LOMA PORTAL CIVIC CLUB v. AMERICAN AIRLINES INC

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District Court of Appeal, Fourth District, California.

LOMA PORTAL CIVIC CLUB, a non-profit corporation, et al., Plaintiffs and Appellants, v. AMERICAN AIRLINES, INC., et al., Defendants and Respondents.

Civ. 7223.

Decided: March 04, 1964

Driscoll, Harmsen & Wilkins, San Diego, for plaintiffs and appellants. Higgs, Fletcher & Mack, DeWitt A. Higgs, Dan E. Hedin, San Diego, O'Melveny & Myers, Pierce Works, Warren M. Christopher, and Louis T. LaTourrette, Los Angeles, for defendants and respondents American Airlines Inc., Delta Air Lines, Inc., National Airlines, Inc., United Air Lines, Inc., and Western Air Lines, Inc. McInnis, Focht & Fitzgerald and John W. McInnis, San Diego, for defendant and respondent Pacific Southwest Airlines. DeWitt A. Higgs, San Diego, and Gibson, Dunn & Crutcher, Los Angeles, for defendant and respondent Bonanza Airlines.

This is an appeal from a summary judgment dismissing an action to enjoin an alleged nuisance and continuing trespass.

There are several plaintiffs; one of them is the Loma Portal Civic Club, whose membership comprises more than 400 residents in the area of San Diego known as Loma Portal, which brought the action for the benefit of all of its members as a class; and the others are individual home owners in that area. The defendants are seven commercial airline corporations; operate regularly scheduled passenger jet air flights to and from San Diego via Lindbergh Field, a municipally owned airport; and, their aircraft, while landing on and taking off from that airport, fly over the Loma Portal area, which is nearby. The gist of the plaintiffs' complaint is contained in the following allegations:

‘That such jet aircraft have repeatedly and are continuously flown by defendants in great numbers at excessively low altitudes and within the air space immediately above or in close proximity to the homes of residents of the Loma Portal area, including the homes of the persons who are joined as plaintiffs in this action, and below a safe altitude of flight; that in such flights such jet aircraft cause deafening, disturbing and frightening noises and vibrations, disrupt and interrupt sleep and repose and the use of telephone, television and radio; disrupt, interrupt and prevent normal conversation and communication; create fear, nervousness and apprehension for personal safety; injuriously affect the health, habits and material comforts of plaintiffs, and prevent the normal use and reasonable enjoyment of their homes.’

The defendants answered; denied the foregoing allegations; as affirmative defenses, among other things, alleged facts in support of the legal propositions hereinafter considered; moved for a summary judgment; supported their motion by affidavits establishing without contradition the facts hereinafter related, no counter affidavit creating an issue with respect thereto having been filed; and contended, in substance, that these facts showed they had ‘a good and substantial defense’ to the action. (Code Civ.Proc. § 437c.)

The court granted the motion and entered a judgment decreeing that the plaintiffs' complaint was without merit; that there were no triable issues of fact on the issues dispositive of the case; that the ‘complaint’ be dismissed; and that the plaintiffs take nothing by their action. The plaintiffs appeal.

Lindbergh Field is owned by the City of San Diego; was constructed and dedicated as a municipal airport in 1928; was improved thereafter from time to time; since 1949 has been operated under a permit issued by the Public Utilities Commission as required by §§ 21662 and 21663 of the Public Utilities Code; has been used for regularly scheduled jet aircraft flights since 1960; is one of four major terminals on the west coast of the United States; and is an integral part of the National Air Transport System. (See 49 U.S.C.A.) Commencing with the year 1951 some of the improvements to the airport have been financed in part by federal funds. (See 49 U.S.C.A. § 1103 et seq.) As a conditioin to obtaining these funds the City agreed to operate the airport for the use and benefit of the public; to maintain airport approach standards established by the administrator of the Federal Aviation Agency, formerly known as the Civil Aeronautics Administration (See 49 U.S.C.A. § 1110); and to adopt and obtain approval of master layout plans. In 1946 the City adopted a zoning ordinance setting up a master layout plan for the airport and its approaches, which included approach areas over Loma Portal; thereafter adopted amendments thereto; and, pursuant to its agreement with the Federal Aviation Agency, obtained the latter's approval of the current plan which was adopted in 1958 and complied with the provisions of §§ 50485 et seq. of the Government Code. There is one runway at Lindbergh Field which can accommodate large commercial jet aircraft, such as those operated by the defendant companies. This runway, in its present location and size, was constructed during World War II to accommodate heavy bombers. Jet aircraft have been using it for regularly scheduled flights since September, 1960. When landing on or taking off from the airport, these aircraft must fly a descending or ascending course, respectively, over the Loma Portal area.

