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SJC-13297

ERIK TENCZAR & another1 vs. INDIAN POND COUNTRY CLUB, INC.

Plymouth. October 7, 2022. - December 20, 2022.

Present (Sitting at Plymouth): Budd, C.J., Gaziano, Lowy,

Cypher, Kafker, Wendlandt, & Georges, JJ.

Trespass. Real Property, Trespass, Easement. Easement.

Practice, Civil, Instructions to jury, Waiver, Directed
verdict, Judgment notwithstanding verdict. Waiver.

Civil action commenced in the Superior Court Department on

July 13, 2018.

The case was tried before William M. White, Jr., J., and
motions for judgment notwithstanding the verdict and for a new
trial were heard by him.

The Supreme Judicial Court granted an application for

direct appellate review.

John B. Flemming (Leon C. Nowicki also present) for the

defendant.
Robert W. Galvin (Anthony J. Riley also present) for the
plaintiffs.
Michael H. Brady, of Virginia, & Thomas K. McCraw, Jr., for
National Golf Course Owners Association, Inc., amicus curiae,
submitted a brief.

1 Athina Tenczar.
 2

KAFKER, J. After purchasing a home next to a golf course

in a subdivision subject to various covenants and restrictions

regarding the operation of the golf course, the plaintiffs, Erik

and Athina Tenczar, sued the golf course, Indian Pond Country

Club, Inc. (Indian Pond), in trespass when their home was hit by

errant golf balls. The jury awarded them $100,000 for property

damage and $3.4 million in emotional distress damages. The

court also entered an injunction forbidding operation of the

course in a manner that allows golf balls on the property.

We conclude that the trial judge erred when he did not

interpret the documents creating the covenants and restrictions

as a whole and in light of attendant circumstances. When read

as a whole, the documents provide that the plaintiffs' home was

subject to an easement allowing for the "reasonable and

efficient operation" of a golf course in a "customary and usual

manner." As the jury were not instructed accordingly, and the

failure to give the instruction was prejudicial, the verdict

must be reversed and the injunction lifted. We decline,

however, to direct a verdict in the defendant's favor, as we

cannot decide as a matter of law that the operation of the

fifteenth hole and the number of errant shots hitting the

plaintiffs' home was reasonable. With golf, some errant shots,

way off line, are inevitable, but a predictable pattern of

 3

errant shots that arise from unreasonable golf course operation

is not. In the instant case, a properly instructed jury are

required to resolve whether the operation of the fifteenth hole,

including the number of errant shots hitting the plaintiffs'

home, was reasonable.2

1. Background. The subdivision in Kingston where the

plaintiffs live consists of homes on both sides of Country Club

Way, which rings a golf course. The subdivision developer,

Indian Pond, built the golf course in 1999 and 2000.3 By the

time the golf course opened in 2001, Indian Pond had already

sold a few of the residential lots surrounding the golf course.

It continued to sell lots over the following years. Lot 4-80,

which would become the plaintiffs' home, was sold in 2014.

a. Declaration and amendment. The town planning board

endorsed the subdivision plan on September 22, 1998, which was

subsequently recorded. On January 5, 1999, Indian Pond recorded

a declaration of covenants and restrictions (declaration), which

set out certain "covenants, restrictions, conditions and

agreements" for the subdivision. Two provisions are relevant

2 We acknowledge the amicus brief submitted by National Golf

Course Owners Association, Inc.

3 Frederick Tonsberg developed the community and operated

the golf course through two companies, High Pines Corp. and
Indian Pond Country Club, Inc. (collectively referred to here as
"Indian Pond").
 4

here. First, paragraph 16, entitled "Golf Course Lots,"

articulated a "perpetual right and easement" on "[a]ny lot

adjacent to or in close proximity to golf course areas" for

golfers to have "reasonable foot access . . . to retrieve errant

golf balls on unimproved areas of such residential lots."

Second, paragraph 20 provided that Indian Pond retained "the

right to create, operate and maintain a golf course and country

club facilities . . . on all portions of the land . . . other

than" forty-eight specified lots (which would be those developed

first). As lot 4-80 was not one of the specified lots, it was

subject to this right.

On January 19, 2001, Indian Pond recorded an amendment to

the declaration (amendment). By this time, the golf course had

been constructed and briefly opened, and additional lots

adjacent to the course were being sold. The amendment applied

to sixty-one lots adjacent to and in close proximity to the golf

course, including lot 4-80, labeling these additional lots as

"golf course lots" and subjecting them to paragraph 16 of the

original declaration; the amended declaration also provided that

golf course lots are subject to Indian Pond's "right to reserve

or grant easements for the benefit of the owner of the golf

course for the reasonable and efficient operation of the golf

course and its facilities in a customary and usual manner." In

addition, lot owners were restricted from building pools or

 5

having swing sets, play sets, or clotheslines without Indian

Pond's consent, and were required to "minimize any adverse

impact to the golf course" when doing work on the lots. The

developer also reserved the right to "maintain, replace, remove

or add to the vegetation on the golf course lots in those areas

in close proximity to the golf course."

Indian Pond sold lot 4-80 to Spectrum Building Co., Inc.

(Spectrum), on March 7, 2014, which built a house on the lot.

Spectrum oriented the house so that the garage -- the side with

the fewest windows -- faces away from the tee. The back side,

facing the fairway, has approximately sixteen to eighteen

windows, and the side of the house facing the tee has five.

