BAKER v. BURBANK GLENDALE PASADENA AIRPORT AUTHORITY

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Court of Appeal, Second District, Division 4, California.

Mr. & Mrs. Kenneth L. BAKER, et al., Plaintiffs and Appellants, v. BURBANK–GLENDALE–PASADENA AIRPORT AUTHORITY, Defendant and Respondent.

Civ. No. 69670.

Decided: December 14, 1983

Schimmenti, Mullins & Berberian, and John J. Schimmenti, El Segundo, for plaintiffs and appellants. Kadison, Pfaelzer, Woodard, Quinn & Rossi, Richard K. Simon, Michael C. Kelley, James I. Ham, Los Angeles, for defendant and respondent.

BACKGROUND

This is an appeal from a judgment of dismissal entered on April 5, 1983, following the sustaining of a demurrer by respondent Burbank-Glendale-Pasadena Airport Authority (hereinafter respondent) to appellants' first amended complaint for inverse condemnation and nuisance.

Appellants are homeowners who reside adjacent to the Burbank-Glendale-Pasadena Airport (hereinafter Airport).   On June 10, 1982, appellants filed a suit for inverse condemnation and nuisance based on damage to persons and property caused by excessive noise, smoke and vibrations from flight patterns to and from the Airport and over appellants' homes.   Respondent and the cities of Glendale, Burbank and Pasadena were named as defendants.

The first cause of action of the complaint is for inverse condemnation “for the taking of an easement” over appellants' properties.   The cause of action alleges that respondent, “on January 29, 1978, authorized jet take-offs and landings from [Airport].   The activities ․ subject [appellants'] properties to noise, smoke and vibration, which constituted a taking on or about January 29, 1978.”   It is further alleged that “said flights over [appellants'] ․ properties have continued to the date of [the] complaint” and that the flights “take place at all hours of the day and night.”   The cause of action alleges that the “flights cause substantial interference with the use and peaceful enjoyment” of appellants' properties and that the “flights, which constitute a taking, commenced on January 29, 1978.”

It is alleged that the “easement for noise, smoke and vibration over [appellants'] properties was taken for a public use.”   The cause of action alleges that appellants are “claiming compensation for ․ damages and taking of an easement, physical injuries to the real properties, and severance damages in the amounts of their claim ․”

It is further alleged that the easement taken by respondent is “an air easement ․ taken in the airspace above the surface of the properties.   The air easement is for ‘excessive noise, vibration discomfort, or interference with the use and enjoyment of real property located adjacent to or in the vicinity of an airspace and ․ reduction in the market value of real property by reason thereof ․ through the operation of aircraft to and from the airport,’ as those terms are used in California Code of Civil Procedure § 1239.3.[1 ] ”

The second cause of action is for nuisance.   The allegations of that cause of action are, in essence, that as a result of the flight patterns authorized by respondent, appellants “suffered interference to the senses, hearing and health [from the] noise and vibrations from [Airport].”  It is alleged that each appellant “suffered personal injury, in the amount of $100,000.00” and that the “personal injury is for the period from one hundred days prior to the filing of the claim to the date of the trial.” 2

On September 24, 1982, a demurrer filed by defendant cities was sustained without leave to amend.   A judgment of dismissal was entered as to those defendants on October 5, 1982, and they are not parties to this appeal.

The basis of defendant cities' demurrer to the complaint was that, as a matter of law, only respondent would be liable for any damages.   Pursuant to Government Code section 6500 et seq.,3 defendant cities executed a “joint exercise of powers agreement” whereby respondent was created for purposes of acquiring and operating the then named Hollywood-Burbank Airport.  (Presently the Airport is named the Burbank-Glendale-Pasadena Airport).   Pursuant to this agreement, dated June 14, 1977, respondent was to become the owner and operator of the Airport and, as authorized by section 6508.1, respondent was “created [as] a public entity, separate and apart from the Parties hereto ․   The debts, liabilities and obligations of the Authority [respondent] do not constitute debts, liabilities or obligations of the Parties.”