Air traffic upon and in the vicinity of Lindbergh Field is subject to regulations promulgated by the administrator of the Federal Aviation Agency, and to orders from the federally operated air traffic control tower at the airport. By federal statute, the administrator is ‘authorized and directed to prescribe air traffic rules and regulations governing the flight of aircraft * * *.’ (49 U.S.C.A. § 1348(c).) Pursuant to this authority, the administrator has adopted regulations applicable to the subject airport which prescribe, among other things, traffic patterns, flight altitudes, the speed of aircraft, approach and departure procedures, the glide slope on final approach, the use of runways, and the rate of climb. (Code of Federal Regulations, Part 60, Title 14.) The principal objectives of these rules are “to standarize flight procedures at controlled airports and, to the extent practicable, to provide for the uniform application of traffic pattern rules which would enhance both the safety of airport flight operations and the abatement of aircraft noise as it affects adjacent communities.” As applied to the instant case, these regulations govern the glide slope of an aircraft making a final approach to land, and require a departing aircraft to be flown so that a climb is made as rapidly as practicable to at least 1500 feet, but ‘the Federal Aviation Agency may specify a different rate of climb for a particular type of aircraft when a greater advantage in noise reduction can thereby be achieved with no derogation of safety.’ The administrator, by regulation, also has provided for the installation and maintenance of air traffic control towers at airports, and has prescribed the authority and duties thereof. The traffic control tower at Lindbergh Field is leased to the Federal Aviation Agency, and is staffed by its employees. All aircraft landing upon or taking off from the airport, before doing so, must obtain a clearance from the traffic control tower, and upon obtaining such must abide by the instructions contained therein.

Each of the defendant companies has an airworthiness certificate for each of its aircraft and an air carrier operating certificate, issued by the administrator of the Federal Aviation Agency as required by the Federal Aviation Act of 1958. (49 U.S.C.A. §§ 1423, 1424, and 1430.) Each defendant is a lessee of the City of San Diego under a lease authorizing it to use the subject airport and its appurtenances, including the landing field and any extentions thereof or additions thereto, ‘and all other conveniences for flying, landing and takeoff.’ The defendant Pacific Southwest Air Lines operates aircraft making intrastate flights only. The other six defendants operate aircraft making both intrastate and interstate flights. Each of the latter has a Certificate of Public Convenience and Necessity issued by the administrator pursuant to Section 401 of the Federal Aviation Act. (49 U.S.C.A. § 1371.)

The plaintiffs contend that the noise and vibrations resulting from the flights over their homes at excessively low altitudes constitute a nuisance and a trespass; that they are entitled to injunctive relief to abate or minimize such; and that a determination respecting the nature and extent thereof involves issues of fact.

The defendants contend that the aircraft flights about which the plaintiffs object may not be enjoined because: (1) The federal government has preempted the field of regulation over aircraft traffic which precludes interference therewith by a state court; (2) the continuation of these flights is in the public interest, which limits the plaintiffs' remedy to an action for damages rather than for injunctive relief; and (3) the City has ‘taken’ an air space easement over the plaintiffs' property for the flights in question as an appurtenance to its airport, which it has leased to the defendants, and from these facts it must be concluded that any damage the plaintiffs have sustained arises from this ‘taking’, that the City alone is responsible therefor, and that the defendants' flights in the lawful use of that easement are not actionable.

The trial judge rendered an oral opinion announcing his decision and explaining his reasons therefor, from which it appears that his conclusions were premised upon the assumption that the plaintiffs sought to enjoin in toto the defendants' jet aircraft flights over the Loma Portal area. On appeal the plaintiffs assert that their prayer for injunctive relief is not limited to an abatement of all jet aircraft flights over their property, but includes as well all available alternative measures which might abate or minimize the noise or vibrations about which they complain.

In pressing their contentions on appeal, the defendants assume for the sake of argument, but do not concede, that their jet aircraft flights over the Loma Portal area may create a nuisance or constitute a trespass. Nevertheless, a consideration of some of the principles governing a determination respecting the existence of a nuisance or a trespass is pertinent to the issues at hand.1

A nuisance is defined in § 3479 of the Civil Code. The allegations in the instant complaint describing the nature and effect of the jet aircraft flights about which the plaintiffs complain are patterned upon that definition. However, the provisions of § 3479 are limited by those of § 3482 which declare that nothing which is done under the express authority of a statute can be deemed a nuisance. In this regard, attention is directed to § 21403 of the Public Utilities Code which provides that:

‘Flight in aircraft over the land * * * 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 * * * beneath.’

It should be noted, however, that these provisions make no reference to the noise or vibrations made by an aircraft in the course of its flight.

