ANDERSON v. SOUZA

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District Court of Appeal, Third District, California.

ANDERSON et al. v. SOUZA et al.

Civ. 7913.

Decided: June 01, 1951

H. E. Gleason, Donald B. Fowler, Turlock, for appellants. Brown, Brown & Bacon, Modesto, for respondents.

Plaintiffs below, more than fifty in number, brought this action against defendants to recover damages by reason of the alleged creation and maintenance of a nuisance through the operation of an airport, and for injunctive relief forbidding the defendants to operate the airport as such. The court, adopting in the main the allegations of the complaint, made the following findings of fact: That since April 19, 1946, plaintiffs were the owners of and resided on real property located close to the airport; that during that period of time the defendants operated the airport, defendants Souza and wife being the owners of the real property on which the airport is located; that in the course of the operation of the airport numerous aircraft of various types taxi, take off, circle, buzz, cruise about, maneuver, glide, climb, bank, turn, stunt and engage in acrobatics, and land on, from, and to said airport; that this aerial activity is continuous and frequent throughout the daylight hours and that the aircraft are operating with the consent, encouragement and solicitation of the defendants; that many of the airplanes so operated belong to defendants and are operated by them; that the airplanes fly over the homes of the plaintiffs at heights varying from 25 to 800 feet and in passing over or near said homes create such a tremendous noise that the same interferes with the lawful use, enjoyment and occupancy of the dwellings to the great disturbance and nervous upset of the plaintiffs; that because of said noises plaintiffs and members of their families are unable to sleep when planes from the airport are operating, to their great physical detriment and mental anguish; that normal conversation is interrupted; that plaintiffs have great difficulties listening to radio programs and in general the enjoyment of their homes in materially decreased; that plaintiffs, knowing that numerous airplane accidents have occurred throughout the country and that several have occurred at the airport, suffer great fear and apprehension when the airplanes pass over their homes at low altitudes; that defendant Earlandson operates a flying school at the airport, and the student pilots using airplanes belonging to Earlandson fly at low altitudes over plaintiffs' homes, but that only six plaintiffs were affected by the conduct of the student pilots and that, as to the six, such conduct placed their lives and property in great jeopardy and caused them to fear greatly for their property, their lives and the lives of their loved ones; that the real property of the same six plaintiffs by reason of said conditions has depreciated in value, but that this was not true as to the other plaintiffs; that plaintiffs have often requested and demanded of defendants that they cease operating the airport and the airplanes in the manner found, but that defendants have continued to operate them in said manner continuously from April, 1946, to the time of trial; that more airplanes are operating from the field each month and that still more airplanes will operate from the field in the future; that defendants by their acts have caused irreparable injury to plaintiffs and that irreparable injury will be done to them in the future if the defendants continue with their acts as found; that none of the plaintiffs have been damaged except the same six and that they have been damaged as follows, B. E. Anderson and wife jointly in the sum of $500, Arvid G. Anderson and wife jointly in the same sum, and Jack Harlan and wife jointly in the same sum; that plaintiffs have no plain, speedy or adequate remedy at law. As conclusions of law from the facts found judgment was ordered: 1. Enjoining and restraining the defendants from operating the airport on the premises described in the complaint; 2. For damages in the sum of $500 to each of the three couples named above. Judgment was entered accordingly. Motion for new trial was made and denied. From the judgment the defendants have taken this appeal.