On October 19, 1982, the complaint was amended by adding the names of Michael A. Rotella and John and Allison Rocke as plaintiffs to the complaint.   A copy of the claim for damages which had been submitted to respondent and defendant cities by Mr. Rotella and Mr. and Mrs. Rocke was also added as an exhibit to the complaint.   A demurrer to the amended complaint was filed by respondent on November 18, 1982.

On April 5, 1983, the trial court issued an order sustaining the demurrer of respondent to the first amended complaint without leave to amend.   The order and judgment of dismissal which followed were based upon the following rulings:

“(1) The First Cause of Action (inverse condemnation) of the First Amended Complaint fails to state facts sufficient to constitute a cause of action;

“(2) The Second Cause of Action of the First Amended Complaint seeks damages for the maintenance of a nuisance.   The proper legal test for determining whether the airport is a permanent nuisance is whether the nuisance is subject to judicial, as opposed to voluntary, abatement.   As an airport serving the public, the [Airport] is not subject to judicial abatement.   Therefore, if the airport is a nuisance, it is a permanent nuisance and plaintiffs' First Amended Complaint fails to state facts sufficient to constitute a cause of action and is barred by the provisions of California Government Code Section 911.2 and by the California Code of Civil Procedure Sections 338(2) and 340.

“The Court further finds that there is no reasonable possibility that plaintiffs can amend their First Amended Complaint to state any cause of action entitling plaintiffs to any relief against the defendant and that defendant's demurrer to plaintiff's First Amended Complaint should therefore be sustained without leave to amend․”

ISSUES

The following issues are raised in the instant appeal:  (1) Whether the trial court erred in sustaining the demurrer to the first cause of action for inverse condemnation on grounds that a cause of action for inverse condemnation could not be stated because respondent is not authorized to exercise the power of eminent domain to acquire air easements over appellants' properties;  (2) Whether the trial court erred in sustaining the demurrer to the second cause of action for nuisance on grounds that if the Airport is a nuisance it must be deemed a permanent nuisance and the cause of action for nuisance was, therefore, barred by the applicable statute of limitations as untimely.

For reasons discussed below, we conclude that the trial court properly sustained the demurrer to the first cause of action for inverse condemnation because respondent is not statutorily authorized to exercise the power of eminent domain.   We do, however, conclude that the demurrer to the second cause of action was improperly sustained because appellants may, and have elected to, treat the alleged nuisance as continuous and this cause of action, therefore, is not untimely.

DISCUSSION

Inverse Condemnation

 On this appeal we must first resolve the issue whether an action for inverse condemnation may be maintained against a public entity only where that public entity has the capacity to exercise the power of eminent domain.   Respondent's demurrer to the cause of action for inverse condemnation was based solely on grounds that a cause of action for inverse condemnation cannot be stated against it because it is not authorized by statute to condemn avigation easements.   Respondent forwards the same argument here.   In support of this argument respondent relies upon various provisions of the Code of Civil Procedure, the Government Code and the Public Utilities Code.   On the basis of the code provisions cited by respondent it is argued that since respondent cannot acquire the subject air easements through the power of eminent domain and since existence of the power to exercise eminent domain is necessary to maintain an action for inverse condemnation, the trial court properly sustained its demurrer to appellants' cause of action for inverse condemnation.

We conclude that respondent properly contends that an action for inverse condemnation may be maintained against it only if it could have taken the air easements at issue through the exercise of the power of eminent domain.   We are also persuaded by respondent's argument that it does not have the power to exercise eminent domain because it is not authorized by law to take the air easements at issue here.4

