appeal resulted.
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