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Court of Appeal, Fifth District, California.

Michael J. VARJABEDIAN, Individually and as guardian ad litem, Plaintiffs, Respondents and Appellants v. CITY OF MADERA, a Municipal Corporation, Defendant, Appellant and Respondent.

Civ. 2524.

Decided: November 26, 1976

Axel E. Christiansen, City Atty., Bartow & Christiansen, Parichan, Krebs, Renberg & Eldridge, Madera, for City of Madera. Sherwood & Denslow Green, Madera, for Michael J. Varjabedian and others.


City of Madera, a municipal corporation, defendant, appeals from a judgment entered upon a jury verdict in favor of respondent for damages caused by noxious odors emanating from defendant's sewage treatment plant. Defendant urges several errors: (1) the damages awarded were excessive and not supported by the evidence; (2) the trial court erroneously instructed the jury respondents were entitled to recover damages proximately caused by a permanent nuisance based upon the difference in value of plaintiffs' land without the construction of the sewage treatment plant and the value of plaintiffs' land after the construction of the sewage treatment plant when it was in operation.

Plaintiffs cross appeal from the granting of a judgment on the pleadings by the trial court dismissing their fourth cause of action for inverse condemnation.


In 1969, plaintiffs Michael and Judith Varjabedian purchased approximately eighty acres of farm land in Madera County. The property included a rental home and a dwelling house, the latter of which became plaintiffs' place of residence. Residing on the property also were the plaintiffs' daughter, and two sons of Mrs. Varjabedian by a former marriage. In 1971, defendant City of Madera caused to be constructed a sewage treatment plant on three hundred acres of property located approximately six hundred feet northwest of plaintiffs' home and ranch. As part of the installation, twelve 20-acre settling ponds were constructed northwest of the actual sewage treatment plant. In May of 1972 the City began using the settling ponds for the disposal of treated effluent from the City's old sewer plant. The new sewage treatment facility began operation on September 21, 1972. On two occasions between May and September of 1972, effluent from the old plant was processed through the new facility to test the new equipment and the plant contractor allowed effluent to remain in the settling tanks of the new facility for at least a month, causing the same to turn septic and give off offensive odors to neighboring properties.

For approximately one year after the commencement of the operation of the new sewage treatment facility repeated trouble occurred with the plant's waste gas burner. The burner flame intermittently went out causing offensive gas to escape. The burner was finally repaired in September of 1973 and except for minor blowouts has since performed satisfactorily. As a part of the original treatment design, supernate (a liquid that remains after sludge has been removed from the waste), was returned to the sewage treatment plant after processing. Supernate gives off very strong and offensive odors. The plant operators made numerous efforts to decrease such odors by the use of chlorination and masking agents. When this failed, they endeavored to refrain from processing supernate when the plaintiffs were at home. Finally, in August of 1973, an underground enclosed line was completed to carry the supernate and sludge to the settling ponds. As a part of the treatment process, a digster is utilized for solid wastes which are broken down by bacteria. Due to an improper balance of bacteria, it was necesary to ‘drain off’ the digester periodically which resulted in the production of highly offensive odors. These offensive odors continued in spite of control efforts by the plant operators until October of 1973 when a proper bacteria level was obtained.

As early as July 1, 1972, plaintiffs began having trouble with offensive odors from the sewage treatment plant prompting complaints to city officials. Plaintiffs were assured that the odors would be minimized and the plant would be odor free. After the new treatment facility started operation the odors continued and the plaintiffs again complained to city officials. Finally, on November 22, 1972, plaintiffs met with the Madera city council which passed a motion directing the city staff to try to improve the situation within thirty days. A second meeting was held with the city council on January 15, 1973, at which time the plaintiffs were again assured by the council that everything was being done to rectify the problem. The offensive odors, however, continued up to the date of trial, varying in intensity from mild to strong.