The most recent decision by this state's Supreme Court concerning eminent domain is found in City of Oakland v. Oakland Raiders (1982) 32 Cal.3d 60, 183 Cal.Rptr. 673, 646 P.2d 835.   In that case, the court reiterated the established rule that “ ‘The power of eminent domain is an inherent attribute of sovereignty.’  (County of San Mateo v. Coburn (1900) 130 Cal. 631, 634 [63 P. 78];  accord City of Anaheim v. Michel (1968) 259 Cal.App.2d 835, 837 [66 Cal.Rptr. 543];  Anaheim Union High Sch. Dist. v. Vieira (1966) 241 Cal.App.2d 169, 171 [51 Cal.Rptr. 94].)  This sovereign power has been described as ‘universally’ recognized and ‘necessary to the very existence of government.’  (1 Nichols on Eminent Domain (3d ed. 1980) §§ 1.11, 1.14 [2], pp. 1–10, 1–22.)   When properly exercised, that power affords an orderly compromise between the public good and the protection and indemnification of private citizens whose property is taken to advance that good.   That protection is constitutionally ordained by the Fifth Amendment to the United States Constitution, which is made applicable to the states by nature of the Fourteenth Amendment (Chicago, Burlington Sc. R'd. v. Chicago (1897) 166 U.S. 226, 233–241 [17 S.Ct. 581, 583–586, 41 L.Ed.2d 979] ) and by article I, section 19 of the California Constitution.  [¶ ] Because the power to condemn is an inherent attribute of general government, we have observed that ‘constitutional provisions merely place limitations upon its exercise.’  (People v. Chevalier (1959) 52 Cal.2d 299, 304 [340 P.2d 598].)  The two constitutional restraints are that the taking be for a ‘public use’ and that ‘just compensation’ be paid therefor.  (Ibid.;  City of Anaheim, supra, 259 Cal.App.2d at p. 837 [66 Cal.Rptr. 543].)  ․”  (City of Oakland v. Oakland Raiders, supra, at p. 64, 183 Cal.Rptr. 673, 646 P.2d 835.)

In addition to eminent domain proceedings, the other procedural device for ensuring the constitutional proscription that “private property will not be taken or damaged for public use without just compenstion” is inverse condemnation.   The principal distinction between the two procedures is that in eminent domain proceedings, the public authority takes the initiative, whereas in inverse condemnation proceedings it is the property owner who initiates litigation.  (See Klopping v. City of Whittier (1972) 8 Cal.3d 39, 43, 104 Cal.Rptr. 1, 500 P.2d 1345;  Selby Realty Co. v. City of San Buenaventura (1973) 10 Cal.3d 110, 119, 109 Cal.Rptr. 799, 514 P.2d 111;  Cothran v. San Jose Water Works (1962) 58 Cal.2d 608, 25 Cal.Rptr. 569, 375 P.2d 449;  Frustuck v. City of Fairfax (1963) 212 Cal.App.2d 345, 28 Cal.Rptr. 357.)

We have discovered no California cases which specifically deal with the question whether actions in inverse condemnation may be maintained only against public authorities who could have first, but did not, initiate formal eminent domain proceedings.   However, cases and commentators do suggest that it is only upon this principle that actions or proceedings in inverse condemnation may be brought.

In United States v. Clarke (1980) 445 U.S. 253, 100 S.Ct. 1127, 63 L.Ed.2d 373, the Supreme Court determined that Title 25 of the United States Code, section 357, which provides that “lands allotted in severalty to Indians may be condemned for any public purpose under the laws of the State or Territory” (at p. 254, 100 S.Ct. at 1128) did not authorize a state or local government to “condemn” allotted Indian trust lands by physical occupation.   The court, therefore, concluded that an action in inverse condemnation could not be maintained.   The court observed that the public entities there involved had never instituted formal action to condemn the land in question.   The court expressly rejected the Ninth Circuit Court of Appeals holding that section 357 of Title 25 of the United States Code permitted acquisition of allotted lands by inverse condemnation after also rejecting the Court of Appeals reasoning that “ ‘once the taking has been accomplished ․ it serves little purpose to interpret the statute to refuse to permit an inverse condemnation suit to be maintained on the groun[d] that the state should have filed an eminent domain action prior to the taking.’ ”  (At p. 255, 100 S.Ct. at 1129.)