Spectrum did not install impact-resistant windows, as used

elsewhere in the subdivision, and removed trees between the

house and the golf course during construction.4

Spectrum sold the lot to the plaintiffs on April 27, 2017.

Both deeds referenced the recorded plan and expressly

incorporated "restrictions and easements of record" that were

"in force." In addition, the sale contract released Spectrum

from liability for "occurrences that are the natural result of

residing adjacent to a golf course including but not limited to

errant golf balls."

4 There are over fifty other homes directly abutting the

golf course, many of which are also built along fairways.
 6

b. The design and operation of the fifteenth hole and

errant golf balls. Lot 4-80, the plaintiffs' home, is located

off the fairway of the fifteenth hole of the golf course. The

fifteenth hole, like the rest of the course, was designed by a

golf course architect named Damian Pascuzzo. At the tee,

players first hit down to a landing area at a lower elevation.

Then, there is a "dogleg left," meaning that the hole is

situated to the left of the landing area. Lot 4-80 is at a

sharper angle left from the landing area than the hole. If, at

the tee, a golfer tried to cut the corner and hit directly

toward the hole, an errant shot (241 yards from the championship

tee, 217 yards from the member's tee, and 192 yards from the

middle tee) could hit the house. There is a bunker (that is, a

sand trap) located to the left of the landing area to discourage

golfers from cutting the corner. In addition, trees form a

buffer between the fairway and the house. However, many of the

trees have been removed since the course was designed, and

because the fairway slopes down from the tee, the treetops and

the tees are at a similar elevation, thereby reducing somewhat

the trees' efficacy as a buffer.

At trial, the parties introduced conflicting testimony

regarding the design and operation of the course. The golf

course architect explained that "there's no building code in

golf course architecture, unlike traditional architecture, so

 7

designers rely on experience and information from other

designers and what is published." He further testified that

"the [fifteenth] hole was designed properly within modern design

standards." He, like the plaintiffs' expert, referenced and

relied on a book by Dr. Michael Hurdzan, setting out a "safety

cone" analysis, a method of assessing safe distances for a golf

course. The architect explained that he used standards that

would keep everything 165 feet left of the center line and 185

right of the center line to establish a reasonable safety zone.5

The architect further explained that these standards were

consistent with the safety cone analysis developed by Hurdzan,

which defined the safety zone via two rays extending out at a

fifteen-degree angle from the tee (centered on the middle of the

fairway). Although the house did not exist at the time the

architect designed the fifteenth hole, it was built further than

165 feet left of the center line and, thus, according to the

architect, within a reasonable safety zone.

The plaintiffs' expert, a golf course accident

investigator, drew the opposite conclusion, testifying that the

house was not within the safety zone, relying on the same

5 As both experts testified, there is a larger buffer on the

right because more golfers are right-handed than left, and they
are more likely to hit off line via a "slice" to the right than
a "hook" to the left.
 8

research from Hurdzan.6 The plaintiffs' expert had expanded the

cone from fifteen degrees to eighteen degrees, to take into

account changes in golf technology in the thirty years since the

book was written that increased the length of golf shots and

their likely dispersion. The expert further testified that,

according to Hurdzan, eighty percent of shots typically fall

within the safety cone.

The experts also disagreed on the other aspects of the

design and operation of the course. The plaintiffs' expert

testified that due to the "visual cues off of the tee" and "lack

of barriers," most golfers aimed to cut or hit close to the

corner, inconsistent with the original design of the hole. He

further testified that the golf course website "recommends that

players aim at the first sand trap bunker that's on the left

side of the fairway." The golf course architect testified to

the contrary, explaining: "We provided a nice, big, generous,

open landing area in the corner . . . to the right side of the

fairway away from the bunkers, because that's where we wanted

them to aim."

6 According to the golf course architect, the plaintiffs'

expert incorrectly drew a center line assuming golfers would aim
toward the left, rather than the intended landing area.
 9

At trial, the plaintiffs testified that 651 golf balls had

hit the property since 2017, breaking eight windows and damaging

the house's siding and a railing on the deck.

After the lawsuit was commenced, Indian Pond implemented a

number of remedial measures suggested by the original course

architect after he was consulted about the dispute.7 Indian Pond

planted three arborvitae trees on the left side of each tee box

and angled the boxes to the right. To signal golfers to hit to

the intended area, it put a barber pole in the middle of the

fairway, moved the out-of-bounds marker on the left side of the

dogleg further to the right, away from the plaintiffs' home, and

expanded the right side of the landing area. Indian Pond did

not, however, install protective netting at the tee boxes,

suggested by a contractor hired by the plaintiffs. In addition,

it did not plant trees along the cart path or move the members'

tee further back, as the course architect suggested, or move the

tees to force players to hit toward the right, as the

plaintiffs' expert suggested.

The effect of Indian Pond's remedial measures was as

follows. In 2018, before the measures were implemented, 130

7 The parties agreed to these measures in lieu of a ruling

on a motion for a preliminary injunction that the plaintiffs had
filed before the 2019 golf season. The agreement was in place
during the 2019 season, but the plaintiffs found the measures
ineffective, so in 2020, the court ruled on the motion (denying
it, as discussed infra).
 10

balls were found on the property, thirty of which struck the

house. After, in each of the next three years, between eighty-

nine and ninety-nine balls were found on the property, nine to

thirteen of which had struck the house.

c. Procedural history. On July 13, 2018, the plaintiffs

sued Indian Pond for equitable relief and money damages. After

the 2019 golf season, the plaintiffs requested a preliminary

injunction to prevent play on the fifteenth hole until Indian

Pond implemented additional remedial measures, such as

installing netting or reconfiguring the hole. The motion judge

denied the request on May 26, 2020. In doing so, she found that

Indian Pond "expressly reserved the right to create and operate

a golf course on the land within the subdivision," explaining

that the golf course was meant "to operate as the centerpiece of

the subdivision."8 A single justice of the Appeals Court

affirmed the denial.

