It's often said that good fences make good neighbors. But what if fences can't protect you from flying golf balls that pelt your property and endanger your children? That's the issue in a bizarre legal case involving a young family that purchased what they thought was their dream home overlooking a golf course in Kingston. Daniel Medwed, GBH News legal analyst and Northeastern University law professor, joined GBH Morning Edition hosts Paris Alston and Jeremy Siegel to talk more about the peculiar property dispute. This transcript has been edited for clarity and length.

Paris Alston: So, Daniel, tell us what happened here.

Daniel Medwed: So back in 2017, a young couple, Athina and Erik Tenczar, bought what they thought was their dream house along the 15th hole fairway of a golf course in Kingston. Their dream, though, soon turned into something of a nightmare as errant golf balls kept pummeling their property, damaging the siding to the house, breaking some windows. It even got to the point where apparently neighborhood kids had to wear bike helmets when playing outside the house. And they retrieved about 700 golf balls over a four-year period.

Jeremy Siegel: So this sounds like a disaster. It kind of reminds me of what my neighbors growing up probably had to deal with, my brothers and me next door. But I mean, I guess a key difference here is my neighbors couldn't have predicted what my brothers and I would be like. I don't want to sound callous here, but they did buy a house next to a golf course. Aren't you assuming some risk of balls entering your property when you do that?

Medwed: Well, that's the argument that golf course owners make in cases like this. And the idea, it's called "coming into the nuisance." That's the legal term. When you buy a property like this, you assume the risk, you assume the responsibility. You know that there are going to be a certain number of wayward golf balls that are going to float into your property. And that is calculated into the purchase price of the home, right, sort of indirectly. And also, you can buy insurance to deal with it. At least that's what golf course owners say.

The legal issue is when it transcends a mere nuisance and it becomes something that's called a continuing trespass. It's such an invasion of privacy, it's so persistent, it's so constant, it's so severe that it's something that homeowners shouldn't be forced to tolerate. And the typical legal remedy in a continuing trespass case is an injunction, an order from the court to stop the defendant, the golf course, from creating the hazard that is leading to this problem.

Alston: And I’ve got to say, 700 golf balls does sound pretty severe. So, Daniel, did the Tenczars rely on this continuing trespass theory in their lawsuit?

Medwed: Yes, they did. And after a six-day trial in Plymouth Superior Court, a judge issued an injunction and a jury — get this — awarded them $3.5 million in damages. And with interest, it might be up to $4.9 million. Now, a couple of things have happened since — that occurred a few months ago. First, the golf course did modify the layout of the 15th hole fairway, and apparently that has abated the problem, the problem isn't as severe now. Second, the golf course owners have appealed this case. They've submitted a notice of appeal in the Massachusetts appeals court, presumably taking aim at the size of this damage award.

Siegel: It'll be interesting to see what happens with that appeal. Are there any precedents for cases like this, that could tell us how an appeals court might rule on it?

Medwed: Surprisingly so. There are quite a few cases about this. I found a 2005 case from the Massachusetts appeals court involving sort of strikingly similar facts. Two homeowners lived in properties adjacent to a golf course in Rehoboth. One of them brought in 1,800 golf balls to court to show what the experience was like. And she claimed that basically her backyard deck was unusable during golf season, during the day. The trial court rejected the plaintiffs, however, saying that this was just a nuisance, that they came into the nuisance and they were aware of this going into the property purchase. However, the Massachusetts appeals court reversed and said that this was a continuing trespass, this was an invasion of privacy. So I think that's a pretty strong precedent in favor of the Tenczars in this case.

"The legal issue is when it transcends a mere nuisance and it becomes something that's called a continuing trespass."
-Daniel Medwed, GBH News legal analyst

Alston: So you've broken it down, Daniel, as a nuisance, which may be acceptable and a continuing trespass, which is not. Does that distinction depend on how much interference there was?

Medwed: Exactly. It's about how persistent, how constant, how severe, how far beyond what's reasonable in terms of a homeowner's expectation for the nuisance has the experience gone. I think those are the key variables. It's a matter of degree.

Siegel: I'm imagining a court hearing where the turnout is dependent on how many golf balls are brought to the court. So what about situations other than golf courses? I brought up my brothers and me. I hope I'm not opening us up to legal action here. Have courts recognized this continuing trespass theory that you're talking about here, have they recognized it in other contexts other than golf courses?

Medwed: Well, I don't know, Jeremy, you and your brother, how many water balloons did you throw over to your neighbors? Was it in the hundreds?

Alston: And I'm wondering, Daniel — I have these two German shepherds living next to me that are very loud.

Medwed: But no projectiles.

Alston: No projectiles. They good.

Medwed: Well, you know, I did find a case. I think you guys will love this one — from 1929 right here in Boston. It's called Hennessy versus Boston, where some owners of a private garage lived next to a public baseball field that was being maintained by the city of Boston. And the invited guests to the field, kids on the field would, of course, hit balls and throw balls that broke windows and potentially endangered cars and employees over at the private garage. So the Hennessys filed a lawsuit under a trespass theory, and the court said, yep, this was a trespass, this was an invasion of their privacy, and they're entitled to damages. The sums that they were awarded were quite modest, get this — $264.90. Even in 1929 terms, I bet that pales in comparison to the nearly $5 million damage award that the Tenczars are looking at. But I think all of these cases are really a cautionary tale. Don't live next to a place where there are lots of projectiles. Maybe, you know, Paris, your dogs are okay, but Jeremy's water balloons maybe are a problem.

Alston: Yeah, something to think about when you are looking for your next home. Northeastern law professor and GBH legal analyst Daniel Medwed, thank you so much.