We shall discuss the contentions of appellants seriatim as they advance them in their briefs. Appellants first attack the finding of the court that appellants Souza and wife, along with appellant Earlandson, operate the airport. Herein it is claimed on behalf of Souza that it is Earlandson who operates the airport and that Souza, while he owns the property where the airport is located, has leased the airport to Earlandson, and that, therefore, under such cases as Gould v. Stafford, 91 Cal. 146, 27 P. 543; Wiersma v. City of Long Beach, 41 Cal.App.2d 8, 106 P.2d 45; Mundt v. Nowlin, 44 Cal.App.2d 414, 112 P.2d 782; and Meloy v. City of Santa Monica, 124 Cal.App. 622, 12 P.2d 1072, the nuisance complained of is created and maintained by Earlandson alone. These cases lay down the well-known rule that a landlord is not responsible to other parties for the misconduct or injurious acts of his tenant to whom his estate has been leased for a lawful and proper purpose when there is no nuisance or illegal structure upon it at the time of the leasing. We think, however, that in view of the evidence here this rule and the cases declaring it are not controlling, for it was shown that Souza owned the land, constructed the field, obtained the county permit, flew his own plane from and to the field and retained portions of the field's facilities, that is, the hangars and tie-down space for which he collected rent. Earlandson's rights were to operate his flying school, sell gas and repair planes. Earlandson, therefore, was not in sole charge of the field and it is a fair inference from the evidence that Souza at least joined with Earlandson in permitting public use of the field, and, in short, so participated in the operation of the field that the court's findings that he and Earlandson operated the field are substantially supported by the evidence.

There is next attacked the finding that ‘many airplanes' operating from the airport were owned and operated by appellants Souza and Earlandson as being contrary to the evidence. We think this finding is sufficiently supported by Souza's testimony that he owned and operated a plane and by Earlandson's testimony that he owned and operated four airplanes, plus one which he operated for another owner. Whether such numbers constitute many or few is a comparative matter, but Earlandson's planes were shown to have been greatly used in the conduct of his air school and in view of the fact of dual control and operation of the port by the two men we find nothing erroneous in the challenged finding.

Next, appellant challenges the court's finding that the real property of six of the plaintiffs had deteriorated in value by reason of the conditions which the court found to exist. While no witness testified to the exact amount of depreciation in value, measured in dollars and cents, this general finding that depreciation in value has occurred is amply supported by the evidence that the property of these couples was so situated with relation to the normal take-off area as to render their homes inhabitable only under most trying and occasionally terrifying conditions. It is a fair inference that homes so located, which were there, as were these, before the airport began to operate, would be much less desirable as places of habitation than residences not so affected and that there would be a material depreciation in value.

Appellants next contend that, whereas the court found that only the three couples had suffered damages measurable in money, it also found that all of the respondents had been irreparably injured by the conduct of appellants and that there is a conflict between these findings. We think, however, that the findings are not necessarily inconsistent. The general allegations as to injury suffered which have been found to be true by the court are supported by the testimony showing the existence of a nuisance with respect to all respondents and these findings do not conflict with findings that only the three couples are entitled to an award for damages in the way of money.

The term ‘irreparable injury’ authorizing the interposition of a court of equity by way of injunction means that specie of damages, whether great or small, that ought not to be submitted to on the one hand or inflicted on the other. Edelman Bros., Inc. v. Baikoff, 277 Ill.App. 432. See, also, Greenfield v. Board of City Planning Commissioners, 6 Cal.App.2d 515, 518, 45 P.2d 219; Espenscheid v. Bauer, 235 Ill. 172, 85 N.E. 230, 232.

Appellants contend that the court erred in decreeing any judgment either for damages or by way of injunctive relief against defendant Souza. This is but another aspect of the contention previously discussed, which was based upon the theory that Souza, having leased the airport, did not operate the same, and we think separate treatment is unnecessary. What we have said heretofore disposes of this contention.