The Supreme Court discussed, at length, the nature of eminent domain and inverse condemnation proceedings.   The court wrote, “[t]he phrase ‘inverse condemnation’ appears to be one that was coined simply as a shorthand description of the manner in which a landowner recovers just compensation for a taking of his property when condemnation proceedings have not been instituted.   As defined by one land use planning expert, ‘[i]nverse condemnation is “a cause of action against a governmental defendant to recover the value of property which has been taken in fact by the governmental defendant, even though no formal exercise of the power of eminent domain has been attempted by the taking agency.” ’   D. Hagman, Urban Planning and Land Development Control Law 328 (1971) (emphasis [omitted] ).   A landowner is entitled to bring such an action as a result of ‘the self-executing character of the constitutional provision with respect to compensation․’   See 6 P. Nichols, Eminent Domain § 25.41 (3d rev. ed. 1972).   A condemnation proceeding, by contrast, typically involves an action by the condemnor to effect a taking and acquire title.   The phrase ‘inverse condemnation,’ as a common understanding of that phrase would suggest, simply describes an action that is the ‘inverse’ or ‘reverse’ of a condemnation proceeding.  [¶]  There are also important practical differences between condemnation proceedings and actions by landowners to recover compensation for ‘inverse condemnation.’   Condemnation proceedings, depending on the applicable statute, require various affirmative action on the part of the condemning authority.   To accomplish a taking by seizure, on the other hand, a condemning authority need only occupy the land in question.   Such a taking thus shifts to the landowner the burden to discover the encroachment and to take affirmative action to recover just compensation․”  (At p. 257, 100 S.Ct. at 1130.)

The court concluded by holding that the language of section 357, authorizing condemnation of lands, referred “not to an action by a landowner to recover compensation for a taking, but to a formal condemnation proceeding instituted by the condemning authority.”  (United States v. Clarke, supra, 445 U.S. at p. 258, 100 S.Ct. at 1131.)

This case does suggest that an action in inverse condemnation against a public authority may be instituted only if the public authority was authorized to condemn the property or property interest in question in the first place through exercising the power of eminent domain.  (See also, Agins v. Tiburon (1980) 447 U.S. 255, 258, fn. 2, 100 S.Ct. 2138, 2140, fn. 2, 65 L.Ed.2d 106.)

In Breidert v. Southern Pac. Co. (1964) 61 Cal.2d 659, 39 Cal.Rptr. 903, 394 P.2d 719, an inverse condemnation case, the court was called upon to determine “whether a property owner who loses the use of the next intersecting street which affords him access to the general system of public streets should be compensated.”  (At p. 661, 39 Cal.Rptr. 903, 394 P.2d 719.)   The court held that the property owner's complaint for inverse condemnation withstood general demurrers because it alleged, inter alia, that the closing of the street crossing in question substantially impaired the property owner's right of access to the street.   One of the contentions raised by the railroad was that it was not a proper party defendant to the action.   This contention was rejected by the court which wrote, “defendant railroad was an active joint participant in closing the crossing․”  (At p. 662, 39 Cal.Rptr. 903, 394 P.2d 719.)   The court arrived at this conclusion after taking judicial notice that a public utilities commission decision authorized the City of Los Angeles to close the street crossing in issue.   It is apparent that the city, in turn, authorized the defendant railroad to participate in closing the street crossing.   Implicit in the court's determination that the railroad was a proper party defendant in the inverse condemnation action was that it was a proper party defendant only by virtue of the authorization for it to participate in closing the street crossing.