A trespass is defined as a wrongful invasion of an owner's right in real property, from which damage results. (MacLeod v. Fox West Coast Theatres Corp., 10 Cal.2d 383, 387, 74 P.2d 276.) The ownership of the space above the land in the state is declared by state statute to be vested in the several owners of the surface beneath, subject to the right of flight in aircraft as provided by the aforesaid § 21403 of the Public Utilities Code. However, by federal statute, the United States of America is declared to possess and exercise complete and exclusive national sovereignty in the air space of this country. (49 U.S.C.A. § 1508.) Thus, by its action in the premises, Congress has placed navigable air space in the public domain. (Griggs v. County of Allegheny, Pennsylvania, 369 U.S. 84, 82 S.Ct. 531, 533, 7 L.Ed.2d 585; 369 U.S. 857, 82 S.Ct. 931, 8 L.Ed.2d 16.) Nevertheless, the owner of land has ‘exclusive control of the immediate reaches of the enveloping atmosphere’; ‘owns at least as much of the space above the ground as he can occupy or use in connection with the land’; and may recover damages resulting from an invasion of that part of the air space within the immediate reaches above his land which is of such a nature and to such an extent as to constitute ‘a direct and immediate interference with the enjoyment and use of the land.’ (United States v. Causby, 328 U.S. 256, 66 S.Ct. 1062, 1067, 1068, 90 L.Ed. 1206; Griggs v. County of Allegheny, Pennsylvania, supra, 369 U.S. 84, 82 S.Ct. 531, 533, 7 L.Ed.2d 585; 369 U.S. 857, 82 S.Ct. 931, 8 L.Ed. 16.) The use of that air space by aircraft in landing upon or taking off from a nearby municipal airport may constitute the ‘taking’, in a constitutional sense, of an air space easement over the land beneath, for which just compensation must be paid. (Griggs v. County of Allegheny, Pennsylvania, supra, 369 U.S. 84, 82 S.Ct. 531, 7 L.Ed.2d 585; 369 U.S. 857, 82 S.Ct. 931, 8 L.Ed.2d 16.) The nature and extent of such use will determine the nature and extent of the easement taken, the degree of invasion, and the amount of compensation to be paid. (United States v. Causby, supra, 328 U.S. 256, 66 S.Ct. 1062, 1066, 1069, 90 L.Ed. 1206; See Thornburg v. Port of Portland, 233 Or. 178, 376 P.2d 100, 102–108.) The allegations in the complaint at bar describing the location, nature, effect and extent of the jet air flights to which the plaintiffs object are sufficient basis for an issue that these flights constitute a trespass in the nature of a ‘taking’ of an air space easement over their land.

If it be assumed that, under the record before us, a triable issue of fact exists as to whether the subject jet air flights constitute a nuisance or a trespass, the motion for summary judgment should not have been granted, unless there is no triable issue respecting the existence of a fact from which it may be concluded, as a matter of law, that the plaintiffs are not entitled to any relief under their complaint. (See gen. Walsh v. Walsh, 18 Cal.2d 439, 116 P.2d 62.)

In this regard, as heretofore noted the defendants contend that the federal government, in the exercise of its authority to regulate interstate commerce, has preempted the field of air traffic regulation; that a state may not interfere therewith through its courts by the injunctive process; and that the plaintiffs' request for an injunction respecting conduct subject to federal regulation should be denied.

‘It appears beyond question that the power of Congress under the commerce clause * * * includes the regulation of the interstate operation of air carriers.’ (People v. Western Air Lines, Inc., 42 Cal.2d 621, 643, 268 P.2d 723, 736.)

That power has been exercised through the adoption of the Federal Aviation Act and the regulations promulgated pursuant thereto by the administrator of the Federal Aviation Agency. This Act and these regulations apply to the defendants' and other aircraft using the subject airport (49 U.S.C.A. § 1301(4)); establish unequivocally that the federal government has preempted the field of air traffic control; and foreclose any regulation of air traffic by judicial decree, except as hereinafter noted. (Scandinavian Airlines System, Inc. v. County of Los Angeles, 56 Cal.2d 11, 37, 14 Cal.Rptr. 25, 363 P.2d 25; Allegheny Airlines v. Village of Cedarhurst, 2 Cir., 238 F.2d 812, 815; City of Newark, New Jersey v. Eastern Airlines, Inc., D.C., 159 F.Supp. 750, 754, 759.)

The plaintiffs contend that the federal government, by its legislative and regulatory action in the premises, has not preempted the field of judicial abatement of a nuisance or continuing trespass resulting from the flight of aircraft. In support of this position they cite a number of cases which are distinguishable from the case at bar; which do not consider the area of air traffic control; and which are governed by specific factual situations from which the courts concluded that the federal government had not occupied a field of legislation allegedly invaded by state action.2 The contention in question disregards the distinction between the existence of a cause of action based on a nuisance or trespass and the nature of the relief the court may afford on account of such cause of action. (See Wulfjen v. Dolton, 24 Cal.2d 891, 895, 896, 151 P.2d 846; cf. United States v. Gerlach Live Stock Co., 339 U.S. 725, 752, 70 S.Ct. 955, 969, 94 L.Ed. 1231.) Relief by injunction that prohibits flights at an altitude, speed or place prescribed by federal regulations invades a field over which the federal government is exercising control, even though the flights conforming to those regulations constitute a nuisance.