Appellants contend that the court erred in allowing one of the appellants to testify from and read verbatim into the record a memorandum he had prepared without requiring, as they contend, a proper foundation therefor to be laid. It appears that the length of time covered by the testimony taken was quite considerable, in fact, several years in extent. The witness had from time to time over a considerable period of time and on observing airplanes flying low over his home or near to it and over his property made notations in whatever way was open to him at the time, consisting of a description of the plane, its number and such like matters. He made these notations on scratch paper he may have had with him at the time. Sometimes he entered them upon fence posts and even at times inscribed them on the surface of the ground. He then collected these memoranda and, as he testified, copied the same into more permanent form and either from these latter writings or from other writings copied from them in turn, he was permitted to testify over objections. Section 2047 of the Code of Civil Procedure covers the matter. It provides that a witness is allowed to refresh his memory by anything written by himself or under his direction at the time when the fact occurred or immediately thereafter or while still fresh in his memory, if he knows the same to be correctly stated in the writing. He may also testify from a writing, though he retain no recollection as to the facts, but such evidence must be received with caution. As said in Marron v. Great Northern Ry. Co., 46 Mont. 593, 129 P. 1055, 1057, referring to a similar provision in the codes of that State: ‘This section comprehends two classes of witnesses. The first class includes the witness whose memory can be refreshed by reference to the memoranda. The second class includes the witness who does not retain any recollection of the particular facts recorded in the memoranda, even after he examines the entries which he made himself. The witness of the first class may refresh his memory, and, having done so, may then testify independently of the memoranda. The witness of the second class may testify directly from the memoranda. But before either one will be heard at all these preliminary facts must be made to appear: (a) The entries must have been written by the witness himself, or under his direction; (b) They must have been written at the time the facts occurred, or at a time when the facts were fresh in the witness' memory; and (c) The witness must have known at the time the entries were made that they correctly stated the facts.’

An examination of the record discloses that the witness here did make the notations himself and he testified that he made copies of these notations. He was not asked directly either on direct or cross-examination whether he copied them correctly, but when a witness testifies under oath that he made a copy it is going far afield to say that such testimony is not equivalent to saying that he copied the memoranda correctly since it would not be a copy unless it was correct. While it is better, of course, to properly and fully qualify the witness who is to testify from or with the aid of memoranda, nevertheless we do not think that what happened here would justify reversal if, indeed, error at all was committed. As to his reading the memoranda into the record, that is permitted when the code says: ‘So, also, a witness may testify from such a writing, though he retain no recollection of the particular facts.’ Where proper foundation has been laid the fact that the writing does not refresh the recollection of the witness does not prevent him from testifying from the writing and if his recollection is not refreshed there would be no other way to testify ‘from the writing’ save to read from it verbatim.

Appellants contend that the court erred in not granting their motion for a nonsuit as to plaintiffs who did not testify in the action. As we have said, there were some fifty odd plaintiffs. Only six of them appeared in court and testified. But the testimony was received in behalf of all. They were the plaintiffs' witnesses and the fact that these witnesses were themselves plaintiffs did not limit the benefit of their testimony to themselves alone. The conditions they were describing were to some extent common to all the plaintiffs since it described conditions such as low flying, stunting, indulging in acrobatics and the like which would affect those residents in the immediate vicinity of the airport and there was testimony that placed the other plaintiffs within that radius.