Commentators also recognize that existence of the power of eminent domain is a prerequisite to liability in inverse condemnation proceedings instituted by private property owners.   One commentator has observed that “an airport approach height restriction would, apparently, require payment of compensation if invoked to limit development of property located adjacent to a publicly operated airport, but not if applied to like property on the periphery of a privately owned and operated airport.”  (Van Alstyne, Modernizing Inverse Condemnation:  A Legislative Prospectus, 8 Santa Clara Lawyer 1, 22.)   Another commentator expressly observed that, “[t]he remedy of inverse condemnation, by the very premise which gives rise to it, is available only as against defendants who possess the power of eminent domain.”  (3 P. Nichols, Eminent Domain § 8.1[4] 8–39 (1981).) 5

We conclude, then, that respondent correctly urges that an action in inverse condemnation may only be maintained against a party in whom the power of eminent domain is vested.

 We turn now to the question of whether respondent has the power to exercise eminent domain for purposes of acquiring the air easements involved in the case at bar.   The general rule with respect to public entities such as respondent is that such public entities have “ ‘․ no inherent power of eminent domain and can exercise it only when expressly authorized by law.  [Citation.]’ ”  (City of Oakland v. Oakland Raiders, supra, 32 Cal.3d 60, 64, 183 Cal.Rptr. 673, 646 P.2d 835.)   We are thus obliged to examine the statutes pertinent to the case before us.6

 Both parties to this appeal refer us to section 6546.1 and Public Utilities Code section 21652.   Section 6546.1, contained in article 2 entitled, “Power to Issue Revenue Bonds,” provides:

“In the County of Los Angeles, any agency, commission, or board provided for by joint powers agreement entered into by cities pursuant to Article 1 (commencing with Section 6500) of this chapter for the purpose of the acquisition, operation, repair, maintenance, improvement and administration of the Hollywood-Burbank Airport as a public airport, pursuant to the Federal Aviation Act of 1958, as amended, may carry out such purpose and may authorize the issuance of revenue bonds, pursuant to this article, to pay for acquiring, repairing, improving, financing and refinancing such project including all facilities and improvements and all expenses incidental thereto or connected therewith.   Property tax revenues accruing to, levied by, or collected by any local agency which is a party to such a joint powers agreement shall not be used to redeem such revenue bonds unless an ordinance authorizing the use of such property tax revenues for such purposes is approved by a majority vote of the electors of the local agency voting on the issue.   In operating the airport, the separate public entity above mentioned shall not permit or authorize any activity in conjunction with the airport which results in an increase in the size of the noise impact area based on a community noise equivalent level of 70 decibels as established pursuant to Title 21, California Administrative Code, Chapter 2.5, Subchapter 6, and shall further comply with the future community noise equivalent levels prescribed by such title as it now exists or is hereafter amended.

“The separate public entity shall implement the noise monitoring requirements set forth in Title 21, California Administrative Code, Chapter 2.5, Subchapter 6.   In addition, the entity shall diligently pursue all reasonable avenues available to insure that the adverse effects of noise are being mitigated to the greatest extent reasonably possible.

“The separate public entity shall not authorize or permit the lengthening of runways defined herein as the paved portions of the runways presently on airport property, or the purchase of fee title to condemned real property zoned for residential use as of the effective date of this statute.

“The power to issue revenue bonds under this section shall be of no further force and effect after December 31, 1980, unless (1) the entity shall have initially issued revenue bonds on or prior to December 31, 1980, or (2) the entity is unable to initially issue revenue bonds to accomplish the purpose of this section by reason of litigation, in which case the power to initially issue revenue bonds under this section shall continue to be effective until the final determination of such litigation and for one year thereafter.   If the entity shall have initially issued revenue bonds within either of the time periods permitted by the prior sentence of this paragraph, the power to issue revenue bonds under this section shall continue so long as this section shall be in effect.”

Public Utilities Code section 21652 provides:

“(a) Any person authorized to exercise the power of eminent domain for airport purposes may acquire by purchase, gift, devise, lease, condemnation, or otherwise:

“(1) Any property necessary to permit the safe and efficient operation of the airport, or to permit the removal, elimination, obstruction-marking, or obstruction-lighting of airport hazards, or to prevent the establishment of airport hazards.