The case was tried in the Superior Court from November 29

to December 6, 2021, on the trespass claim. After the first day

of trial, the plaintiffs sought a ruling from the judge (via a

motion in limine, which Indian Pond contested as premature) that

Indian Pond did not have an easement for golf ball intrusions on

8 The motion judge correctly found that the amendment

created an easement "for the benefit of the golf course for
'reasonable and efficient operation of the golf course . . . in
a customary and usual manner'" (quoting amendment).
 11

the plaintiffs' improved property. The attorney for Indian Pond

responded, "No. 1, . . . the declaration and covenants and

easements and the amendment as a matter of law do establish the

right of the country club to conduct the operation of the

country club in a normal way." He further explained, "No. 2, if

there is some ambiguity [in the language], then recourse can be

[had] to the attend[ant] circumstances existing at the time the

declaration was completed." The judge denied the motion but

indicated that he would revisit the issue later in the trial.

On December 2, the judge revisited the motion and

determined that Indian Pond did not have an easement pertaining

to the improved areas of the property, based on the "plain

language" of the documents. The judge focused only on one

provision, the easement regarding ball retrieval, which allowed

golfers to retrieve golf balls from the unimproved but not the

improved portions of the plaintiffs' property. He did not

address any other provision, most notably the language providing

for reasonable operation of the golf course. Indian Pond noted

its objection, explaining its reasoning, including that the

court should consider not only the language of the declaration

and amendment but also attendant circumstances, and further

stating that it would be moving for a directed verdict after the

close of evidence. In the motion, Indian Pond argued that it

had "specifically reserved the right . . . to operate a golf

 12

course" via the declaration and amendment. Because "[e]rrant

golf ball shots are a natural occurrence in the game of golf,"

Indian Pond argued, the plaintiffs were precluded from bringing

a trespass claim as a matter of law. The judge denied the

motion.9

On the last day of trial, Indian Pond made a written

request for a jury instruction. Its requested instruction

stated that "the [d]eclaration . . . and the [a]mendment to the

[d]eclaration ha[ve] been presented into evidence. The meaning

of these documents and what rights, if any, are established by

them presents a matter of law for the [c]ourt, and only the

[c]ourt, to decide." Therefore, it proposed to instruct the

jury, "[Y]ou cannot consider the terms of the [d]eclaration or

its [a]mendment or any testimony given by any witness concerning

the meaning of the documents." At a sidebar discussion before

closing arguments, the trial judge indicated that he would give

the jury an instruction that he had "determined that the

easement was only extended to the unimproved portions of the

property." The defendant's attorney did not further object, but

clarified: "So I just want to be sure that I know that I'm not

supposed to argue it -- argue the meaning of the easement.

9 After the close of the plaintiffs' evidence, Indian Pond

had moved for a directed verdict on similar grounds, which the
court denied before ruling on the motion in limine.
 13

That's my understanding. . . . I just want to confirm that."

The judge responded, "Correct."

The judge did not give the instruction during the jury

charge at first. In a second sidebar discussion, counsel for

Indian Pond asked what the judge planned to do regarding an

instruction about the covenants and restrictions. The judge

told counsel that he would tell the jury that there was a "right

to retrieve" golf balls. Although somewhat unclear, counsel for

Indian Pond seemed to ask whether "that [was] all," but did not

object. Then, the judge told the jury that "there is an

exhibit, which is the covenants and restrictions document which

you've heard a lot of testimony about . . . and you can read it

to make the determination as to what . . . significance you want

to give it." He stated that it provides a right "for golfers to

be able to retrieve golf balls from the unimproved portions of

the lots," but that "you have to make the determination"

regarding "the improved portions of lots." There were no

instructions regarding the course operation easement, discussed

infra. Indian Pond did not object.

The jury returned a verdict of $100,000 for property damage

and $3.4 million for emotional distress. Evidence of emotional

distress was from the plaintiffs' testimony. Erik Tenczar

testified to the mental exhaustion of worrying about golf ball

strikes and his children's safety, and his observations of his

 14

wife's "hopeless[ness]" and his children's fear, stress, and

nervousness. Athina Tenczar testified that golf ball strikes

interrupted her work calls and woke up her children during naps,

describing the golf balls as "scary" and "chaotic." Her

expectations of being able to use the outdoor space at her home

were unfulfilled. In addition, the jurors saw a video recording

(without audio) that Athina recorded on her cell phone, showing

her crying while talking to golfers who had just broken a

railing on the deck. The court entered judgment on the verdict.

In addition, the court enjoined Indian Pond from "operating its

golf course in any manner" that allows golf balls to go onto the

plaintiffs' improved property.

Indian Pond timely moved for judgment notwithstanding the

verdict (judgment n.o.v.), renewing its motion for a directed

verdict. It argued that it had reserved an "easement to operate

a golf course" via the declaration and amendment, which

permitted errant golf balls to enter the plaintiffs' property.