The final contention made by the appellants is that the court erred in restraining defendants from operating an airport on the premises described in the complaint. This contention presents a difficult problem and to its discussion a fuller statement of facts than has heretofore been made is desirable. The defendant Souza owned 42 acres of land within one mile of the limits of Turlock. In 1946 he discussed with federal authorities the suitability of this land as an airport site. Encouraged by what he was told, he proceeded to lay out a landing strip and by locating a strip diagonally was able to achieve an airstrip 2,000 feet in length, just 200 feet beyond the minimum permitted by the United States Civil Aeronautics Administration. He constructed a strip 300 feet wide, oiling and smoothing the surface of the ground. Along the southerly line of his property and at the southerly end of the strip was a public road. The property bounding his property on the north was owned by the Andersons, their son and his wife, and the Harlans. A great deal of testimony concerning the location of the homes of these respondents and the location thereof with regard to the airport was given, along with the use of a map. This map appears to have been introduced in evidence, but it and other exhibits which would have made the task of this Court easier in reviewing the record have not been supplied. It seems they have been lost. One of the Anderson couples does not reside near the airport, but owns an interest in the property of the other Anderson couple. The Anderson home is about 500 feet from the northern boundary of the strip and about 250 feet from the center line of the strip as extended. The Harlan house is about 500 feet from the northern end of the strip and about 300 feet distant from the same center line. North of the Anderson and Harlan properties and 660 feet from the north line of the airfield there is another public road. The public roads mentioned parallel the north and south boundaries of the airfield. Some of the plaintiffs reside northerly of this northernmost road. Bounding a part of the Souza property on the west there is another public road across which lie the residences and property of some of the other respondents. Others bound the field on the east. On the southerly road defendants had signs posted directed to vehicular traffic on the road reading as follows: One sign read, ‘Stop, Aircraft Crossing.’ There were two of these Stop signs, apparently placed to warn vehicular traffic going in either direction upon the road. Between them was a sign reading, ‘No Parking Between Signs—Look Out for Low-Flying Aircraft.’ A sign directed to aircraft in this same vicinity read, ‘All Aircraft Keep 20 to 30 Feet Above the Road.’ There is considerable evidence that these warnings were appropriate and that aircraft, in fact, flew over this road onto the airstrip at elevations even below the 20 to 30 feet which the sign requested. The airstrip runs approximately north and south; the generally-prevailing wind is from the north and hence most craft take off in that direction and on the other hand, and for the same reason, generally land from the south. As a part of his construction of the airport Souza invested altogether in land and buildings some $80,000. The value of the homes and residences of the respondents was not the subject of testimony. Although no considerable complaint seems to have been made while the airport was being constructed, the opposition and complaints began very shortly after the field was put in operation. The homes of the respondents were there before the airport was constructed. A flight pattern was laid out, after consultation with the federal authorities, which may be briefly described as follows: A plane taking off into a north wind would rise from the strip and fly over the property beyond its limits until it reached an elevation of approximately 500 feet, at which time it would turn to the west at a right angle, then turn at a right angle south, again turn at a right angle east and then make a landing on the airstrip from the south. The pattern was approximately rectangular. A similar pattern would be followed when a south wind was blowing and the planes took off toward the south, this pattern being the reverse of the one just described. Planes desiring to leave the pattern would make the first right angle turn and then proceed away from the pattern as desired. Incoming planes would fly into the pattern and follow it to a landing. There apparently was no restriction as to the size or type of aircraft permitted to use the field and although the airfield was privately owned, nevertheless it was available to the flying public. At frequent intervals planes belonging to business enterprises would arrive and depart from the field in pursuit of their private concerns. Souza testified that there were approximately eighteen to twenty planes hangared or tied down at the field as a fair average. The testimony as to the frequency of flight ran all the way from 150 flights per day down to 40 or 50. Most of this flying was during the daytime, beginning around six o'clock in the morning and continuing into the evening, but there were apparently no time limitations and planes would arrive and depart during the night, make-shift landing lights being provided. It appears that a light plane taking off to the north would become airborne well before reaching the end of the runway. A heavier plane would make a longer run and would sometimes pass between the Harlan and Anderson homes with little altitude. Supportive of the court's findings that a nuisance existed, in addition to what we have already referred to, we select the following testimony which, although contradicted to some extent by witnesses for appellants, yet must here be taken to be true. Mrs. Neva Harlan testified that 45 or 50 planes used the field daily, many of them flying low over her home; that she was unable to rest during the day because of the disturbance; that the noise was so loud she could not understand normal conversation or hear the radio or use the telephone when planes went over; that night flying awakened her; that the planes kept the family awake and so upset they could not get back to sleep after being awakened; that the children were awakened early in the morning; that when friends visited the noise drowned out conversation. Arvid Anderson, who resided away from the airfield, but owned an interest in his son's property bordering the field on the north, was accustomed to work about the 10-acre farm, of which it consisted. He testified that as he worked the planes sometimes made him so jumpy he had to leave; that he had to be on the constant look-out because they came in so low that it was really dangerous; that once while running a tractor a plane came in so low that he rolled off the tractor because he was sure it was going to strike him; that once a plane zoomed over him so low that he put his pitchfork up and felt sure the fork would hit the plane; that he had noticed planes crossing from the airfield over his property at heights of 10, 15 or 20 feet; that some of the lighter planes went higher, but he had seen the larger planes skim the top of the 6-foot fence posts along his southern boundary; that while he had wanted to put a home for himself on the place he could not do it and could not use the place for poultry or turkeys because of the low flying; he was afraid to live on the place. Irene Anderson, who lived in the Anderson home, testified that she had made a count of the planes flying over on certain dates; that on May 15, 1948, just before the case was tried, 110 came over, on May 16th, 105, on Saturday, May 22d, 101, on Sunday, May 23rd, 140; that during week days there would be 50 a day; that flights generally began at six o'clock and continued until dark; that the planes greatly affected her enjoyment of her home and family life, made her nervous, gave her digestive upsets, scared the children. She said ‘We are just helpless, we don't have a home, we are without anything, nothing to fight for; we are just helpless where we are; it has just been Hell’; that she could not enjoy radio programs because of the continual noise; that she couldn't use the telephone, nor enjoy the visit of guests or relatives. She said ‘when they come there to see us it is Zoom! Zoom! Zoom! just like that, all the time’; that she was awakened early in the morning and when awakened at night could not get to sleep again; that she had no rest and had no peace at all; that the children were scared many times until they were hysterical and would run into the house screaming and crying; that her whole home was upset; that when the airport started operating she was well. She said ‘The noise from the airplanes, when I hear them from the beginning, when they start coming off the runway and into the field, they start the motors up, I hear them, they come closer and closer to the house and I see them and my stomach goes—I don't know, it just goes upside down sometimes, and sometimes I vomit. My stomach feels like the insides are just turned upside down—my health is—what are we going to do?’ There was considerable testimony along the same general lines. This record supports the conclusion of the trial court that the operation of the field and the flying of the planes as usually and normally occurring constituted a private nuisance and that in view of the increasing use of the field this nuisance would continue and be aggravated. Both Souza and Earlandson testified that they had continually done all that they could to prevent improper flying and it is a fair inference that they either cannot or will not abate the nuisance themselves. This is significant in view of the fact that the action had been filed on August 7, 1947, and the case was tried beginning May 18, 1948.