Following the Council meetings and upon instruction from their counsel, plaintiffs maintained a written log with respect to the occurrence and intensity of the offensive odors. According to the log, the smells were present on most days from January 29, 1973, until trial, and would vary in intensity from ‘smell’ to ‘very bad’ to ‘horrible’. The odors would come and go guring the day, were offensive to the senses and were such as to destroy ‘the comfort and enjoyment’ of the plaintiffs' property and would at times cause nausea and make plaintiffs' eyes water or burn. Numerous witnesses who had been at or in the vicinity of plaintiffs' home during the time the plant was operating, described the odors in varying degrees from ‘unpleasant, to say the least’, to ‘offensive to senses', to ‘such that they would interfere with the comfortable enjoyment of life’. The jury awarded plaintiffs Michael and Judith Varjabedian the sum of $32,000 damages for the loss of value to their real property; the sum of $30,000 damages for the anticipated termination of plaintiffs' California Veterans Loan benefits and $11,000 damages to the Varjabedians and the children for personal discomfort.

We conclude the trial court improperly granted a judgment dismissing the inverse condemnation action and erroneously instructed the jury with respect to damages caused by a permanent nuisance; accordingly, we will reverse the judgments.

1. Improper Instructions at to Damages for Permanent Nuisance.

The trial court instructed the jury in the exact language of Civil Code section 3479 which defines a nuisance as:

‘Anything which is injurious to health, or is indecent or offensive to the senses, or an obstruction to the free use of property, so as to interfere with the comfortable enjoyment of life or property, or unlawfully obstructs the free passage or use, in the customary manner, of any navigable lake, or river, bay, stream, canal, or basis, or any public park, spuare, street, or highway, is a nuisance.’

In addition the only instruction given by the trial court concerning the matter of damages to plaintiffs' real property caused by a permanent nuisance was as follows:

‘In determining the compensation, if any, to be awarded Plaintiffs for damage to their property proximately caused by a permanent nuisance, in addition to other damage as to which I have instructed you or will instruct you, they are entitled to recover the difference, if any, in the present fair market value of the property as the same would have been without the construction of the sewage treatment plant by the City of Madera, and the present fair market value after said plant was constructed and put into operation.’ (Plaintiff Inst. 6–A.)

Although specifically requested by defendant City, the trial court refused to advise the jury that Civil Code section 3482 provides:

‘Nothing which is done or maintained under the express authority of a statute can be deemed a nuisance.’

and declined to give the following defendant's requested instruction No. 17.

‘The City of Madera is a general law City of the State of California and as such is authorized by statute to acquire, construct, maintain and operate a waste water collection treatment and disposal plant. It is the law in this state that nothing which is done or maintained under the express authority of a statute can be deemed a nuisance. This simply means that the activity authorized, which in this case is the construction and operation of a waste water treatment plant, cannot be a nuisance, but the manner in which the activity is performed may constitute a nuisance.’

In Henderson v. Harnischfeger Corp. (1974) 12 Cal.3d 663, 670–671, 117 Cal.Rptr. 1, 5, 527 P.2d 353, 357 the Supreme Court recently stated:

‘Generally speaking if it appears that error in giving an improper instruction was likely to mislead the jury and thus to become a factor in its verdict, it is prejudicial and ground for reversal. (4 Witkin, Cal.Procedure (2d ed. 1971) pp. 3056–3057.) To put it another way, ‘[w]here it seems probable that the jury's verdict may have been based on the erroneous instruction prejudice appears and this court ‘should not speculate upon the basis of the verdict.’' (Robinson v. Cable (1961) 55 Cal.2d 425, 428, 11 Cal.Rptr. 377, 378, 359 P.2d 929, 930; see also Luque v. McLean, supra, 8 Cal.3d 136, 147, 104 Cal.Rptr. 443, 501 P.2d 1163; Fistica v. Presbyterian Hospital (1967) 67 Cal.2d 465, 471, 62 Cal.Rptr. 577, 432 P.2d 193; Oettinger v. Stewart (1944) 24 Cal.2d 133; 140, 148 P.2d 19 [156 A.L.R. 1221].) As we observed in Butigan v. Yellow Cab Co. (1958) 49 Cal.2d 652, 660–661, 320 P.2d 500, 505, ‘The determination whether, in a specific instance, the probable effect of the instruction has been to mislead the jury and whether the error had been prejudicial so as to require reversal depends on all the circumstances of the case, including the evidence and the other instructions given. No precise formula can be drawn.’ (See also Bridgman v. Safeway Stores, Inc. (1960) 53 Cal.2d 443, 450, 2 Cal.Rptr. 146, 348 P.2d 696; Alarid v. Vanier (1958) 50 Cal.2d 617, 625, 327 P.2d 897.)'

