Sans v. Ramsey Golf & Country Club, Inc.

• Decision Date: 17 March 1959
• Docket Number: No. A--82,A--82
• Citation: Sans v. Ramsey Golf & Country Club, Inc., 149 A.2d 599, 29 N.J. 438 (N.J. 1959)
• Parties: , 68 A.L.R.2d 1323 Ralph SANS and Mitzi Sans, Plaintiffs-Respondents, v. RAMSEY GOLF AND COUNTRY CLUB, INC., Defendant-Appellant.
• Court: New Jersey Supreme Court

Page 438

29 N.J. 438

149 A.2d 599, 68 A.L.R.2d 1323

Ralph SANS and Mitzi Sans, Plaintiffs-Respondents, v. RAMSEY GOLF AND COUNTRY CLUB, INC., Defendant-Appellant.

No. A--82.

Supreme Court of New Jersey.

Argued Feb. 3, 1959.

Decided March 17, 1959.

James A. Major, Hackensack, argued the cause for defendant-appellant (James M. Muth, Ramsey, on the brief).

Walter D. Van Riper, Newark, argued the cause for plaintiffs-respondents (Van Riper & Belmont, Newark, attorneys).

The opinion of the court was delivered by

FRANCIS, J.

An injunction was issued by the Chancery Division of the Superior Court against defendant Ramsey Golf and Country Club, Inc., barring the further use of the men's and women's third tees of its golf course. The Appellate Division affirmed, 50 N.J.Super. 127, 141 A.2d 335 (1958), and this Court granted certification.

The issue presented is a novel one. The facts which created it are not seriously in dispute. The physical setting which forms its background is the product of the ingenuity of a real estate developer.

In the 1940's the National House and Farms Ass'n, Inc., undertook a combination residential and country club development in the boroughs of Ramsey and Allendale, Bergen County. A nine-hole golf course was laid out, surrounded on all sides by home building lots. Only eight greens were provided, but the holes were so arranged that one green was to be played twice. The development tract contained three small lakes, one of which, called Mirror Lake, became the water hazard hole about which this controversy centers. A club house and tennis courts were constructed. National organized the defendant Ramsey Golf and Country Club, Inc., for the purpose of managing the recreational facilities. Under the sales plan the purchaser of a lot or a home automatically qualified for membership in the club. In 1945, after an undisclosed number of lots had been sold, the golf course, the clubhouse and the recreational areas were conveyed to defendant. Apparently as a later time in some manner associate memberships were authorized. They were not dependent upon ownership of a lot or home in the development.

In 1949 the plaintiffs, husband and wife, purchased a lot in the development. Naturally, they were aware of the existence of the golf course, and they became members of the club. They commenced construction of a home on the lot in 1950, after which they acquired two adjoining parcels. One side of their property adjoins the fairway of the second hole. The rear line of the three lots is near Mirror Lake but does not run to the water. It is separated from the edge of the lake by a strip of land varying in width from 11 to 40 feet, which is owned by the golf club.

In 1948 the present third women's tee was built. Its location was designed to create a short par 4 water hole. A successful drive required a carry over the water at a point about 25 yards from the northerly edge of the lake. It seems clear, as the Appellate Division found, that the tee had been in continuous use since its installation, although the plaintiff Ralph Sans testified that he did not notice it until 1950 when his home was being built. Subsequently, apparently in 1949, a separate men's tee was built for this hole about 30 feet farther from the northerly edge of the lake. The purpose was to lengthen the water hazard for the men. Both tees are on golf club property. According to Sans, the men's tee is 'roughly' 50 to 60 feet from the southerly corner of the rear of his house; the women's tee is closer.

In order to reach the third tees from the second green, the golfers walk along the 11 to 40-foot-wide path (owned by defendant and described above) separating plaintiffs' rear lawn from the lake.

Plaintiffs moved into their new home in June or July of 1951, and have lived there since that time. They have two children, who were 10 and 11 years of age when the case was heard. As the membership of the club grew, play on the golf course increased, and the players' use of the third tees and the path to reach them became annoying and burdensome to plaintiffs. They began to complain to defendant's officials, and thereafter and until this suit was brought, they sought to effect the relocation of the tees to the north of the northerly line of the lake. Such a change is feasible. In fact, when a stay of the restraint issued by the trial court was denied, a new temporary tee was built and has been in use pending the determination of this appeal. The objection of defendant to adopting it permanently is that an attractive short par 4 water hole is transformed into an ordinary par 3 one on a nine-hole course which already has three par 3 holes.