An airport is not a nuisance per se, but that it may become a nuisance either because of unsuitable location or improper operation or both has been clearly decided. Thrasher v. City of Atlanta, 178 Ga. 514, 173 S.E. 817, 99 A.L.R. § ; 2 Corpus Jur. Sec., Aerial Navigation, § 29, p. 909. Our Legislature in 1947 passed a State Aeronautics Commission Act. It therein declared that, ‘flight in aircraft over the lands and waters of this State is lawful, unless at altitudes below those prescribed by federal authority, or unless so conducted as to be imminently dangerous to persons or property lawfully on the land or water beneath.’ State Aeronautics Comm. Act, Sec. 2(d), Ch. 1379, Stats.1947, Deering's Gen.Laws, Act 151a. While this act had not gone into effect when the action before us was begun it went into effect approximately one month thereafter and since the injunctive processes of the court are prospective in operation it was applicable to this feature of the case. The licensing and regulation of airports, subject to federal control, is committed by the act to the State Aeronautics Commission. Nevertheless the licensing of the airport by the commission does not confer the right to so operate the port as to constitute a private nuisance to surrounding property owners.

‘* * * A license granted by a state aeronautics commission for the operation of an airport does not confer upon the proprietor thereof the right to operate it in such a manner as to constitute it a private nuisance.’ 2 C.J.S., Aerial Navigation, § 29, p. 909.

While apparently no formal license had up to the time of trial been granted to this airport, neverthelesss since it was operative prior to June 30, 1947, it comes under the so-called ‘grandfather clause’ of the State Aeronautics Commission Act, Section 17, which provides that ‘Airport site approvals shall be granted and airport permits shall be issued for any improved airports in use or ready for use on June 30, 1947.’ We shall treat the airport as a licensed or permitted airport.