In addition, it moved for a new trial (and, in the alternative,

for a remittitur of damages), arguing that damages were not

supported by the evidence admitted at trial. The court denied

all three motions. In denying the motion for judgment n.o.v.,

the trial judge explained that from "a plain reading of the

covenants and restrictions," Indian Pond's easement "extended

only to the unimproved portions" of the property.

 15

Indian Pond filed a timely notice of appeal. This court

granted Indian Pond's request for direct appellate review.

2. Discussion. Indian Pond argues that the trial judge

erred by failing to find that it "reserved the right to operate

a golf course in a normal manner on properties adjacent to the

golf course," which includes "the right to have errant golf

balls enter the lots." Indian Pond contends that the judge

incorrectly interpreted the declaration and amendment because he

focused only on the ball retrieval easement and did not consider

the other covenants or examine attendant circumstances to

ascertain the drafter's intent. Indian Pond argues not only

that the jury instructions regarding the easement were incorrect

but also that its motion for a directed verdict and motion for

judgment n.o.v. should have been allowed. In addition, Indian

Pond challenges the amount of damages awarded.

The legal rights of the respective parties set out in the

declaration and amendment are questions of law, which we review

de novo. Martin v. Simmons Props., LLC, 467 Mass. 1, 8 (2014);

Trace Constr., Inc. v. Dana Barros Sports Complex, LLC, 459

Mass. 346, 351 (2011). We conclude that the documents grant

Indian Pond two relevant easements: one for reasonable

operation of the golf course, which includes the flight of

errant balls; and another for golfers to retrieve their balls

from the unimproved but not improved portions of the plaintiffs'

 16

lot. The trial judge, however, misconstrued the declaration and

amendment by instructing only on the ball retrieval easement and

not on the easement providing for the reasonable operation of

the golf course. Because the result of the trial "might have

differed absent the error" in jury instructions, a new trial is

required. Blackstone v. Cashman, 448 Mass. 255, 270 (2007).

a. Waiver. Before addressing the jury instruction error,

we determine whether, as the plaintiffs argue, Indian Pond

waived the issue by failing to object to the instructions

ultimately given at trial. We conclude that there was no

waiver. A party objecting to a jury instruction must "clearly

bring the objection and the grounds for it to the attention of

the judge," but this "rule may be satisfied in various ways."

Selmark Assocs., Inc. v. Ehrlich, 467 Mass. 525, 547 n.37

(2014), quoting Rotkiewicz v. Sadowsky, 431 Mass. 748, 751

(2000). See Devaney v. Zucchini Gold, LLC, 489 Mass. 514, 523

n.19 (2022) (defendant preserved argument despite failure to

make postcharge objection to jury instructions).

Here, the judge was clearly "on notice" of the contested

issue and the defendant's position, as the waiver rule requires.

Selmark, 467 Mass. at 547 n.37. During its opening remarks,

throughout trial, and in multiple motions, the defendant argued

that the declaration and amendment gave Indian Pond the right to

operate a golf course over the plaintiffs' property in a

 17

reasonable manner. The defendant also repeatedly argued that

errant shots are a natural occurrence in the game of golf. The

defendant further attempted to explain to the court that the

declaration and amendment must be construed in light of

attendant circumstances, establishing its right to operate a

golf course in a reasonable manner, including errant shots.

Although there was confusion on the part of both parties and the

judge about what was a question of law for the judge to decide

and what were questions of fact for the jury, the clear thrust

of the defendant's argument was that the relevant documents and

attendant circumstances provided it with a right to reasonably

operate a golf course, which, as explained infra, is a correct

interpretation of the law that the judge ignored in both his

legal interpretation and his instructions to the jury.

The judge ultimately instructed the jury only on the ball

retrieval easement, although he referenced the declaration and

amendment. Although the defendant did not object to the final

instruction, as counsel for Indian Pond candidly disclosed at

oral argument, he "had given up" by that point, after having

received a number of adverse rulings on the matter throughout

the trial. Perceived futility or not, the "better practice"

would have been to place on the record a final objection to the

instructions. Rotkiewicz, 431 Mass. at 751. Nonetheless, we

conclude that the defendant had sufficiently explained and

 18

argued its position that the declaration and amendment

(interpreted in light of attendant circumstances) had provided

it with the right to reasonable operation of the golf course so

as to preserve and not waive its objection when the judge

ignored this correct interpretation of the law in his final

instructions.

b. Course operation easement. We now turn to the

easements that Indian Pond reserved when it sold the residential

lots. "An easement is an interest in land which grants to one

person the right to use or enjoy land owned by another."

Commercial Wharf E. Condominium Ass'n v. Waterfront Parking

Corp., 407 Mass. 123, 133 (1990) (Commercial Wharf), S.C., 412

Mass. 309 (1992). "Where an easement is created by deed . . .

its meaning, 'derived from the presumed intent of the grantor,

is to be ascertained from the words used in the written

instrument, construed when necessary in the light of the

attendant circumstances.'" Chamberlain v. Badaoui, 95 Mass.

App. Ct. 670, 674 (2019), quoting Patterson v. Paul, 448 Mass.

658, 665 (2007). See Sheftel v. Lebel, 44 Mass. App. Ct. 175,

179 (1998).