The plaintiffs also contend that their right to injunctive relief is preserved by a saving clause in the Federal Aviation Act, viz., § 1106 thereof, which provides that nothing contained in the Act ‘shall in any way abridge or alter the remedies now existing at common law or by statute * * *.’ (49 U.S.C.A. § 1506.) However, such a saving clause is not meant to destroy the effectiveness of the Act to accomplish the purpose for which it was enacted; preserves only such remedies as are not inconsistent with the Act; and does not reserve to the courts the right to regulate air traffic through the injunctive process invoked in an action by a land owner seeking relief from a nuisance or trespass resulting from adherence to regulations adopted to effect the purpose of the Act. (Pennsylvania R. Co. v. Puritan Coal Min. Co., 237 U.S. 121, 129, 35 S.Ct. 484, 487, 59 L.Ed. 867; Texas & P. R. Co. v. Albilene Cotton Oil Co., 204 U.S. 426, 27 S.Ct. 350, 357, 51 L.Ed. 553.) On the other hand, relief by way of damages in an action based on nuisance or trespass resulting from air flight adherence to federal air traffic regulations is not within the area preempted by the federal government, nor inconsistent with the purpose of the Federal Aviation Act. (Griggs v. County of Allegheny, Pennsylvania, supra, 369 U.S. 84, 82 S.Ct. 531, 7 L.Ed.2d 585; 369 U.S. 857, 82 S.Ct. 931, 8 L.Ed.2d 16; cf. Porter v. Southeastern Aviation, Inc., D.C. 191 F.Supp. 42.)

We hold that a court may not enjoin aircraft flights conforming to regulations promulgated by the Federal Aviation Administrator pursuant to the authority vested in him by the Federal Aviation Act even though such flights constitute a nuisance or continuing trespass.

In further support of their contention that relief by injunction is not available to the plaintiffs, the defendants claim that the flights to which the plaintiffs object are in the public interest; that the use of the air apace over the latters' property by aircraft engaged in such flights is a public use; and that, for this reason, the plaintiffs' right to relief on account of any damage to their property resulting from these flights is limited to the recovery of compensation.

Where a public service corporation, in the course of rendering services to the public, uses the property of another without right over such a period of time and under such circumstances that a public interest therein has intervened, public policy dictates that the owner of that property thereafter may not enjoin such use, but is limited to the recovery of damages alone. (Wilson v. Beville, 47 Cal.2d 852, 856, 306 P.2d 789; People v. Ocean Shore Railroad, 32 Cal.2d 406, 421, 196 P.2d 570, 6 A.L.R.2d 1179; Hillside Water Co. v. Los Angeles, 10 Cal.2d 677, 688, 76 P.2d 681; Peabody v. City of Vallejo, 2 Cal.2d 351, 378, 40 P.2d 486; Miller & Lux v. Enterprise Canal etc. Co., 169 Cal. 415, 423–434, 147 P. 567; Gurnsey v. Northern Cal. Power Co., 160 Cal. 699, 709, 117 P. 906, 36 L.R.A.,N.S., 185; Churchill v. Kellstrom, 58 Cal.App.2d 84, 88, 136 P.2d 602; Chilberg v. City of Los Angeles, 54 Cal.App.2d 99, 102, 128 P.2d 693.) When a public interest has intervened, upon the establishment of a public service, ‘public policy requires that the owner be denied the right to disrupt the service or to interfere with the right of the public to have the service continued.’ (People v. Ocean Shore Railroad, supra, 32 Cal.2d 406, 421, 196 P.2d 570, 580, 6 A.L.R.2d 1179; City of Pasadena v. City of Alhambra, 33 Cal.2d 908, 920, 207 P.2d 17; Peabody v. City of Vallejo, supra, 2 Cal.2d 351, 379, 40 P.2d 486.) The use of the air space above the plaintiffs' property for regularly scheduled jet aircraft flights to and from San Diego, in compliance with federal regulations, is a public use. (Griggs v. County of Allegheny, Pennsylvania, supra, 369 U.S. 84, 90, 82 S.Ct. 531, 7 L.Ed.2d 585; 369 U.S. 857, 82 S.Ct. 931, 8 L.Ed.2d 16.) The probability of that use dates from the issuance of Certificates of Public Convenience and Necessity authorizing such flights, and its actuality from September, 1960. In undertaking these flights the defendant companies, obviously, were required to make substantial investments to accomplish their objectives and to comply with the conditions imposed upon them by law and regulation. In the meantime, the public served thereby has adjusted its social and economic interests and activities in reliance upon the conveniences made available through jet aircraft transportation. That a public interest has intervened in the use of the air space above the plaintiffs' property which makes these flights a possibility may not be denied.