Further, as to the effect of regulations concerning flying operations, it has been held that such regulations do not determine the rights of the surface owners as to nuisance. Swetland v. Curtiss Airports Corp., 6 Cir., 55 F.2d 201, 203, 83 A.L.R. 319, a ruling which is in line with the general principle above stated that permits and licenses are not to be considered as granting leave to maintain a private nuisance. It is not controlling that the federal government has declared that the United States of America possesses and exercises complete and exclusive national sovereignty in the air space above the United States, Title 49 U.S.C.A. § 176(a) and that our Legislature has said ‘It is further declared that sovereignty in the space above the lands and waters of this State is declared to rest in the State, except where granted to and assumed by the United States pursuant to a constitutional grant from the people of the State’, State Aeronautics Comm. Act, Sec. 2(b), for it must be said that these declarations were not intended to and do not divest owners of the surface of the soil of their lawful rights incident to ownership.

‘There is no definite yardstick that may be used in determining how low an airplane may fly over the property of others in landing or taking off; however, flying at low altitudes incident to landing and taking off may constitute trespass, as it may cause more than mere apprehension of injury. And, extensive low flying, causing unreasonable annoyance to occupants of land below, is a substantial interference with enjoyment of the property.’ Brandes v. Mitterling, 67 Ariz. 349, 196 P. 2d 464, 467.

The regulatory provisions of the State Aeronautics Commission Act and the federal laws referred to do not supplant the ancient common law and long-established statute law declaring that nuisances may be abated at the suit of those injured thereby. Restatement of the Law of Torts, Section 194, provides:

‘An entry above the surface of the earth, in the air space in the possession of another, by a person who is traveling in an aircraft, is privileged if the flight is conducted

‘(a) for the purpose of travel through the air space or for any other legitimate purpose,

‘(b) in a reasonable manner,

‘(c) at such a height as not to interfere unreasonably with the possessor's enjoyment of the surface of the earth and the air space above it, and

‘(d) in conformity with such regulations of the State and federal aeronautical authorities as are in force in the particular State.’

But: ‘Under the rule stated in this Section, only those flights are privileged which are conducted at such a height as not unreasonably to interfere with the possessory interest in the land. Thus, a flight, although otherwise conducted in a reasonable manner, for a legitimate purpose, and in conformity with all applicable local regulations, if conducted at such a low height as to cause reasonable fear or substantial annoyance to occupants of the land or to frighten cattle or other animals thereon in such a way as to cause them harm, or to endanger the surface of the land, or persons, trees, structures or other things thereon, or to interfere with the possessor's legitimate use of the air space, is not within the privilege.’ Comment on Clause (c) of Sec. 194.

As illustrative of the general trend of judicial decisions upon the subject hereof see the following: Thrasher v. City of Atlanta, supra (judgment reversed with directions to issue injunction against continued spreading of dust in excessive or unreasonable quantities over adjoining residential property; Burnham v. Beverly Airways, Inc., 311 Mass. 628, 42 N.E.2d 575 (decree affirmed, upholding injunction against flying below height of 500 feet over residence 2800 feet from city-controlled, but privately-operated, airport); Mohican & Reena, Inc. v. Tobiasz, 1938 U.S.Av.Rep. 1 (injunction granted at suit of owner of summer camp for children against flying below 1000 feet within 500 feet of camp); Vanderslice v. Shawn, 26 Del.Ch. 225, 27 A.2d 87 (residents entitled to an injunction against owners of private airport from permitting flights at less than 100 feet of adjacent dwellings); Alhambra Airport case, 13 J. of Air L. & Comm. 138 (injunction at suit of taxpayers and board of education prohibiting further use of private airport for pilot training and limiting future use to emergency landings and actual business needs of two aircraft manufacturing plants located at airport); Dlugos v. United Air Lines, 1944 U.S.Av.Rep. (Ct.Comm.Pl.Pa.Lehigh Co., 1944) (airline enjoined from operating planes at altitude below 100 feet over plaintiff's fields adjacent to municipal airport, on days when plaintiff engaged in farming such fields, not to exceed ten days during following year, provided five hours' written notice given airline at its office); Swetland v. Curtiss Airports Corp., supra (airport completely abated by circuit court, notwithstanding refusal of trial court to do so.)