Paragraph 20 of the 1999 declaration, by its explicit

terms, reserved the right of Indian Pond to operate a golf

course "on all portions of the land" shown on the plan, "other
 19

than those expressly subjected to [the] [d]eclaration."10 The

only lots "expressly subjected" to the declaration were those

forty-eight lots enumerated in the declaration's fourth

prefatory paragraph.11 As the plaintiffs' lot was not among that

set, the plain language of the declaration provided that Indian

Pond retained an easement to operate its golf course that

extended over the plaintiffs' property. Indeed, at that point,

prior to the amendment, the lot could essentially be included as

part of the golf course itself.

The 2001 amendment reflected changes in the golf course and

the subdivision. By this time, the golf course was constructed

and in the process of opening, and additional lots were being

sold. The amendment applied to sixty-one lots adjacent to and

in close proximity to the golf course, including lot 4-80.

Instead of essentially being held in reserve to be included as

part of the golf course pursuant to paragraph 20 of the original

10Although the language of paragraph 20 does not call the

retained right an easement, it plainly describes one. See
Commercial Wharf, 407 Mass. at 133-134 (finding easement where
"Declaration grants to the developer [and its successors] the
right to use a portion of the land owned by [the grantee] for a
specific purpose" and noting that "the label placed upon the
interest in the Declaration is not controlling").

11The specified lots were those that were first developed.

Nineteen of them directly abut the golf course, and the other
twenty-nine are across Country Club Way.
 20

declaration, they were now being considered "golf course lots"

pursuant to an amended paragraph 16.

Consistent with that change, the amendment refined the

course operation easement in respect to these abutting lots. It

did so by providing that the golf course lots are "subject to"

Indian Pond's "right to reserve or grant easements for the

benefit of the owner of the golf course [over these lots] for

the reasonable and efficient operation and maintenance of the

golf course and its facilities in a customary and usual

manner."12 This differed, at least in its extent, from the

declaration's paragraph 20, which provided Indian Pond the right

"to create, operate and maintain a golf course . . . on all

portions of the land," including what was then lot 4-80. This

language allowed Indian Pond to operate the golf course on the

plaintiffs' lot, which was obviously not possible once the lot

was sold. In light of the express language in the amended

paragraph 16 and these "attendant circumstances," Patterson, 448

Mass. at 665, we read the amendment to "reserve" paragraph 20's

course operation easement in regard to these golf course lots

12The amendment also effected a number of other

restrictions designed to fine-tune the relationship between the
now-operational golf course and the adjacent residential lots.
For example, the course retained some control over vegetation on
golf course lots, above-ground swimming pools were not allowed
on any golf course lots, and owners of golf course lots adjacent
to the golf course were not allowed to build in-ground swimming
pools.
 21

but to limit its scope to "reasonable" operation of the course

in a "customary and usual manner."13

Pursuant to amended paragraph 16, lot 4-80 and the other

abutting golf course lots were thus subject to the reasonable

operation of the golf course. Thus, if the errant shots that

hit the plaintiffs' home were the result of reasonable golf

course operation, they were within Indian Pond's rights.14

13We do not read the "right to reserve" language in

paragraph 16 as providing Indian Pond with only an option (a
right to create an easement in the future) rather than a right
to an easement for the reasonable operation of the golf course.
Indian Pond already had provided for an easement to operate a
golf course pursuant to paragraph 20, so there was no need for
an option to create a right it already had. The last provision
in the 2001 amendment also stated that all other terms in the
declaration, including paragraph 20, remained in effect. As the
easement rights that could be granted pursuant to an option
under paragraph 16 were already provided by paragraph 20, this
would render the reasonable golf course operation option in
paragraph 16 essentially superfluous. Estes v. DeMello, 61
Mass. App. Ct. 638, 642-643 (2004), quoting Jacobs v. United
States Fid. & Guar. Co., 417 Mass. 75, 77 (1994) (in
interpreting deed, "[a]n interpretation which gives a reasonable
meaning to all of the provisions . . . is to be preferred to one
which leaves a part useless or inexplicable").

14To be sure, an easement where the scope is explicitly

defined by "reasonable operation" is atypical. It is more usual
to define a specific location for a permitted activity, like a
right of way for beach access. See, e.g., Mazzola v. O'Brien,
100 Mass. App. Ct. 424, 427 (2021). However, we interpret an
easement to "give effect to the express or implied intent of
parties contracting for or acquiring an interest in land."
Taylor v. Martha's Vineyard Land Bank Comm'n, 475 Mass. 682, 690
n.17 (2016), quoting Bateman v. Board of Appeals of Georgetown,
56 Mass. App. Ct. 236, 239 (2002). Here, the express intent was
to create an easement for reasonable golf course operation.
 22

Although the language used in the relevant provision is the

focal point of our inquiry, our interpretation is confirmed by

other provisions in the documents and the attendant

circumstances. Patterson, 448 Mass. at 665. The declaration

provides that "the [d]eveloper[,] in addition to the creation of

a residential community[,] intends to create, operate and

maintain a golf course with country club facilities on a portion

of the subject premises." Via the amendment, the developer

expressly reserved other rights over the plaintiffs' property,

including the right to remove or add vegetation and to prevent

swing sets and play sets, all of which serve and protect its

operation of a golf course. See Commercial Wharf, 407 Mass. at

132 ("The remainder of the Declaration is indicative of the

developer's intent . . ."). The recorded plan is as described

in the declaration, depicting numerous subdivided lots on a road

labeled "Country Club Way," with one large parcel in the center,

suitable for a golf course. See Reagan v. Brissey, 446 Mass.

