“Workers of the World, Play Through!”

Karl Marx met Tiger Woods in a Massachusetts courtroom recently, and they both double bogeyed. Karl Marx famously declared that “the history of all hitherto existing society is the history of class struggle.” That class struggle would eventually end, Marx confidently predicted, with the withering away of the state and the establishment of a “workers paradise.” Little did Karl reckon with a decidedly unproletarian 21st century American version of paradise — the residential golf community.

Marx taught (Hey, who signed me up for that class?) that in any given society or era, property rights are defined and enforced to serve the interests of the ruling classes of the day. As we all know, Marx’s somewhat subversive ideas gained traction in the ensuing years, and they did so because, well, because — regardless of where you stood on the withering away and workers’ paradise stuff — he was kind of right on that one issue.

Let’s look at what Marx knew: As economic activity shifted during the late Middle Ages from agriculture toward town and city based trade, the rules of property law evolved to favor the emerging merchant interest. When steam power, railroads and large scale manufacturing in the 1800s triggered even more intense urbanization, the rules shifted again to favor the emerging manufacturing interests.

The creation of wealth has in recent times became less tied to tangible property, such as real estate, and more dependent on the control of intangible property, such as patents and trade secrets. As Marx would predict, the center of gravity of property law has in response trended slightly away from ownership issues and toward the right to use, and to prevent the use (or to charge others for the use) of property.

Napster and Microsoft notwithstanding, however, we do step out of bed on to a piece of real estate each morning and not into cyberspace. As a result, the same controversies that have bedeviled landowners since the first Plantagenet paid a peppercorn at Windsortide for the first Thames-front building lot continue — sometimes in novel settings — to bedevil courts today.

Take for example the case of Amaral v. Cuppels, in which homeowners along the ninth fairway sued the neighboring country club over the alarming number of errant golf balls landing in their backyards. Here is a very modern dispute (modern as in, when everybody was poor, only the hated plutocrats who ran the country club lived along the fairway) which proves that common law principles rooted in Britain’s feudal past can trump the most cherished and plausible of Marxist theorizing.

The plaintiffs argued that the unwanted intrusion of golf balls constituted either or both of a trespass or a legal nuisance. One of those theories proved a winner for the homeowners and one did not.

Trespass presupposes the unwanted physical invasion of property. Nuisance involves otherwise lawful activity which, owing to particular circumstances, causes inconvenience or damage to others. Trespass is a kind of strict liability claim, that is, if there is any physical intrusion, the law will presume that the owner has suffered “damages” and order the trespass to stop.

A nuisance, on the other hand, has to be something more than, shall we say, a mere nuisance. It has to involve “unreasonable” and “substantial” interference with an owner’s use of his or her land, such as noxious smells, noise or burning. It may also involve physically contained activities, such as gambling, indecent signs or storing rusting autos or other eyesores on adjoining property. Because the interference has to be unreasonable and substantial, a court is unlikely, for example, to involve itself in a Sunday morning dispute over the neighbor’s use of a leafblower.

There is an exception to the nuisance rule called “coming to the nuisance.” As anyone into sprawl and chemical lawns knows, leafblowers are a nuisance in the common everyday meaning of the word. They are not, however, a legal nuisance, because anyone who moves into a neighborhood of trees and manicured lawns expects to be subjected to the sound of leafblowers. Even if a new resident could persuade a court that the noise was unreasonable and substantial, he would lose because he has, in effect, “come to the nuisance” of leafblowers

On the nuisance claim, the homeowners struck out (to mix metaphors), because the use of the golf course for golfing predated their purchase of the lots. The homeowners knew what they were getting into, the court reasoned, when they bought their homes. They came to the nuisance, so no relief under a nuisance theory.

The court did rule in favor of the homeowners on the trespass claim. A trespass doesn’t just mean a burglar sneaking in the cellar door at night or some kids cutting across your backyard. Not only people, but animals and inanimate objects can trespass. A farmer is liable for trespass if his livestock wanders into the next farmer’s field. It’s a trespass if a crane from a neighboring construction site swings across the imaginary vertical plain of a neighbor’s property line. Ditto tree branches that grow into a neighbor’s yard.

Remember that trespassing is a strict liability claim. There is no balancing of the aesthetic value of a symmetrical tree against the aggrieved neighbor’s right to see sky when she stands on her property line and looks up. As the court correctly concluded in Amaral v. Cuppels, there is also no balancing of a country club’s use of its own fairway for golf with a homeowner’s desire to be free of stray golf balls. The court ordered the country club to either purchase the neighbors’ property (or an easement to hit golf balls onto their property) or close down the ninth hole.

And so it goes in the age of zoning ordinances, homeowners associations, condominium regimes, the National Register of Historic Places, conservation easements, adequate public facilities, traffic studies, Superfund sites, moderate income housing set-asides, wetlands remediation and an overbuilt market for golf communities. The middle class descendents of Karl Marx’s oppressed proletarians rise up against the country club set on a claim of trespass, a legal doctrine cooked up by the first modern masters of exploitation — the British upper class — and the country club set bites the dust.

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