A further contention is made that the trial court still was not authorized to enjoin the further operation of the airport and necessarily must have limited its injunctive order to prevention of the nuisance existing; that this could be done without forbidding all operation of the airport. Injunctive process ought never to go beyond the necessities of the case and where a legitimate business is being conducted and in the conduct thereof a nuisance has been created and is being maintained, the relief granted should be directed and confined to the elimination of the nuisance, unless under the peculiar circumstances of the case the business, lawful in itself, cannot be conducted without creating a nuisance and violating the rights of contiguous property owners. In Vowinckel v. N. Clark & Sons, 216 Cal. 156, 162, 13 P.2d 733, 736, in a case involving a decree ordering defendant to cease operating a number of pottery kilns, the court said: ‘In the present case the court appears to have given due consideration to the situation of the defendant. This is apparent from the fact that it refused to abate entirely the defendant's operations and granted the relief sought to the extent necessary to preserve the rights of both parties. In other words the court in the exercise of its equity powers, has compared consequences and has considered the injuries resulting to each party, on the one hand if the injunction be wholly denied, and on the other if it be granted. The court, from the evidence presented, gave heed to the rule that in a proper case it will not enjoin the conduct of the defendant's entire business, where such business is not a nuisance per se, if a less measure of restriction will afford to the plaintiff the relief to which he may be entitled. McMenomy v. Baud, 87 Cal. 134, 26 P. 795; Tuebner v. California St. R. R. Co., 66 Cal. 171, 4 P. 1162; Williams v. Blue Bird Laundry [supra], 85 Cal.App. 388, 259 P. 484; McIntosh v. Brimmer [supra], 68 Cal.App. 770, 230 P. 203.’

In this case it is apparent from the memorandum opinion written by the able trial judge, on motion for new trial, that it was his conclusion nothing short of complete abatement would preserve the rights of respondents and he attributed this principally to the shortness of the runway. The learned trial judge said: ‘The third contention, that the injunction was too broad, is a more difficult question. Ordinarily it is true that a lawful act should not be enjoined; that all that should be enjoined is the commission of the act in such a way as to constitute a nuisance; in other words, that only the nuisance should be enjoined. Under that interpretation, defendants ask to be allowed to continue operations provided they commit no nuisance. But in the Court's opinion, that is impossible. The continued operation of that field in its present condition, according to the evidence, must inevitably result in continuance of the nuisance. The field is entirely too small to avoid the nuisance; and the runway is too close to the homes of some of the plaintiffs.’

Pertinent to the problem now being discussed is the nature of the airfield involved. It is a private airfield which cannot exercise the power of condemnation and the establishment of which requires no finding by any public agency of public convenience and necessity. The owners and operators of such an airport, notwithstanding they are engaged in a legitimate business, the encouragement and furtherance of which is a publicly-declared policy of our Legislature, State Aeronautics Commission Act, Sec. 2(a), must nevertheless conduct it with due regard for the rights of others, and if because of location the operation of such a business will result in depriving others of their property rights, it cannot be permitted, for to do so would, in practical effect, condemn the property of others in violation of constitutional guarantees. Hulbert v. Cal. Portland Cement Co., 161 Cal. 239, 118 P. 928, 38 L.R.A.,N.S., 436.