452, 459 (2006) (details depicted in plan referenced in deed

significant to determination of grantor's intent to create

easement).

Indian Pond's course operation easement necessarily extends

to some number of errant golf balls going onto the servient

property. See Commercial Wharf, 407 Mass. at 138 ("When an

easement is created, every right necessary for its enjoyment is

 23

included by implication"). Errant golf balls are a natural and

inevitable -- and, thus, "customary and usual" -- part of the

game of golf, and that includes golf balls well off the intended

line. Despite the best intentions of golfers, mishits are

common. See Mazzuchelli v. Nissenbaum, 355 Mass. 788, 788

(1969) ("a golf ball when hit by a club constitutes a peril to

anyone within its range in any direction"); Katz v. Gow, 321

Mass. 666, 667 (1947) ("It is common knowledge that a golf ball

does not always fly straight toward the intended mark . . .");

Patton v. Weston Country Club Co., 18 Ohio App. 2d 137, 139

(1969) ("It is generally known that the average golfer does not

always hit the ball straight"). Errant golf balls are to golf

what foul balls and errors are to baseball. They are a natural

part of the game. They demonstrate the difficulty and challenge

of the sport even for the very best players. Despite practice,

instruction, technological improvements, and even good golf

course design and operation -- disputed in the instant case --

golf shots go awry, as a matter of course.

Any ambiguity in the scope of this provision is informed by

the attendant circumstances. See Commercial Wharf, 407 Mass. at

132 ("To the extent that there remains any doubt [in the

interpretation of an easement], we think that the actions of the

parties clarify the arrangement"); Chamberlain, 95 Mass. App.

Ct. at 674, quoting Patterson, 448 Mass. at 665 (easement is

 24

"construed when necessary in the light of the attendant

circumstances"). Any golf course operated in the "customary and

usual" manner will result in some errant shots. Neither golfers

nor course operators can wholly prevent them, as both experts

here testified.

More particularly, the golf course lots, including the lot

at issue, were built adjacent to the golf course. As the

plaintiffs' contract with Spectrum cautioned them, errant golf

balls are the "natural result of residing adjacent to a golf

course."

Thus, the declaration and amendment, their context, and the

attendant circumstances, including the natural consequences of

golf course operation, show that Indian Pond retained an

easement for those golf ball intrusions onto plaintiffs'

property that resulted from the reasonable operation of the golf

course. The jury should therefore have been presented with this

easement and instructed according to its terms. Instead, they

were instructed only on the ball retrieval easement discussed

infra. This was clear error.

c. Ball retrieval easement. Instead of reading the

declaration and amendment as a whole, the trial judge ignored

the provisions discussed supra and focused exclusively on the

ball retrieval easement: "The 'golf course lots' are also

subject to . . . [t]he perpetual right and easement for the sole

 25

and exclusive use of providing reasonable foot access for

golfers to retrieve errant golf balls on unimproved areas of

such lots."

This easement serves a narrower and more specific purpose

than the course operation easement discussed supra. It allows

golfers to retrieve out-of-bounds balls on unimproved property,

while protecting homeowners' enjoyment of their houses and

yards. Golfers can enter part of the plaintiffs' property, but

not all of it. This balances the golfers' and homeowners'

rights, recognizing that golfers will try to retrieve golf balls

if they see them, even if the balls are out of bounds. Cf.

World Species List -- Natural Features Registry Inst. v.

Reading, 75 Mass. App. Ct. 302, 307 (2009), quoting World

Species List -- Natural Features Registry Inst. v. Reading, 15

Land Ct. Rep. 606, 609 (2007) (describing easement that

"represents a compromise between the desired uses of the

easement property -- an open meadow for a view on the one hand

and the potential restoration to a natural landscape on the

other").

Reading this provision in isolation, the trial judge

concluded that this easement alone governed the flight of errant

golf balls as well as their retrieval. The judge apparently

reasoned that if golfers were permitted to retrieve errant balls

only on unimproved portions of the plaintiffs' property, the

 26

errant balls themselves were only permitted there as well. This

inference is not reasonable. While golfers can control where

they walk to retrieve an errant ball, they cannot control where

they hit their errant balls. See, e.g., Mazzuchelli, 355 Mass.

at 788; Katz, 321 Mass. at 667. Thus, the dividing line between

improved and unimproved portions of the lot makes sense for ball

retrieval, but not ball flight.

Reading the documents as a whole, the ball retrieval

easement confirms our interpretation of the reasonable course

operation easement described supra. Implicitly, the language

suggests that balls will go into the improved portions of the

lot as well, but that golfers cannot retrieve them there. It is

reasonable to retrieve them from the unimproved but not the

improved portions of the property. The ball retrieval easement

reinforces our understanding of Indian Pond's intent -- that it

sought to create a residential subdivision with a golf course as

its centerpiece and impose a series of servitudes for the

reasonable and efficient operation of a golf course for the

benefit of the course and its members, while respecting the

rights of the homeowners on the residential lots abutting the

course.

The trial judge thus erred in interpreting the ball

retrieval easement in isolation and applying it alone to the

flight of errant golf balls as well as their retrieval. His

 27

instructions should have also focused on the easement governing

the reasonable operation of a golf course, as discussed supra.

d. The failure to give the instruction. Having determined

Indian Pond's rights and the legal errors in the jury

instructions, we turn to the issue whether the failure to give

the instruction was prejudicial. See Blackstone, 448 Mass. at

270, citing Mass. R. Civ. P. 61, 365 Mass. 829 (1974) ("An error

in jury instructions is not grounds for setting aside a verdict

unless the error was prejudicial -- that is, unless the result

might have differed absent the error"). See also Abramian v.