The plaintiffs contend that the aforesaid rule applies only where the Public Services Corporation invoking such has the right to take the property used by it through eminent domain proceedings; that the defendant companies do not have this right;3 and, for this reason, the rule is not applicable to the instant case. However, the rule is based upon a public policy to protect the public interest rather than upon a justification of a ‘taking’ of property by a service corporation because it could have acquired such by condemnation. In any event, the rights and obligations of the City of San Diego in the premises, and its relationship to the defendant airlines, justifies an application of the doctrine of intervening public interest to this case. The affidavits in support of the defendants' motions for a summary judgment establish without conflict that the City of San Diego designed Lindbergh Field; located the runways thereon; determined that it should be used for regularly scheduled jet aircraft flights; leased to the defendant companies the right to use it as a base for such flights; and, for a period in excess of three years, has provided accommodations for such a use. The leases in question expressly conferred upon the defendants the right to use the airport and ‘its appurtenances' for the purpose of landing upon and taking off therefrom. In the course of such use, their jet aircraft have flown over the plaintiffs' property in arriving at and departing from that airport within the only air corridor available for such purpose. Assuming that the City was authorized to acquire an air space easement over the plaintiffs' property for jet aircraft flights to and from the airport, through an exercise of the right of eminent domain, which is a subject hereinafter considered, its action in the premises constitutes the ‘taking’ of such an easement; the City is liable to the plaintiffs for the damage they have sustained as a result of that ‘taking’ (Griggs v. County of Allegheny, Pennsylvania, supra, 369 U.S. 84, 82 S.Ct. 531, 7 L.Ed.2d 585; 369 U.S. 857, 82 S.Ct. 931, 8 L.Ed.2d 16); and, because the public interest has intervened, the plaintiffs' remedy against the City is limited to the recovery of damages. The obligation of the City to compensate the owners of property adjacent to its airport for damage resulting from flights through the air space which is a part of that property by jet aircraft arriving at or departing from the airport, is an incident to its obligation to provide such aircraft with ingress and egress to and from the airport runways. (Griggs v. County of Allegheny, Pennsylvania, supra, 369 U.S. 84, 89–90, 82 S.Ct. 531, 533–534, 7 L.Ed.2d 585; 369 U.S. 857, 82 S.Ct. 931, 8 L.Ed.2d 16.) Under these circumstances, to refuse to enjoin the City from using its airport for jet aircraft flights because the public interest in the continuation of such flights had intervened but, at the same time, to enjoin the airlines from conducting such flights, involves the incongruous application of a principle that the law will not tolerate.

This conclusion is not in conflict with the decision in Anderson v. Souza, 38 Cal.2d 825, 243 P.2d 497, which is cited by the plaintiffs and claimed by them to be controlling. The airport in that case was a private airport and, noting this fact, the court said:

“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. * * * 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.”

The observations and conclusions thus stated are not applicable to the case at bar.

The plaintiffs also contend that the authority of the City to acquire air space easement by condemnation is derived from and limited by the provisions of § 1239.2 of the Code of Civil Procedure; that these provisions are the sole source of its authority in the premises; that by virtue thereof it may acquire air space easements through eminent domain proceedings only where such acquisition is necessary to protect the approaches of an airport from the encroachment of vegetable life which would interfere with or be hazardous to the use of an airport; and that the acquisition of air space to permit the approach or departure of aircraft to and from an airport through the air space above the surface of property adjoining such, except for the purpose noted, which is not applicable to the case at bar, is not authorized. This contention is based upon the premise that § 1239.2 is the sole source of the City's authority to acquire air space easements by condemnation. However, § 1238, subd. 20 of the Code of Civil Procedure authorizes the exercise of the right of eminent domain in behalf of ‘[a]irports for the landing and taking off of aircraft * * *.’ This authority may be exercised by any person providing the property acquired is for a public use. (Civ.Code § 1001; see City of Pasadena v. Stimson, supra, 91 Cal. 238, 248, 27 P. 604.) As noted in Griggs v. County of Allegheny, Pennsylvania, supra, 369 U.S. 84, 82 S.Ct. 531, 531, 7 L.Ed.2d 585; 369 U.S. 857, 82 S.Ct. 931, 8 L.Ed.2d 16, “an adequate approach way is as necessary a part of an airport as is the ground on which the airstrip itself, is constructed.” The authority to acquire property by condemnation for airports for the landing and taking off of aircraft includes not only the authority to acquire property upon which to construct runways, but also the authority to acquire easements through the air space above the surface of adjoining property which are necessary to enable aircraft to land upon or take off from these runways. This authority is not limited by the provisions of § 1239.2 of the Code of Civil Procedure.

We hold that the rule denying an injunction against a use to which a public interest has attached applies to the case at bar.

The facts presented by the record at hand do not afford the basis for a precise determination respecting the nature and extent of the easements through the air space over the surface of the plaintiffs' property which has been ‘taken’ by the City of San Diego to enable jet aircraft to land upon and take off from Lindbergh Field. In any event, the use of the air space above the surface of the plaintiffs' property by the defendant's jet aircraft which will not be enjoined is limited to the use thereof that is necessary to effect a continuance of the services to which a public interest has attached. Any use of the air space in question which constitutes a nuisance or a trespass and is not essential to a continuance of regularly scheduled aircraft flights to and from Lindbergh Field, would be subject to injunctive relief.

