Plaintiffs, Gene and Deborah Borton, appeal from the trial courts grant of summary judgment in favor of

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Plaintiffs, Gene and Deborah Borton, appeal from the trial court’s grant of summary judgment in favor of defendant, Forest Hills Country Club on plaintiffs’ claims for injunctive relief and money damages due to golf balls hit onto their property from defendant’s golf course. Plaintiffs also appeal from the summary judgment in favor of defendant on its counterclaim asserting it had gained an easement allowing its members to hit errant golf balls onto plaintiffs’ property. We reverse and remand.

The developer of defendant’s golf course began to sell lots for residential use adjacent to the golf course in 1963. The developer filed and recorded a set of deed restrictions on all the residential lots adjacent to the golf course in November, 1963. Paragraph 11 of these deed restrictions recites:

All owners and occupants of any lot in the Forest Hills Club Estates Subdivision shall extend to one person, in a group of members or guests playing a normal game of golf on the Forest Hills Golf and Country Club, or their caddy, the courtesy of allowing such person or caddy the privilege of retrieving any and all errant golf balls which may have landed or remained on any lot in the subdivision. However, care shall be exercised in the retrieving of such golf ball to prevent damage to any lawn, flowers, shrubbery, or other improvement on the lot.

Plaintiffs purchased a residence adjacent to the fairway on the eleventh hole on defendant’s golf course in March, 1994. The general warranty deed to plaintiffs provided that the property was subject to the set of deed restrictions and covenants. Because of the proximity of the tee boxes on the eleventh hole to plaintiffs’ home, thousands of errant golf balls have been hit onto plaintiffs’ property since they purchased their residence.

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 Plaintiffs concede that paragraph 11 of the deed restriction gives defendant and its members some right with respect to retrieving errant golf balls. Plaintiffs argue, however, that the right created in paragraph 11 is simply a license. Defendant contends it has an easement over the Borton’s property, either by express grant via paragraph 11 in the deed restriction or by prescription.

Both a license and easement give the grantee the right to go onto the grantor’s property for a limited use. [Citations.] A license is a personal right and as such, may be revoked at the will of the licensor. [Citation.] An easement, by contrast, gives the grantee an interest in the property of the grantor and thus runs with the land and is binding upon successive landowners. [Citations.]

In the instant case, since the original developer of the property properly recorded and filed the deed restrictions, those restrictions created property interests that run with the land and are binding on successive landowners. [Citations.] Thus, plaintiffs do not have the power to revoke or modify the rights granted to defendant in paragraph 11 of the deed restrictions. Therefore, the deed restrictions in paragraph 11 are in the nature of an easement in favor of defendant and its members to retrieve errant golf balls hit onto plaintiffs’ property during a normal game of golf.

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Since the terms of paragraph 11 are binding upon the parties and run with the land, we hold that defendant was granted an express easement by paragraph 11 of the deed restrictions.

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Plaintiffs may recover * * * if they can demonstrate that defendant’s current use of the easement constitutes a greater burden to their land than what was contemplated or intended. [Citations.] The defendant did not address plaintiffs’ [claims] in its cross motion for summary judgment, and did not submit summary judgment facts to demonstrate that there is no material issue of fact in dispute as to this issue. Thus, the trial court’s dismissal of plaintiffs’ [claim] was premature and must be reversed.

The trial court’s judgment granting defendant an easement over plaintiffs’ property is reversed with instructions to enter judgment that defendant was granted an express easement by paragraph 11 of the deed restrictions. The trial court’s dismissal of plaintiffs’ [claim] is reversed and remanded for further proceedings.

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Smith and Roberson Business Law

ISBN: 978-0538473637

15th Edition

Authors: Richard A. Mann, Barry S. Roberts

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