Whether the instruction thus given and refused resulted in the jury being misled requires some consideration of the nature and source of damages attributable to the nuisance urged to exist in the case at bench.

It is generally recognized that where injury from a nuisance is likely to continue indefinitely such that the nuisance can be considered ‘permanent’, then the plaintiff may elect ‘to recover past and future damages in one action.’ (4 Witkin, Summary of Cal.Law (1974) Torts § 929, p. 3210–3211; Spaulding v. Cameron (1952) 38 Cal.2d 265, 267, 239 P.2d 625). In such cases the measure of real property damages is the diminution in the value of the land caused by the nuisance. Such property damages are necessarily encompassed within the concept that, in an action for damages for a nuisance, a plaintiff is entitled to recover all of the injuries and losses proximately caused by such nuisance, whether real or personal. (See 58 Am.Jur.2d, Nuisances, § 120, p. 687; Kornoff v. Kingsburg Cotton Oil Co., (1955) 45 Cal.2d 265, 271, 288 P.2d 507; Spaulding v. Cameron, supra; Nestle v. City of Santa Monica (1972) 6 Cal.3d 920, 937, 101 Cal.Rptr. 568, 496 P.2d 480.)

In Herzog v. Grosso (1953) 41 Cal.2d 219, 225, 259 P.2d 429, 433, our Supreme Court stated:

‘Once a cause of action for trespass or nuisance is established, an occupant of land may recover damages for annoyance and discomfort that would naturally ensue therefrom. (Citations omitted).’

It is thus proper to consider all the injuries and losses caused by the nuisance, such as diminution in the market or rental value of plaintiffs' property; the discomfort, annoyance, and inconvenience in the use thereof; injury to the health of the plaintiffs and their children; loss of or damage to crops; and all other expenses or loss reasonably incurred (or to be incurred) by reason of the nuisance. For reasons which will hereafter become apparent we specifically note that one element of claimed damage by plaintiffs, under their nuisance cause of action, was compensation for the diminution in the value of their land proximately caused by a continuous and permanent nuisance, for which the jury assessed damages in the sum of $32,000.00.

The giving of plaintiffs' Instruction 6 –A (supra) erroneously instructed the jury that in determining the damage to plaintiffs' property the plaintiffs would be entitled to recover ‘the difference, if any, in the present fair market value of the property as the sum would have been without the construction of the sewage treatment plant by the City of Madera, and the present fair market value after said plant was constructed and put into operation.’ (Emphasis added.)

Such instruction, dealing specifically with a crucial and major aspect of plaintiffs' asserted damages, told the jury if it found a permanent nuisance existed, and proximately damaged plaintiffs' property, to determine the amount of diminution in value of plaintiffs' land by comparing values before and after the sewage treatment plant was constructed and allow such differences as damage thereto. We hold the correct rule to be that in a noxious odor nuisance case, where diminution in the value of land is involved, the so-called before market value of the property relates to the property value before the odorous nuisance arises, and not before the construction of the sewage facility from which obnoxious odors may emante.

We do not believe it unreasonable to observe that few citizens desire to reside or farm adjacent to a sewage treatment facility regardless of its possible odor free operation. Still, absent noxious odors or some other nuisance condition included within the language of Civil Code section 3479, proximity alone is a condition which must ordinarily be endured without redress. To hold otherwise unfairly exposes the public entity to suits and for damages for activities and conduct that would not ordinarily ripen into a noxious nuisance until the facility was at least put into operation to such a degree that obnoxious odors emanate therefrom.

To the extent that the City of Madera acted pursuant to express statutory authority in constructing and operating its sewage treatment facility, such governmental activity could not be deemed a nuisance. (Civ.Code, § 3482, supra.)