“(2) Airspace or an easement in such airspace above the surface of property where necessary to permit imposition upon such property of excessive noise, vibration, discomfort, inconvenience, interference with use and enjoyment, and any consequent reduction in market value, due to the operation of aircraft to and from the airport.

“(3) Remainder property underlying property taken pursuant to paragraph (2), where permitted by Section 1240.410 of the Code of Civil Procedure.

“(b) As used in this section, ‘property’ includes real and personal property and any right or interest therein, whether within, beyond, adjacent to, or in the vicinity of, the boundaries of an airport or airport site, and, by way of illustration and not by way of limitation, includes air rights, airspace, air easements, and easements in airport hazards.”

Appellants urge that while section 6546.1 prohibits respondent from acquiring “fee title to condemned real property,” Public Utilities Code section 21652, nevertheless, authorizes respondent to acquire fee title to air easements over their private property by exercising the power of eminent domain.   Respondent, on the other hand, argues that the plain language of section 6546.1 prohibits it from acquiring, through condemnation, fee title to air easements as well.

We conclude that neither section 6546.1 nor Public Utilities Code section 21652 authorizes respondent to exercise the power of eminent domain to acquire the air easements at issue here.   Our conclusion rests upon consideration of the legislative history and intent surrounding the amendment to section 6546.1, in 1978.

The legislative history of section 6546.1 shows that the third paragraph of this section which prohibits respondent from purchasing “fee title to condemned real property zoned for residential use” was added by amendment in 1978.  (Stats.1978, ch. 62, § 1.)   Another provision was added to section 6546.1 by the 1978 amendment.   That provision extended respondent's power to issue revenue bonds necessary to continued operation of the Airport.

Section 2 of Statutes 1978, chapter 62 provides:

“This act is an urgency statute necessary for the immediate preservation of the public peace, health or safety within the meaning of Article IV of the Constitution and shall go into effect immediately.   The facts constituting such necessity are:

“The present owner-operator of the Hollywood-Burbank Airport currently plans to cease operation of said airport.   Because no private person is presently willing and able to acquire and operate said airport, the substantial use thereof by the public will cease unless said airport is acquired and operated by a public entity.   Because the principal service area of the airport consists of more than one city in the County of Los Angeles but not the entire county, a joint powers entity established by the cities in said county which are located in said principal service area will best serve the interests of the public using the airport.   Because this act will empower such a public entity to acquire, operate, repair, maintain, improve and administer said airport, it is necessary that this act take effect immediately in order to prevent interruption in or termination of public use of the Hollywood-Burbank Airport.”

Further enlightenment as to the legislative intent in promulgating the 1978 amendment of section 6546.1 is found in the summary digest for laws enacted in 1978.   There, it is stated that:

“Existing law provides that in the County of Los Angeles, any agency, commission or board established pursuant to the exercise of the joint powers agreement entered into by cities for the purpose of maintaining the Hollywood-Burbank Airport as a public airport, is authorized to issue revenue bonds.   The power to issue such bonds terminates as of December 31, 1980.  [¶] This bill would extend the power to issue revenue bonds as long as the provision continues to be in effect if the entity has initially issued such bonds on or prior to December 31, 1980.   The requirement of initial issuance of such bonds would be extended in the event issuance of bonds is prevented by litigation.  [¶] This bill would take effect immediately as an urgency statute.”  (1978 Summary Digest, ch. 62, p. 17.)

From this scant legislative history, several conclusions respecting the promulgating intent of the 1978 amendment of section 6546.1 may be drawn.   First, and most significant in our view, is that the primary purpose of the amendment was to effectuate uninterrupted public use of the Airport by extending respondent's power to issue revenue bonds under certain conditions.   Second, since the history is conspicuously silent as to the intent which motivated addition of the third paragraph of section 6546.1, that paragraph cannot be reasonably construed as evidence of a legislative intent to grant respondent the power of eminent domain.   Third, this paragraph notwithstanding, section 6546.1, cannot be construed as granting to respondent the power of eminent domain as this section primarily relates to the means by which respondent can generate funds to operate and maintain the Airport, i.e., through issuance of revenue bonds.

