Who Really Owns a Lost Golf Ball? The Court Looks The Other Way by MAURICE CUTLER A few teenagers come onto your golf course in the dead of night, dive into the pond in front of the fourth green and start carting off dozens of abandoned golf balls. You call the police who arrest the ball snatchers and charge them with theft. They go to court and are convicted of theft. Right? Maybe not. A case in British Columbia a few years back resulted in the acquittal of a young person who removed golf balls from a golf course under the circumstances described above. The 1993 case in the Provincial Court of British Columbia at Richmond, demonstrates that a case that may seem simple can get more complicated when heard in a court of law. At least one judge believes there is no legal certainty that the golf balls once deposited in those water hazards on your course belong to the owner of the golf course. The acquittal was based on his view that the balls in question remained the property of the golfers who had hit them there, and not of the golf course where they were abandoned. So anyone taking them is not stealing from the golf course operator. The story begins at Mayfair Lakes Golf and Country Club, a course in Richmond outside of Vancouver. Mayfair Lakes has a number of water hazards on it; totalling about 14 acres of lake surface throughout the golf course. Co-owner Allan May told Golf Business that the course hired divers under contract to collect lost balls from the hazards on a fairly regular basis, about once a week. "We get 20,000 to 25,000 golf balls a year," May said. "Balls in good condition are sold for around $1.25 so there's good money in it. "A guy can go in there at night and may get 500 (balls) in a hour and sell them at swap meets and flea markets.

"What bothers us is that there may be only one or two guys doing it, but then they tell 10 of their buddies. Pretty soon, you've got a hundred guys diving out there. "The first two or three may have known what they were doing and were taking few risks. But when you get a whole bunch more, it becomes much more dangerous when they're operating in eight feet of dark water. It's a matter of how long before something serious happens," May said. "We thought that by taking this to court, we would be able to persuade these kids that this wasn't just a lark, but a serious thing," May said. "There have been cases in Canada where people have drowned while diving for golf balls at night." Towards the end of 1992 the Mayfair Lakes superintendent first noticed evidence of people coming onto the golf course in the night, apparently to take golf balls from the ponds. In the morning there were tracks in the dew on the fairways. "We were also losing trap rakes which were used to sweep the bottom of the ponds and they were stealing garbage containers to take the balls away," May said. The owners became concerned at this trespassing and the potential for theft and vandalism and talked to police about it. "While they were sympathetic about the trespassing, they felt that since there was no major damage or vandalism, it wasn't worth their while to spend a lot of time on it," May said. "We have about three miles of linear property border. The property is totally fenced but people can certainly jump the fence. The police took the view that they would act if they saw anything going on while they were patrolling in the area." Mayfair Lakes hired a security firm on contract to come in and do random checks on the clubhouse, once or twice a night, and do perimeter checks. However, because there was limited access onto the driveway to the clubhouse, anyone at night could see the security people coming from a long way away and there were many places to hide in the dark. The problem continued with more vandalism and signs of considerable activity around the ponds suggesting people were trying to get the balls out in an organized way. "We wanted to pursue it because there was also the more serious associated issue of liability in case someone drowned in the lakes while diving for balls in the

dark. We hoped we were covered on the liability issue by the course having proper fencing and gates and "no trespassing" or "danger" signs. If someone was out there in the dark we felt they were there to do something wrong and that would take care of the liability. "However nobody wanted to find some kid floating on the surface of the lake in the morning," May said. There was some thought that it might be counter-productive to pursue the matter because the numbers of balls being taken were a small percentage of the total collection. There was also the prospect of bad publicity and the appearance of a "big bad golf course jumping on kids who were trying to make a couple of bucks," May said. "However, we decided to engage the investigators to do some sweeps and keep parts of the course under surveillance, including foot patrol. After spending several nights out there 'getting doused by the irrigation' and coming up empty, they found some people and ran them off the course. A few nights later they caught three people with wet-suits. One accused was a juvenile and charged under the Young Offenders Act. May, who was called as a witness, said the Crown Prosecutor thought it would be a straightforward case. "But the judge had a sense of humour. He challenged the crown to prove the ownership of the balls. Under questioning from the judge I gave the rules of golf as they apply to lost balls; once the golfer has given up the search, our position as owners of the golf course is that these lost objects are on our property and are our possessions. "The judge argued the point, however. He brought up the case of people using logoed golf balls with their initials. He also referred to the fact that people do find lost golf balls during play and asked whether they belonged to the golf course." The young accused was acquitted. Judge Davis put it this way: "The Crown says that this is a clear case of theft if there ever was one. (The juvenile accused) was caught red-handed with a bucket of balls, standing in a lake on the golf course in the early hours of the morning wearing a wet suit with his accomplice diving for the balls. What could be more culpable? "I have some problems with the Crown's so-called clear cut case. The law is clear, I believe-that the taking into possession of another's property and intending