Likewise, the rule foreclosing the issuance of an injunction against acts over which the federal government has control because of its preemption of the field of air traffic regulation, as applied to this case, also has its limitations. Only that use of the air space above the surface of the plaintiffs' property by the defendants which conforms to federal legislation and regulation is without the pale of state court consideration. (California Oregon Power Co. v. Superior Court, 45 Cal.2d 858, 868, 291 P.2d 455; Anderson v. Souza, supra, 38 Cal.2d 825, 844, 243 P.2d 497.) The saving clause of the Federal Aviation Act heretofore considered, viz., § 1106 thereof (49 U.S.C.A. § 1506), expressly excepts from any area of activity preempted thereby the remedies within that area which are not in conflict with the accomplishment of the purpose of the Act. An injunction abating a nuisance or trespass resulting from a use of air space that does not comply with the provisions of the Act, or the regulations adopted pursuant thereto, is not a remedy inconsistent with the enforcement thereof nor in conflict with the accomplishment of its purpose. It is only where the jurisdiction of the state court invades the jurisdiction of the federal government that the former may not act. Unless an injunction seeks to control within the area of regulation preempted by the federal government, there is no conflict between these jurisdictions. Any use of the air space in question by the defendants which constitutes a nuisance or a trespass, and does not conform to or is not within the scope of federal legislation or regulation would be subject to injunctive relief. The defendants direct our attention to the enforcement provisions of the statute designating penalties, prescribing disciplinary action, and authorizing the issuance of an injunction, upon a violation of the Act or the regulations issued thereunder, and contend that by virtue thereof the federal government has preempted the filed of relief obtainable on account of any cause of action predicated upon the use of air space that does not conform to that Act or those regulations. This contention ignores the difference between remedies incident to enforcement of the Act, and those incident to an action for a nuisance or trespass. By virtue of the saving clause heretofore considered, viz., § 1106 (49 U.S.C.A. § 1506), jurisdiction to invoke the former does not exclude jurisdiction to invoke the latter, except in the area heretofore noted. The instant action is directed to the prevention of injury from conduct allegedly constituting a nuisance or trespass rather than to the enforcement of the provisions of the Federal Aviation Act; seeks state court relief upon the ground that the flights to which the plaintiffs object constitute a nuisance or trespass, and not because they constitute a violation of that Act; and, as a vehicle to invoke a state court remedy, to the extent that the relief afforded by that court does not interfere with the effectiveness of the Act to accomplish its purpose, is not barred by federal legislation in the field.

At this juncture it is proper to note that the affidavits supporting the defendants' motions for summary judgment do not show that, during the time alleged in the complaint, the flights therein referred to conformed to the air traffic regulations heretofore considered, or the clearance instructions issued from the air control tower at the airport. Further, it does not appear from those affidavits that the flights in question were made in a manner necessary to serve the public interest which has intervened as a result of the use of the air space above the surface of the plaintiffs' property by the defendants' jet aircraft.

In support of their motions the defendants were required to show not only that there was no triable issue of fact involved in the defenses upon which they relied, but also that these defenses were complete defenses to the action, i. e., removed all triable issues of fact from the case and entitled them to judgment. (Code Civ.Proc. § 437c; Wilson v. Wilson, 54 Cal.2d 264, 266, 5 Cal.Rptr. 317, 352 P.2d 725; de Echeguren v. de Echeguren, 210 Cal.App.2d 141, 151–152, 26 Cal.Rptr. 562; Family Service Agency of Santa Barbara v. Ames, 166 Cal.App.2d 344, 348, 333 P.2d 142.) The nuisance and trespass allegations of the complaint, that the defendants are engaged in flying jet aircraft ‘at excessively low altitudes and within the air space immediately above * * * the homes of residents of the Loma Portal area * * * and below a safe altitude of flight’ and ‘that in such flights such jet aircraft cause deafening, disturbing and frighteming noises and vibrations', refer not only to flights which conform to federal legislation or regulation or are essential to a continuation of an air transportation service to which an intervening public interest has attached, but also to those which do not conform or are not essential. (Italics ours.) An application of the conclusions heretofore noted dictates the further conclusion that although the defenses of federal preemption of the field of air traffic control and an intervening public use may apply to some of the flights included within the nuisance and trespass allegations of the complaint, they do not apply to the aforesaid nonconforming and nonessential flights. The affidavits in support of the defendants' motions for summary judgment establish that there is no triable issue of fact with respect to those flights to which the defenses in question apply, but do not establish the lack of a triable issue of fact with respect to the flights to which those defenses do not apply. The affidavits in question do not dispose of the issues of fact framed by the pleadings as to whether the low altitude, noise-making and vibration-causing flights not subject to the defenses in question occur and, if so, whether they constitue a nuisance or a trespass. (Generally see Anderson v. Souza, suprz, 38 Cal.2d 825, 838–845, 243 P.2d 497.)

In this regard, it is noteworthy that in Anderson v. Souza, supra, 38 Cal.2d 825, 844, 243 P.2d 497, 509, the court said:

‘For example, flight over the homes of plaintiffs an elevations below those set by federal authority could be forbidden; * * *.’

In further support of their position that a triable issue of fact exists in the instant ease, the plaintiffs argue, by way of example, that even though the defendants' aircraft are flown at altitudes prescribed by federal regulations the noise and vibrations produced thereby might be lessened through the use of appropriate equipment consistent with safety; that this field of regulation has not been preempted by the federal government because the Federal Aviation Act provides that the Certificate of Public Convenience and Necessity authorizing an airline company to engage in air transportation does not restrict its right ‘to add to or change * * * equipment * * * and facilities for performing the authorized transportation and service as the development of the business and demands of the public shall require * * *’ (49 U.S.C.A. § 1371, subd. (e)(4)); and that an injunction may be directed to the minimization of a nuisance as well as its abatement. (California Oregon Power Co. v. Superior Court, supra, 45 Cal.2d 858, 869, 291 P.2d 455; Anderson v. Souza, supra, 38 Cal.2d 825, 841, 243 P.2d 497; Atkinson v. Bernard, 233 Or. 624, 355 P.2d 229, 233–234.)