President & Fellows of Harvard College, 432 Mass. 107, 118-119

(2000) (analyzing remedy for erroneous jury instructions in

terms of prejudice); S. Solomont & Sons Trust, Inc. v. New

England Theatres Operating Corp., 326 Mass. 99, 110 (1950)

("substantial rights of the plaintiffs are not injuriously

affected if the course taken reaches the inevitable result of

the case"). We conclude that the error was prejudicial because

the course operation easement was relevant and applicable to the

complained-of conduct, including at least some errant shots.

In the instant case, the failure to give an instruction

addressing the reasonable course operation easement was clearly

prejudicial. The reasonableness of the operation of the

fifteenth hole was in dispute, but the jury were not instructed

properly on how to decide that question, including how to

 28

evaluate errant shots. Instead, the jury were only instructed

about the ball retrieval easement, which was misleading in

isolation.

More specifically, the easement at issue allows reasonable

but not unreasonable operation of a golf course. The question

then becomes whether the operation of the fifteenth hole,

including the number of errant shots hitting the plaintiffs'

home, was reasonable. The disputed question is not whether

golfers will hit errant shots. They will certainly do so.

Rather, the question is whether the operation of the fifteenth

hole was reasonable, given not only the inevitability of some

widely errant shots but also the number of shots hitting the

plaintiffs' home. Although a golf course operator cannot

reasonably prevent all widely errant shots from hitting a home

next to its course, it can reasonably prevent a predictable and

steady stream of shots from hitting such a home.

Whether the operation of the fifteenth hole was inside or

outside the range of reasonableness was a question for the jury

to decide based on proper instruction. This is because "[t]he

question of reasonableness is a mixed one of fact and law . . .

to be passed upon by the jury, under the direction of the court

in matter of law." Fifty Assocs. v. Tudor, 6 Gray 255, 260

(1856) (discussing easement for light and air in city tenement).

More particularly, the scope of the easement right at issue,

 29

based on the declaration and amendment, is a question of law,

and whether the scope was exceeded is a question of fact. See

Johnson v. Kinnicutt, 2 Cush. 153, 157-158 (1848) (whether

easement was obstructed "depends on facts, which must first be

inquired into and settled by a jury"); FOD, LLC v. White, 99

Mass. App. Ct. 407, 413 (2021) (whether change in development of

parcel would overburden easement was question of fact); Tindley

v. Department of Envtl. Quality Eng'g, 10 Mass. App. Ct. 623,

628 (1980) ("reasonableness of [easement's] use was a question

of fact and created a triable issue which the affidavits did not

obviate" [citations omitted]). Thus, the jury should have been

instructed to decide whether the course was reasonably operated

with respect to the fifteenth hole. See Johnson, supra

(determining as matter of law that easement granted "suitable

and convenient way," but requiring jury to decide whether it was

obstructed). Reasonableness inquiries are well within the

wheelhouse of jurors, who decide such questions as a matter of

course in negligence cases. See, e.g., Reardon v. Country Club

at Coonamessett, Inc., 353 Mass. 702, 704 (1968) (evidence

sufficient to permit jury finding that golf course operator

failed to exercise reasonable care).

In the instant case, despite the absence of a relevant

instruction, this key issue was hotly contested. The golf

course architect and the plaintiffs' golf course accident expert

 30

gave directly contradictory testimony. One concluded that the

course was designed and operated according to modern golf course

standards, and the other contested that determination. In

particular, they disagreed about whether the house was inside or

outside the safety zone. The plaintiffs' expert also opined

that "[t]he basic geometry of the hole, the visual cues off of

the tee, and the lack of barriers or other techniques to protect

the home meant that the [plaintiffs] were going to experience

frequent invasion of golf balls striking their home and landing

in their yard." The defendant's expert disagreed, explaining

how the wide landing area and placement of the bunkers directed

the golfers to aim to the right-side landing area, not to cut

the corner, and that a line of trees buffered the plaintiffs'

house to some extent.15

The reasonableness of the defendant's response to the golf

ball strikes was also contested. Although the plaintiffs

testified that Indian Pond did not respond to their complaints

before they commenced the case, during litigation, the club made

several alterations suggested by the course architect to

encourage players to hit to the intended area on the right.

15The architect did testify that "the daily mowing patterns

had changed" the alignment of the tees with the center line of
the hole and that too many trees had been removed from the
fairway: "in a perfect world, . . . somebody wouldn't have
cleared . . . as many trees as they did along the left side of
the fairway."
 31

These changes reduced the number of balls hitting the house from

thirty in 2018 to around ten in each of the next three years,

and the total number of balls on the property from 130 to around

one hundred. The plaintiffs' expert testified that he had no

objections to the architect's suggested mitigation measures, but

he thought that they "didn't go far enough."

Despite attempts by plaintiffs' counsel to suggest that the

number of balls hitting the home alone was enough to determine

reasonableness, neither party's expert examined the issue of

ball strikes in isolation. The golf course architect rejected

"a rule of thumb" regarding ball strikes and testified: "as far

as I know, there's nobody in the golf industry that has any sort

of standard about what is acceptable and what's unacceptable."