As noted in City of Pasadena v. Stimson (1891) 91 Cal. 238, 254–255, 27 P. 604, 608:

‘There was no evidence that the sewer, as it was proposed to construct it, would be more of a nuisance than any sewer would be. So far as it appears, the sewer was well planned, according to current sanitary views. Certainly there was nothing tending to show that it was an improper kind of sewer, and therefore it could not be regarded as a nuisance per se. A sewer in the neighborhood of dwellings may be an evil, but it is evident that the legislature regards it as a necessary evil, since it allows private property to be taken for the construction of sewers. Sewers are in fact a necessary evil; but when they are planned and constructed with reasonable regard to the results of sanitary teachings they are authorized by statute, and ‘nothing which is done or maintained under the express authority of a statute can be deemed a nuisance.’ Civil Code, § 3482.

‘In short, the plaintiff, being a city with sewage to dispose of, and having a sewer farm to which it has apparently a right to conduct it, has necessarily the right to construct such a sewer as the statute (section 1238, Code Civil Proc.) contemplates, and such a sewer cannot be a nuisance in the strict sense of the term. That it may occasion loss or injury to others for which they will be entitled to compensation is a different proposition, which will be considered in another connection.’

Noting the significant distinction between an act which is specifically authorized and the manner in which the authorized activity is performed, the Court in Venuto v. Owens-Corning Fiberglass Corp. (1971) 22 Cal.App.3d 116, at 128–129, 99 Cal.Rptr. 350, at 358, stated:

‘Adverting to section 3482 of the Civil Code, we note that the statute applies only to a specific act authorized. (Hassell v. San Francisco, 11 Cal.2d 168, 171, 78 P.2d 1021; (Citations omitted.) In Hassell, the Supreme Court, in alluding to the defense of express statutory authority contained in section 3482, stated the applicable rule to be that expressed in 46 Corpus Juris, page 674, as follows: ‘A statutory sanction cannot be pleaded in justification of acts which by the general rules of law constitute a nuisance, unless the acts complained of are authorized by the express terms of the statute under which the justification is made, or by the plainest and most necessary implication from the powers expressly conferred, so that it can be fairly stated that the legislature contemplated the doing of the very act which occasions the injury.’ (11 Cal.2d at p. 171, 78 P.2d [1021] at p. 1022; see People v. Glenn-Colusa Irr. Dist. [127 Cal.App. 30, 15 P.2d 549].) Accordingly, although an activity authorized by statute cannot be a nuisance, the manner in which the activity is performed may constitute a nuisance. (Bright v. East Side Mosquito etc. Dist., 168 Cal.App.2d 7, 11, 335 P.2d 527; (Citations omitted). We perceive, moreover, that it is a well-settled principle of nuisance law that the adoption of the most approved appliances and methods of production does not justify the continuance of that which, in spite of them, remains a nuisance. Miles v. A. Arena & Co., supra, 23 Cal.App.2d 680, 684, 73 P.2d 1260.)'

City of Madera forcefully urges that it is not liable for the mere existence of a sewage treatment facility which produces some odors, but is only liable if such odors go beyond what could be termed normal for such a facility. This on the premise that since the City is authorized to build and operate such a facility it does so under the protective authority of Civil Code section 3482.

Whatever the state of governmental immunity before 1972 respecting the matter of nuisance, our Supreme Court in Nestle v. City of Santa Monica, 6 Cal.3d 920, 937, 101 Cal.Rptr. 568, 579 settled the question by stating:

‘We therefore conclude that section 815 of the Government Code does not bar nuisance actions against public entities to the extent such actions are founded on section 3479 of the Civil Code or other statutory provision that may be applicable. . . .’

Relying on Lombardy v. Peter Kiewit Sons' Co. (1968) 266 Cal.App.2d 599, 72 Cal.Rptr. 240, defendant City asserts that since recovery was denied for claimed nuisance due to dust, noise and fumes, the consequence of the public using a freeway constructed adjacent to a plaintiff's property, the same immuniy applies to noxious odors emanating from a sewage treatment facility. We disagree.

As indicated in the record, the location of plaintiffs' property and the direction of the prevailing wind support the contention that the degree and consequences of the odorous nuisance is peculiar and special to plaintiffs.