To the extent that the aforesaid argument indicates the existence of a triable issue of fact, it has merit. On the other hand, the standard of reasonableness controls both the rights of the plaintiffs and the duties of the defendants as related to the air flights under consideration in this case. The plaintiffs must accept reasonable inconveniences that accompany the ownership of property in the vicinity of an airport used as a base for jet aircraft transportation. (United States v. Causby, supra, 328 U.S. 256, 66 S.Ct. 1062, 1066, 90 L.Ed. 1206; Jensen v. United States, 305 F.2d 444, 447; Anderson v. Souza, supra, 38 Cal.2d 825, 844, 243 P.2d 497; Ct.Cl., gen. Restatement—Torts §§ 822, 826–828.) In any event, our conclusions with respect to the merits of the argument in question must not be accepted as a determination that any facts exist which entitle the plaintiffs to enjoin any part of the defendants' operations. Furthermore, it is not our intention to declare that a state court may issue an injunction which would interfere with any equipment regulation adopted pursuant to the Federal Aviation Act as a safety measure. The federal government has preempted the field of regulation in this area for this purpose. (49 U.S.C.A. § 1423, subds. (a) and (c).) In this regard, rules applicable to the field of air traffic control, as hereinbefore noted, also are applicable to the field of equipment control. The saving clause provisions of § 1106 of the Act (49 U.S.C.A. § 1506) do not reserve to a person injured by a nuisance or trespass resulting from the use of air space by an aircraft subject to federal safety regulations concerning its equipment any remedy which would interfere with the effectiveness of those regulations.

Heretofore we have indicated the absence of a precise description of the nature and extent of the air space easements allegedly ‘taken’ by the City. Under the record at hand the determination thereof involves a triable issue of fact. To measure such requires a consideration of many factors. Included are the boundaries of the air corridor used, the types of aircraft making the flights, the frequency, time and altitude of those flights, the speed of the aircraft, the rate of climb, and accompanying effects such as noise, vibration, and falling objects. (Jensen v. United States, 305 F.2d 444, 447.)

A further issue for determination on this appeal arises out of the contention by the defendants that the jet aircraft flown over the plaintiffs' property in landing upon and taking off from Lindbergh Field used an air space easement ‘taken’ by the City of San Diego for this purpose; that flights within the confines of and limited to the purposes for which this easement was ‘taken’ may not be enjoined; that the plaintiffs are limited to the recovery of damages for this ‘taking’; and that the City of San Diego alone, rather than the defendants, is liable for these damages.

A consideration of this issue is pertinent to the case at bar because the lawful use of a servitude would not give rise to a cause of action by the owners of the servient estate, and also because the trial court has jurisdiction to determine the full controversy before it by awarding damages to the plaintiffs if they are entitled to such, even though their prayer for injunction is denied (Sears v. Rule, 27 Cal.2d 131, 148, 163 P.2d 443); concerns only the causes of action by those plaintiffs who own property in the Loma Portal area; and does not concern the cause of action on behalf of the individual members of the Loma Portal Civic Club, as the property owned by them is not described therein, and for this reason the compensation issue as to their property is not within the scope of the present pleadings.

Obviously the contention in question is based upon an assumption that the jet aircraft flights to which the plaintiffs object were confined within the limits of the alleged air space easement which the defendants claim was ‘taken’ by the City. As heretofore noted, the nature and extent of this easement have not been defined, but remain the subjects of triable issues of fact. Therefore, it must be understood that our consideration of this contention is based upon the foregoing assumption.