Contrary to what appellants contend, Public Utilities Code section 21652 does not authorize respondent to take by condemnation the air easements in issue here.   While that section recognizes that air easements may be acquired by condemnation “where necessary to permit imposition ․ of excessive noise, vibration ․ due to the operation of aircraft to and from the airport” (Pub.Util.Code § 21652, subd. (a)(2) ), the section also specifies that only persons “authorized to exercise the power of eminent domain” may acquire such air easements (Pub.Util.Code, § 21652, subd. (a), emphasis added).   This section, therefore, cannot be construed as granting to respondent the power of eminent domain to take the subject air easements.

We conclude, therefore, that respondent does not have statutory power to take the air easements in issue here by exercising the power of eminent domain.   Consequently, since authority to exercise the power of eminent domain is a prerequisite to maintaining an action in inverse condemnation, the trial court properly sustained respondent's demurrer without leave to amend upon those grounds.

Nuisance

The demurrer to appellants' cause of action for nuisance was sustained without leave to amend on grounds that a permanent nuisance is not subject to “judicial abatement” and that “if the airport is a nuisance, it is a permanent nuisance.”   Upon these grounds, the court found that the cause of action for nuisance failed to state facts sufficient to constitute a cause of action and was barred by section 911.2 and Code of Civil Procedure sections 338, subdivision (2) and 340, as untimely.

Appellants contend that the demurrer to the nuisance cause of action was improperly sustained because the nuisance complained of can be abated, is continuous in nature, and is not, therefore, barred by the applicable statute of limitations.   At argument, counsel for respondent conceded that if appellants overcame the statute of limitations problem, a cause of action for damages had been pled.   Accordingly, we restrict our discussion to the question of whether the nuisance is permanent or continuous.

We hold that the order sustaining the demurrer to the cause of action for nuisance was erroneous, but upon slightly different grounds than urged by appellants.   Our discussion begins with the relevant sections of the Civil Code.

Section 3479 of the Civil Code provides:  “Anything which is injurious to health, ․ or offensive to the senses, ․ so as to interfere with the comfortable enjoyment of life or property, ․ is a nuisance.”   The Civil Code also distinguishes nuisances as either public or private.   A public nuisance is defined by Civil Code section 3480 as “․ one which affects at the same time an entire community or neighborhood, or any considerable number of persons, although the extent of the annoyance or damage inflicted upon individuals may be unequal.”   A private nuisance is defined in Civil Code section 3481 as “[e]very nuisance not included in the definition of the last section ․”

 The second cause of action for nuisance seeks damages for personal injuries caused by noise and vibrations and purports to be a cause of action for private nuisance.  (Cf. Venuto v. Owens-Corning Fiberglas Corp. (1971) 22 Cal.App.3d 116, 122–124, 99 Cal.Rptr. 350.)   As observed in the latter case, the significant difference between a private and public nuisance is that the former “is a civil wrong based on disturbance of rights in land” whereas the latter “is not dependent upon a disturbance of rights in land but upon an interference with the rights of the community at large.”  (Id., at p. 124, 99 Cal.Rptr. 350.)   Here, the allegations of the second cause of action for nuisance incorporate most of the allegations of the first cause of action for inverse condemnation, which include, inter alia, the allegation that jet flights over appellants' real properties “cause a substantial interference with the use and peaceful enjoyment of [appellants'] real properties.”   Appellants, as owners and residents of the real property over which flights to and from the Airport are made, have thus adequately alleged interference with a property right upon which to predicate a claim for damages for personal injury arising from private nuisance.