Plaintiffs' complaint charged defendant and its members with trespassing on their land by using the pathway along the lake in walking to the ladies' and men's tees in question. This contention was abandoned when it appeared that plaintiffs did not own the strip and that, although National had not conveyed it to defendant in the original 1945 deed, a transfer had been made by deed in 1955. Other allegations, however, in company with the issues appearing in the pretrial order, were deemed by the trial court to present a claim that the location of the tees and the manner and incidents of their use by defendant and its members constituted a private nuisance as to plaintiffs. The trial was conducted on the latter basis.

Proof was adduced that in the golf season play begins on the third tees as early as 6 A.M. and continues throughout the day until twilight. On week-ends and holidays the activity is more intense. Sans spoke of an 'endless stream of golfers' using the path just in back of his house. He estimated that about 500 families held membership in the club. The person who had been defendant's president in 1954 and 1956 testified and was asked the number of resident members. He said that he had no idea and would have to refer to the records. They were never produced. Later, after the noon recess, he returned to the stand and said, in answer to counsel for defendant: 'I am not sure whether it is 299 or 305 resident families in the Estates.' When he joined the club in 1950 there were 'somewhere around 120 or 125 families.' In 1957, he said, 69 associate members (I.e., those who do not live in the development) had been admitted; there were 75 such members in 1954 and 1956, and 90 in 1955. He conceded that play on the course had increased since 1950. Yet he claimed that in the summertime on week-ends 'we would run an average--not having counted them, I would have to guess--80 to 110 or 115' players. The assertion may be contrasted with the testimony of the 1948 chairman of the greens committee who fixed the number of resident male golfers in that year at 'perhaps' 50, and the associate members at between 40 and 50, with about 100 members playing the course on week-ends. This witness sold his property in 1949 and thereafter had no connection with the club.

The unusual feature of this testimony is that in 1948, with many times fewer families and about four-or five-ninths as many associate members, there were about the same number of players on week-ends as in 1955. The reliability of such proof in the face of Sans' testimony of a steady stream of golfers all day long, is open to serious question. If the defense witness estimate of 115 players is accepted and the assumption made that each golfer plays 18 holes on this short course on Saturdays, Sundays and holidays, there were 460 trips each day over the path in back of plaintiffs' home to the third tee and back to the fairway after driving across the lake. And every 18-hole player added to defendant's apparently low figure means four additional passages over that path. The absence of proof as to the exact number of week-end players in the years between 1950 and 1955 cannot obscure the fact that a substantial increase in play occurred during that period. The intensified use brings into focus another factor. The original map of the Ramsey Country Club Estates, approved in 1940 by the Borough of Ramsey and filed in 1941 in the Bergen County Clerk's Office, was marked in evidence. It shows the layout of the golf course virtually encircled by demarcated building lots. As portrayed then, Mirror Lake was not a water hole. There was no tee anywhere on the westerly or northerly side thereof, and, of course, none in the vicinity of the lots now owned by plaintiffs. The nearest tee to those lots seems to have been approximately 250 feet to the southeast of the water, I.e., across the lake and to the southwest. What is now the ladies' third tee was built personally by some members of the club in 1948 for the use of both men and women. The then chairman of the greens committee testified:

'Q. Who else did you say worked with you in laying out that tee? A. Well, back in those days there were a group of regulars. Do you want names?

'Q. Yes. A. I recall Bill Millett, Bob Foyles. Both were then residents of the Ramsey Golf and Country Club. Myself. Then I had occasional help from others now and then. I cannot recall. Walter Yonker would lend a hand now and then, but like every organization a few seemed to carry the burden, and we personally built this tee, carried the dirt, and we used fill that was trucked in for this second green. I personally brought several wheelbarrows in to level off the spot which is shown here at the ladies' tee. We built that up.'

In 1948 there were no houses in the area; 'nothing there but just the woods.' Thereafter, the additional tee was constructed in the location described in order to make the water carry longer for the men.

When Sans bought his first lot in 1949, the one on which his home was later constructed, he did not see the tee or tees in question. And there is no proof that anyone called them to his attention. It does appear that a certain brochure respecting the development had been given to him. A similar one was...