We know of no rule of law which creates a right or privilege in a lawfully constructed sewage treatment facility to emit obnoxious odors to the special detriment of the health, senses or comfortable enjoyment of life or property of an adjoining landowner.

The general authority of a municipality to construct, maintain and operate a sewage treatment facility does not include express or implied authority to operate such facility with emanating noxious odors, though they be occasional. Instead, in each case, it is a question of fact as to whether the degree, quantum and persistence of such odors reaches that level of offensiveness or interference with the rights of others so as to constitute a compensable nuisance as defined in Civil Code section 3479. It follows that the giving of plaintiffs' Instruction 6–A was prejudicially erroneous.

2. Summary Judgment as to Action for Inverse Condemnation.

Before the conclusion of plaintiffs' case, the trial court granted defendant City's motion for a summary judgment as to plaintiffs' fourth cause of action seeking damages for inverse condemnation.

Plaintiff landowners assert that where acts of the City have caused a decrease in the market value of the property, damages for such decrease may be obtained by inverse condemnation whether the damage is physical or otherwise. Defendant City of Madera argues that inverse condemnation requires ‘actual physical damage to the property, except in access cases'. In the case of People v. Symons (1960) 54 Cal.2d 855, 858–859, 9 Cal.Rptr. 363, 365, 357 P.2d 451, 453, our Supreme Court held:

“The constitution does not, however, authorize a remedy for every diminution in the value of property that is caused by a public improvement. The damage for which compensation is to be made is a damage to the property itself, and does not include a mere infringement of the owner's personal pleasure or enjoyment. Merely rendering private property less desirable for certain purposes, or even causing personal annoyance or discomfort in its use, will not constitute the damage contemplated by the constitution; but the property itself must suffer some diminution in substance, or be rendered intrinsically less valuable, by reason of the public use. The erection of a county jail or a county hospital may impair the comfort or pleasure of the residents in that vicinity, and to that extent render the property less desirable, and even less salable, but this is not any injury to the property itself, so much as an influence affecting its use for certain purposes. . . .”

The court further stated at page 860, 9 Cal.Rptr. at page 366, 357 P.2d at page 454:

‘It is established that when a public improvement is made on property adjoining that of one who claims to be damaged by such general factors as change of neighborhood, noise, dust, change of view, diminished access and other factors similar to the damages claimed in the instant case, there can be no recovery where there has been no actual taking or severance of the claimant's property.’

Other cases cited for our consideration are Frustuck v. City of Fairfax (1963) 212 Cal.App.2d 345, 28 Cal.Rptr. 357, in which the court held that a property owner could recover in inverse condemnation where a city drainage system diverted water and caused it to flow over plaintiff's land. In so holding the court stated that ‘a taking is not restricted to a mere change of physical possession, but includes a permanent or temporary deprivation of the owner of the use or enjoyment of his land’. (Id. at 364, 28 Cal.Rptr. at 369.)

In Lombardy v. Peter Kiewit Sons' Co., supra, 266 Cal.App.2d 599, 72 Cal.Rptr. 240 (disapproved in Southern Cal. Edison Co. v. Bourgerie (1973) 9 Cal.3d 169, 175, 107 Cal.Rptr. 76, 507 P.2d 964 to the extent inconsistent with the views expressed therein) an inverse condemnation action was brought by adjacent property owners for construction of a freeway. In holding the complaint did not state a cause of action in inverse condemnation, the court stated:

‘No recovery in inverse condemnation may be had unless damage in a substantial amount to the property itself has been sustained. (Citations omitted.)

‘The mental, physical and emotional distress allegedly suffered by plaintiffs by reason of the fumes, noise, dust, shocks and vibrations incident to the construction and operation of the freeway does not constitute the deprivation of or damage to the property or property rights of plaintiffs for which they are entitled to be compensated.’ (Id., 266 Cal.App.2d at 602–603, 72 Cal.Rptr. at 242.)

In Nestle v. City of Santa Monica (1972) 6 Cal.3d 920, 101 Cal.Rptr. 568, cited by both parties, nearby property owners brought an inverse condemnation action for vibration, fumes, and noise from jet aircraft landing at an airport. Our Supreme Court did not reach the issue of whether a cause of action was stated but instead held there was substantial evidence to support the lower court's finding of no property damage.