The plaintiffs' expert did not opine on the number of acceptable

or unacceptable strikes but rather focused on the frequency of

ball strikes caused by the house's position inside the safety

cone.16

In sum, the reasonableness of the golf course operation,

including the reasonableness of the number of errant shots

hitting the plaintiffs' home, was the subject of significant

16Both experts testified that the elimination of all errant

shots is infeasible. The course architect explained: "When you
are building a home adjacent to a golf course despite all the
best intentions in the world, there's going to be a golf ball in
your yard or hitting your house." The plaintiffs' expert
agreed, "You may never do [one hundred] percent."
 32

disputed testimony. The jury were not instructed on how to

evaluate this testimony, so their verdict cannot stand.

e. The defendant's request for a directed verdict. By the

same token, Indian Pond is not entitled to a directed verdict or

judgment n.o.v. As discussed in detail supra, there was a

disputed issue of fact regarding whether the golf course was

reasonably operated with respect to the fifteenth hole.

Although some widely errant golf balls are inevitable in the

game of golf, we cannot conclude that the number of errant balls

hitting the house or the yard was reasonable as a matter of law.

As we have previously cautioned, "this court cannot assume

the function of a Robert Trent Jones" and decide on our own the

proper standards of golf course design and operation in the face

of disputed expert testimony. Fenton v. Quaboag Country Club,

Inc., 353 Mass. 534, 539 (1968). Because the jury were

improperly instructed, and there is a disputed factual question

regarding the reasonableness of the operation of the fifteenth

hole, given the number of errant shots hitting the plaintiffs'

home, a new trial is required.

f. The golf cases. Finally, we briefly address the other

golf cases cited by the parties and conclude that they are

readily distinguishable. The two Massachusetts cases cited by

the plaintiffs, Fenton and Amaral, involved golf courses

abutting neighboring homes, but the homes were not part of

 33

golfing communities or subject to easements allowing the

operation of the golf course. See Fenton, 353 Mass. at 538

(finding errant balls to be trespass in absence of any easement

permitting intrusion); Amaral v. Cuppels, 64 Mass. App. Ct. 85,

91 (2005) (same). As the Appeals Court in Amaral explained, "To

the extent that the ordinary use of the defendants' golf course

requires land beyond the course boundaries to accommodate the

travel of errant shots, it is incumbent on the defendants to

acquire either the fee in the additional land itself, or the

right to use the additional land for that purpose." Amaral,

supra. Here, Indian Pond reserved an easement providing for the

reasonable operation of a golf course. Unfortunately, the jury

were not instructed regarding this easement.

The Georgia case relied on by the defendant is also

distinguishable on its face. In that case, the easement

expressly permitted "golf balls unintentionally to come upon

[each] Lot" and provided that "[u]nder no circumstances shall

the . . . Golf Course Owner . . . be held liable for any damage

or injury resulting from errant golf balls or the exercise of

these easements." DeSarno v. Jam Golf Mgt., LLC, 295 Ga. App.

70, 71 (2008). We have no such express, wide-ranging language

regarding errant golf balls here. There is no express easement

addressing and allowing errant golf balls or one protecting the

 34

golf course owner from any damage or injury resulting from the

errant golf balls.

Thus, in the instant case, we are presented with an

undecided issue. We have a home subject to an easement

providing for the "reasonable and efficient operation" of a golf

course in the "customary and usual manner," and a disputed

question not presented to the jury: whether the operation met

that standard, given the number of errant shots hitting the

home.

3. Conclusion. The judgment of the Superior Court,

including the permanent injunction, is vacated, the verdict is

set aside, and the case is remanded for a new trial.17 If the

17As we are setting aside the jury verdict, we need not

consider the defendant's arguments that the jury's award of $3.4
million for emotional damages was excessive. However, we do
note that the plaintiffs provided mostly general and often
metaphorical accounts of their emotional harm ("a nightmare," "a
living hell," and so forth) and no specific evidence of physical
symptoms, diagnosis, treatment, or other expert testimony on the
matter. At least in the context of discrimination cases, we
have not required proof of "physical injury or psychiatric
consultation" to sustain "an award of emotional distress
damages." Labonte v. Hutchins & Wheeler, 424 Mass. 813, 824
(1997), quoting Buckley Nursing Home, Inc. v. Massachusetts
Comm'n Against Discrimination, 20 Mass. App. Ct. 172, 182
(1985). However, the amount of the verdict must still be
supported by the evidence. See DaPrato v. Massachusetts Water
Resources Auth., 482 Mass. 375, 393 (2019), quoting Labonte,
supra ("It is an error of law for a court to allow an award of
damages for emotional distress that is 'greatly disproportionate
to the injury proven or represented a miscarriage of justice'").
See, e.g., Labonte, supra at 824-825 (requiring remittitur of
award of $550,000 in emotional damages where plaintiff sought
treatment for depression after discriminatory firing, but
 35

case is retried to a jury, the jury shall be instructed on the

easements as a whole, and not on the ball retrieval easement

alone, as it was in this case. This will require the jury to

determine whether the easement allowing for "the reasonable and

efficient operation and maintenance of the golf course and its

facilities in a customary and usual manner" encompassed the

particular operation of the fifteenth hole, including the

inevitable errant shots that golfers hit while playing the hole.

So ordered.

subsequently improved). See also Fenton, 353 Mass. at 539

(upholding $2,650 in damages for emotional harm caused by
trespass of errant golf balls for over ten years).