The distinction between a public and private use as regards the use of injunctive process is pointed out in New York City v. Pine, 185 U.S. 93, 22 S.Ct. 592, 46 L.Ed. 820, wherein the Supreme Court of the United States recognized the principle that, where the defendant in an injunction suit has the ultimate right, that is to say, where it is entitled to continue with its work by eminent domain proceedings, a permanent injunction will be denied, but a temporary injunction may be granted to compel the defendant to make compensation. The State Aeronautics Commission Act contemplates the furtherance of aviation, with its manifold benefits to the public, by operation of both public and private fields, but with respect to the public fields it provides for their establishment by counties, cities and other municipal agencies, requires the finding of public convenience and necessity and contemplates the use of the power of condemnation. No such power is given or could be given to those putting their property to private use, even though incidentally the general purposes of the act are thereby subserved. We conclude there is nothing to distinguish a private airport from any other private business with regard to enjoining operations which create a nuisance.

However, we are still confronted with the final question of whether or not the record here and the findings of the trial court itself support the issuance of the decree completely forbidding the continued use of the property involved as an airfield.

The allegations in the complaint which have been heretofore stated indicate clearly that it is the way in which the flying has been done that constitutes the nuisance complained of. Considering these allegations, the following things must be said: That buzzing, stunting and engaging in acrobatics can be prohibited without difficulty. The allegations that planes taxi, take off, circle, cruise about, maneuver, glide, climb, bank and turn are descriptions of ordinary and necessary actions in flying a plane, not objectionable unless conducted in such close proximity to plaintiffs' homes as to constitute a nuisance. It is the way they are being done and not the doing of them in and of itself which is the cause for complaint. It is the doing of these things at such low altitudes and in such close proximity to plaintiffs' homes and property that is the gravamen of the cause. Limits could be placed upon the doing of these acts which would eliminate the nuisance. Plaintiffs also plead that ‘the only available remedy to Plaintiffs, * * * is a permanent injunction restraining the Defendants permanently from operating the said airport as an airport’, but this is said to be necessary ‘because of the peculiar acts of the Defendants.’ While all these allegations were found to be true by the trial court we think that neither the pleadings nor the findings justify the complete abatement of the enterprise; and that the testimony does not support the extreme decree granted. No witness testified planes could not fly to and from the field and still fly at such elevations as would eliminate the nuisance factor which now exists. Contiguous property owners must to a reasonable degree yield their desired privacy to the general welfare which is contributed to by the operation of legitimate businesses. Were it not so, railroads could not operate near residences, and factories could not be established without the necessity of purchasing prohibitively large areas of property. That reasonable inconvenience must be suffered by owners whose holdings are contiguous to commercial enterprises is too well decided to require citation of authorities. The evidence shows that the length of the runway here, while approximating the lowest limit fixed by federal authority, yet does exceed that limit. We are aware that airplanes necessarily ascend and descend on rising and descending planes and that where a runway is too short to permit them to ascend or descend over contiguous property without invading the lawful right of the surface owner to the air above his holdings their flight would constitute an unlawful act. Nevertheless there is no testimony here that the runway is so short that no planes could lawfully operate from the field. That such was the situation in the opinion of the learned trial judge appears from that part of his written opinion which we have quoted, but the evidence does not sustain that position. We think, therefore, that upon this record here, considering the evidence, the pleadings and the findings, the decree rendered went beyond permissible limits. It may be that the imposition of appropriate limitations will, by reason of the shortness of the runway, and the prevailing flying conditions, make it impossible for the airfield to be operated in a normal and usual manner, but that has not been shown; and until it is the injunction forbidding all operations from the field cannot be sustained. It may be difficult, but we think it is not impossible for the trial court either upon the evidence now in the record, or to be taken, to frame a decree which will eliminate the nuisance that has been shown to exist. For instance, flight over the homes of plaintiffs at elevations below those set by federal authority could be forbidden, flight by flyers unable to comply with such a regulation by reason of inexperience could be forbidden; flight except during daylight hours could be forbidden if necessary. True, complete abatement of the enterprise is undoubtedly the result desired by plaintiffs, but we think that, on the record here, that is beyond their right.

The judgment is reversed and the cause is remanded to the trial court for further proceedings in harmony with this opinion.

VAN DYKE, Justice.

ADAMS, P. J., and DEIRUP, Justice pro tem., concur.