We think the question of an actual, physical taking was put to rest by Justice Ashby in Aaron v. City of Los Angeles (1974) 40 Cal.App.3d 471, 483–484, 115 Cal.Rptr. 162, 170 cert. den., 419 U.S. 1122, 95 S.Ct. 806, 42 L.Ed.2d 822 (1975), in which owners of nearby residential properties sued in inverse condemnation for damages caused by noise from jet aircraft taking off and landing at the airport. The trial court held the defendant City liable and the court of appeal affirmed in an excellent opinion which reviews much of the law of inverse condemnation. The court phrased its holding as follows:

‘The municipal owner and operator of an airport is liable for a taking or damaging of property when the owner of property in the vicinity of the airport can show a measurable reduction in market value resulting from the operation of the airport in such manner that the noise from aircraft using the airport causes a substantial interference with the use and enjoyment of the property, and the interference is sufficiently direct and sufficiently peculiar that the owner, if uncompensated,, would pay more than his proper share to the public undertaking.’

We perceive no sound reason why the rule enunciated in Aaron, supra, with respect to noise from aircraft, should not be equally applicable to obnoxious odors attributable to the operation of a sewage treatment plant. Accordingly we hold the rule to be that a municipality which constructs and operates a sewage treatment plant is liable for a taking or damaging of property when the owner of the property in the vicinity of the sewage treatment plant can show a measurable reduction in market value resulting from the operation of the sewage treatment plant in such a manner that obnoxious odors therefrom cause a substantial interference with the use and enjoyment of the property, and the interference is sufficiently direct and sufficiently peculiar that the owner of the land, if uncompensated, would result in his paying more than his proper share to the public under-taking.

Applying this principle to the facts alleged, plaintiffs asserted in their action for inverse condemnation that prevailing winds carry noxious odors from the sewage plant to the plaintiffs' property making it ‘untenable for residential purposes', and decreasing ‘its value for agricultural purposes'. Plaintiffs alleged property damage totalling $127,385, plus $80 a month loss in rental value from a rental house. In addition plaintiffs allege physical, mental pain and suffering. While the complaint does not specify with great particularity the extent to which the damage suffered was peculiar to the plaintiffs, we do note, with respect to the proof offered at the trial that plaintiffs' property was the only property severely affected by the sewage treatment plant odors because it lay in the direct path of the prevailing winds.

As a general principle plaintiff landowners are not entitled to recover damages for the same diminution in the value of their property which is the consequence of a permanent nuisance, and the diminution in the value of their property which is the consequence of a taking by inverse condemnation. In the case at bench the diminution in value under either theory is asserted to be the consequence of an invasion of noxious fumes and odors. Under such circumstances we hold that a landowner is entitled to and required to make an election at the conclusion of the evidence whether to submit his case to the trier of fact on the theory of inverse condemnation or permanent nuisance.

It is settled law that the measure of damages for inverse condemnation is determined by the value of the take, and does not entitle the condemnee to compensation for personal injuries, annoyance or other items of personal discomfort. Pursuant to section 1246.3 of the Code of Civil Procedure, however, a successful plaintiff in an action for inverse condemnation is entitled to recover his reasonable costs, including attorney, appraisal and engineering fees. (Stone v. City of Los Angeles (1975) 51 Cal.App.3d 987, 998, 124 Cal.Rptr. 822.)

In the case at bench, plaintiffs personally occupied their property, and thus sought and were awarded compensation for personal detriment suffered beyond the mere diminution in the value of their real property based on their cause of action for permanent nuisance. It would of course be improper to speculate upon retrial of the case, what the evidence might finally establish, but the evaluation thereof should be the prerogative of the damaged plaintiffs. By granting defendant City's motion for summary judgment, plaintiffs were denied the opportunity to elect which theory might produce the best net recovery under the circumstances.

The judgment on the verdict and the judgment granting the summary judgment are reversed. Each side to bear their own costs on appeal.



CARTER, Associate Justice.* FN* Assigned by the Chairman of the Judicial Council.

GEO. A. BROWN, P. J., and GARGANO, J., concur.

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