In the ultimate, the question for determination is whether the liability of the City for the taking of the alleged easement absolves the defendants of liability on account of its use for the jet aircraft flights to which the plaintiffs object. If the City of San Diego, through eminent domain proceedings, had acquired an air space easement over the plaintiffs' property similar in nature and extent to that ‘taken’ by it under the circumstances heretofore related, the defendants' use thereof, if confined within its limits, would be lawful; would not be actionable as a nuisance or as a trespass; and would not be the cause of any damage to the plaintiffs' property for which they previously had not been compensated. The same conclusion would follow, if the City had been a party to a previous action in which the principle of inverse condemnation had been applied; the ‘taking’ of the air space easement by it had been established; the damages sustained by the plaintiffs as a result thereof had been ascertained; and a judgment in favor of the plaintiffs for that amount had been entered. The award of compensation in the eminent domain or in the inverse condemnation proceedings would have included damages for the loss occasioned by the nature and extent of the use to which the air space above the surface of the plaintiffs' property would be subjected by the flights of jet aircraft handing upon and taking off from Lindbergh Field. The primary distinction between the two foregoing easement situations and the situation in the case at bar is that, in the latter, the plaintiffs have not received compensation for the easement that the City of San Diego was obligated to provide for those using its airport, which has been ‘taken’ by it in the manner heretofore noted, and the use of which is included within its leases to the defendant airlines. Under the circumstances noted, even though it be assumed that the defendant airlines participated in the ‘taking’ of the easement in question, by conducting the flights in question, it would be unreasonable to hold that they are liable for any compensation to which the plaintiffs may be entitled as an alternative to injunctive relief. Furthermore, adherence to an orderly procedure requires the plaintiffs to proceed against the City to recover the compensation to which they may be entitled on account of the damage occasioned by the defendants' jet aircraft flights which may not be enjoined because their continuation is in the public interest. Under circumstances such as those in the instant case, the intervention of a public interest and the denial of injunctive relief on account thereof, in substance, creates an air space easement, with the plaintiffs' property as its servient tenement, and the airport as its dominant tenement. As a practical matter, the easement so created was acquired by the City and not by the airline companies whose aircraft are engaged in such flights. This is not a case, such as Wright v. United States, Ct.Cl., 279 F.2d 517, where the user of the airport had leased the land upon which it was located and was held liable in damages for the ‘taking’ of an air space easement over adjoining property as a result of such use. In the instant case, the defendants' rights in Lindbergh Field are confined to a use of its facilities for air terminal purposes. A city that owns, operates and leases the use of an airport has the responsibility of furnishing the air space easements necessarily incidental to its operation, which includes the obligation to furnish the means of ingress and egress to and from the runways located thereon. (Griggs v. County of Allegheny, Pennsylvania, supra, 369 U.S. 84, 89–90, 82 S.Ct. 531, 534, 7 L.Ed.2d 585; 369 U.S. 857, 82 S.Ct. 931, 8 L.Ed.2d 16.) Where it has not acquired necessary approach and departure air space easements, it has not acquired enough. (Ibid.) As a consequence, when its lessees use the air space within the immediate reaches over the surface of adjoining property in the course of flights in landing upon and taking off from its airport, and the public interest attaches to a continuation of such flights, an air space easement over that property has been ‘taken’ for which the city is liable in damages. (Ibid.) The City of San Diego had the responsibility of furnishing the air space easement in question; authorized the use of its airport for the flights, to which the plaintiffs object, that instituted a service to the continuation of which a public interest has attached; is liable in damages for the ‘taking’ effected through such use; and, thus, as the owner, operator, and lessor of the airport acquired the easement ‘taken’. The extent of the damage sustained by the plaintiffs as a result of the jet aircraft flights to which they object, among other things, is related to the number of those flights. The damage occasioned by a few flights obviously would be less than the damage occasioned by innumerable flights. The different problem of determining the extent of interference with the plaintiffs' rights by the flights of each defendant and the amount of damages recoverable on account thereof, when the plaintiffs are entitled to compensation for damage resulting from the combined flights of all of the defendants' aircraft, is alleviated by requiring the plaintiffs to seek the damages to which they are entitled in an inverse condemnation proceeding against the City, wherein the total damage resulting from the total flights to which their property is and will be subjected can be determined.

As the record before us indicates the existence of triable issues of fact, the order granting the defendants' motions for a summary judgment was in error.

The judgment is reversed.

FOOTNOTES

1.  A determination whether the flights about which the plaintiffs complain constitute a nuisance rather than a trespass, or vice versa, or both, is not essential to the decision at hand and no such determination is intended. (See Swetland v. Curtiss Airports Corporation, 6 Cir., 55 F.2d 201; Atkinson v. Bernard, Inc., infra, 223 Or. 624, 355 P.2d 229; Thornburg v. Port of Portland, 233 Or. 178, 376 P.2d 100, 102–108.)

2.  The cases in question are: Huron Portland Cement Co. v. City of Detroit, Mich., 362 U.S. 440, 80 S.Ct. 813, 4 L.Ed.2d 852; Braniff Airways, Inc. v. Nebraska State Board of Equalization & Assessment, 347 U.S. 590, 74 S.Ct. 757, 98 L.Ed. 967, 969; Scandinavian Airlines System, Inc. v. County of Los Angeles, supra, 56 Cal.2d 11, 37, 14 Cal.Rptr. 25, 363 P.2d 25; California Oregon Power Co. v. Superior Court, infra, 45 Cal.2d 858, 291 P.2d 455; People v. Western Air Lines, Inc., 42 Cal.2d 621, 643, 268 P.2d 723, wherein the court noted that Congress has asserted jurisdiction over safety factors involved in air commerce.

3.  The plaintiffs' premise that the defendants did not have the right to acquire air easements over the plaintiffs' property is subject to serious question in view of the provisions of § 1238, subd. 20 of the Code of Civil Procedure conferring the right of eminent domain in behalf of public airports for the landing and taking off of aircraft, and the provisions of § 1001 of the Civil Code authorizing the exercise of this right by ‘any person’ (See City of Pasadena v. Stimson, 91 Cal. 238, 248, 27 P. 604; Moran v. Ross, 79 Cal. 159, 21 P. 547; and other applicable provisions of law hereinafter considered in this opinion.)

COUGHLIN, Justice.

GRIFFIN, P. J., and GERALD BROWN, J., concur.

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