to deprive the owner of his property is theft. Does this case fall anywhere close to that definition? "Well, who owned the balls in the bucket? The golf course owned one, and that we know because it had a red stripe around it and that Mr. May says is a range ball! But what about all the others? "It seems to me that if the law is that the title to a golf ball remains with the owner and whoever acquires possession of that ball is responsible for its safekeeping, then it is the original owner who could properly be named in the information. There is no evidence that the balls were, at the time the young person was apprehended, in the possession of the golf course because, the evidence indicates, they don't take possession until the scuba divers turn the balls over to the club and are paid for them! There were no posted notices and there were no warnings of any kind that affect this young person. Is he a thief? He may be. But he did not steal from the golf club. Did he trespass? He may have. But that is not the charge before me." Whether or not the balls belong to the course, the judge asked: "Do you think a golfer could present himself at the Office and say: 'You owe me 10 bucks, I left four golf balls on your course'? I think not. "Oh yes, as to the one ball with the red stripe? There is nothing to suggest that (the juvenile accused) intended to deprive the golf club of their ball. Did a golfer use that ball and did that golfer steal the ball from the club? Is (the accused) stealing from a thief? He may be, but that gives him no better title to that ball than the person who put it into the lake. At best, I would think that (the accused) could be said to be in possession of stolen property, but that is not the charge before me." The judge concluded by ordering that "the ball with the red stripe belongs to Mr. May's golf course and should be returned to its rightful owner. The charge before me is dismissed." May told Golf Business "the problem was that he wasn't charged with trespass which he probably would have been convicted on. Because he was charged with theft, and the ownership of the actual balls was in question, the young man got off." "But when it was all over, the prosecutor didn't think it was worth appealing the decision. The police didn't want to expend any more resources on it and, as owners, private business people, we didn't want to have spend hundreds of thousands of dollars on security to try and stop these people. "So we basically decided to let the whole thing go. I advised our owners to just let it die. There was also the public relations aspect of getting golfers mad by

seeming to be grasping for all of those golf balls they had bought and lost. As against the poor little kids trying to make a few bucks. These 'poor little kids' were pulling 500 balls a night out of the water! "People are still going out there (to dive for balls), but we're not seeing them in the num-bers that we experienced before," May noted. Mayfair Lakes lawyer suggested that one way to get around this ownership question would be to put a notice in the pro shop or on the green fee receipt saying as a condition of play when any golfer hits a ball into the water or anywhere else on the property and loses that golf ball and continues to play on, that golf ball becomes the property of the golf course. "That way we would have had specific ownership and would have no problem. That confirms ownership of the golf ball once it's left the golfer's hands. That means the legitimate owner agrees through the notice on the green fee receipt that when he relinquishes ownership of a lost ball he relinquishes it to us. "We decided, however, not to put the sign up. But we decided to continue to collect all the balls we were collecting. The judge didn't suggest that he was going to charge us with the theft of all of those balls from the golfers. "Anybody with common sense would say: 'If the golfer wants to argue that it's still his ball, that's a point; if the golf course wants to argue that it's their ball since the golfer has lost it on their property, maybe that's a point. But a third party coming in in the middle of the night with the express purpose of trying to find all these lost balls? It's easy to say that he hasn't any right to them." "Because the judge approached his judgement with some humour," May said, it was hard to tell how much of it was tongue-in-cheek. "It wasn't frivolous to the police, they spent lots of time and effort; it wasn't frivolous to the prosecutors; it wasn't frivolous to us and it certainly won't be frivolous to someone who's drowned and found floating around out there."