Goldmann, Freund and Conford. The opinion of the court was delivered by Conford, J.A.D.
Defendant was enjoined in the Chancery Division from the use of the third tees (one men's, the other women's), as presently located on its golf course. Plaintiffs' home is some 50 feet from these tees, their rear property line somewhat closer. The trial court found that the use of the tees for golfing purposes involved "the extreme invasion of the peace and quiet of the plaintiffs' home," and also, in effect, constituted a denial to plaintiffs of the right to the use of a lake on the defendant's property in which plaintiffs were deemed to have certain privileges by virtue of arrangements hereinafter described.
Defendant's golf course, as well as plaintiffs' property, are part of a combination residential and "country club" development in the boroughs of Ramsey and Allendale, Bergen County, planned and executed during the 1940's by a New York organization incorporated as National House and Farms Ass'n., Inc. (referred to hereinafter as "National"). Exhibit P-17 in evidence is a map which shows the projected layout. A nine-hole golf course was laid out in the center of the western portion of the development, and this is shown on the map to be surrounded by numbered residential lots on all sides of it. There are also two or
three lakes and other recreational facilities. The plan was that every purchaser of a home or lot in the development had the right of membership in the country club and the common use of its facilities. Later non-residents of National's development tract were permitted to be admitted to club membership.
The defendant was incorporated to operate the golf club, and in 1945 National conveyed to it the golf course and recreational areas, including the lakes. The deed was made subject "to the riparian rights of present or future owners" of certain lots, including those now owned by plaintiffs. Plaintiffs purchased lot 53, block 7, as shown in the map aforementioned, from National in 1949, and also two adjoining lots after they built their home on lot 53. The map, which indicates the general layout of tees and holes on the golf course, shows no tee at the present location of the third tees. Plaintiffs' deeds grant no riparian or other rights in relation to any body of water. The property conveyed to them lies close to the northern end of Mirror Lake, a part of defendant's holdings. Their property line does not, however, go to the lake shore. There is an intervening narrow strip of land, title to which was retained by National and conveyed to the defendant in 1955. Since then defendant's golfing members have used this strip in getting access to the third tees. Previously they walked across plaintiffs' land.
The present men's third tee was constructed in 1948. It was used continuously thereafter, but plaintiffs say they did not notice it until they were actually erecting their home in 1950. Mr. Sans testified that an officer of the club told him at the time that he could stop the use of the tee at any time. The placement of the third tees where they now are situated was done in order to give the course a "water hole" of par-4 length. The hole is played across the narrow end of Mirror Lake. If the tees were removed to the other side of the lake, the water hazard would be removed and the distance to the cup would be considerably shortened. The hole would become par 3, and it was testified on behalf of defendant that this would be undesirable
from a golfing standpoint. The first year or so after plaintiffs moved into their new home they made no complaint about use of the third tees, but as time went on and the membership of the club increased the extent and nature of the use of the tees became increasingly offensive to plaintiffs, and they complained to the defendant's officers frequently, but to no avail until the agreement of April 1955, mentioned hereinafter, was entered into.
The incompatibility between normal family use of plaintiffs' home and the club use of the third tee has been manifested in many ways. The course is played during the entire day, and summer play, particularly on week-ends, is from 6 A.M. to 8 P.M. Plaintiffs are frequently awakened by golfers in the early mornings. At times there are as many as 12 people at the tee, close to plaintiffs' back yard, waiting their turn to "tee off." When plaintiffs' young children play around the house they are scolded by the golfers, who require absolute silence and immobility of everything in sight during the ritual of the pre-swing address of the ball, and, of course, during the critical moment of the swing itself. On one occasion an irate golfer clubbed plaintiffs' dog unconscious for barking while on plaintiffs' own property, when their child could not quiet the animal. Sometimes golfers bring their own dogs along and these attack plaintiffs' dog. The diverse sounds and voices of people at or near the tee at all hours envelop plaintiffs' home continuously. They cannot use their own back yard, which faces the lake, in any degree of privacy. Plaintiffs' leisure hours coincide with times of peak attendance by golfers. When they water their lawn golfers complain because the adjoining footpath becomes muddy. Mr. Sans testified: "We never feel relaxed or free at home. There is always someone in our back yard." Mrs. Sans has become so distraught over the situation as to require medical treatment.
Plaintiffs also complain that their children cannot boat or skate on the lake with freedom, for fear of being struck by golf balls. They maintain this interferes with their right to recreational use of the lake.
After many complaints by plaintiffs a written agreement was entered into by the parties April 8, 1955, under which the third tees would continue to be used by the club temporarily at reasonable hours, the agreement stating that the parties anticipated that plaintiffs would acquire the lakefront strip and the club would later that year extend the course and remove the tees. The latter steps never eventuated. Defendant decided it would cost too much to extend the course. Moreover, it acquired the strip from National ...