 With respect to private nuisances, Civil Code section 3501 provides that either a civil action (for damages) or abatement are available remedies.   Appellants have not sought abatement of the nuisance but have elected to sue for damages for personal injuries allegedly suffered as a consequence of the activities authorized by respondent.7

 It is well-established in this state that owners or operators of public airports are liable upon a nuisance theory (public or private) for personal injuries and property damage sustained by persons living in areas adjacent to the airports caused by noise and vibrations from aircraft using the facilities.  (Greater Westchester Homeowners Assn. v. City of Los Angeles (1979) 26 Cal.3d 86, 160 Cal.Rptr. 733, 603 P.2d 1329;  Nestle v. City of Santa Monica (1972) 6 Cal.3d 920, 101 Cal.Rptr. 568, 496 P.2d 480.)   Cognizant of this, the question is thus whether the nuisance complained of in the second cause of action is permanent or continuous for purposes of determining whether the statute of limitations bars the cause of action for nuisance.

 There is no apparent dispute by appellants or respondent over the applicable statute of limitations if the nuisance is deemed permanent.   Under the joint exercise of powers agreement executed by defendant cities, respondent was created as a separate public entity.   As such, the provisions of the Tort Claims Act (§ 800 et seq.) are applicable.   Specifically, appellants were required to file a claim with respondent for their personal injuries as a condition precedent to filing a lawsuit for damages against respondent.

Section 911.2 provides:  “A claim relating to a cause of action ․ for injury to person ․ shall be presented ․ not later than the 100th day after the accrual of the cause of action․”   Section 901 provides, in part:  “[T]he date of the accrual of a cause of action to which a claim relates is the date upon which the cause of action would be deemed to have accrued within the meaning of the statute of limitations which would be applicable thereto if there were no requirement that a claim be presented to and acted upon by the public entity before an action could be commenced thereon.”

The applicable statute of limitations for the alleged personal injuries caused by aircraft noise and vibrations as alleged in appellants' second cause of action is one year.  (Code Civ.Proc., § 340.)   Here, appellants instituted the instant lawsuit within six months after their claims were submitted to and denied by respondent (see § 911.2), and within one year of the period for which appellants seek damages for their personal injuries.

Respondent, however, persuaded the trial court that the nuisance complained of was required to be characterized as a permanent nuisance because the airport, itself, could not be abated.

 Where a nuisance is considered permanent, the limitations period runs from the time the nuisance is created.  (Phillips v. City of Pasadena (1945) 27 Cal.2d 104, 107, 162 P.2d 625.)  “On the other hand, if the nuisance may be discontinued at any time it is considered continuing in character.  [Citations.]   Every repetition of a continuing nuisance is a separate wrong for which the person injured may bring successive actions for damages until the nuisance is abated, even though an action based on the original wrong may be barred.”  (Id., at pp. 107–108, 162 P.2d 625.)

 Respondent argues that the sole test for determining whether a nuisance is permanent or continuing depends upon whether the nuisance can be eliminated or abated, or whether it is likely to continue indefinitely.   In support of these arguments, respondent relies primarily upon Spaulding v. Cameron (1952) 38 Cal.2d 265, 239 P.2d 625, and Kornoff v. Kingsburg Cotton Oil Co. (1955) 45 Cal.2d 265, 288 P.2d 507 and Code of Civil Procedure section 731a.8  Close scrutiny of these cases, however, shows that even where a nuisance may not or need not be abated (Code Civ.Proc., § 731a), appellants may, nevertheless, elect to treat that nuisance as continuing.

Spaulding v. Cameron, supra, 38 Cal.2d 265, 239 P.2d 625, involved an action for damages and for injunctive relief brought by a homeowner whose property was subjected to damages from mud caused by the defendant's negligence in constructing a fill during leveling operations conducted by the defendant on his property located near plaintiff's land.   Plaintiff was awarded past and future damages as well as injunctive relief in the form of an order that defendant remove the fill or take protective measures to prevent further damage to plaintiff's property.   The Supreme Court reversed, in part, the trial court's judgment because the award of future damages and the injunction to abate the nuisance were mutually exclusive remedies and plaintiff was not entitled, therefore, to double recovery.   The Supreme Court observed that since there was evidence to support both remedies (anticipated damages and the injunction), it could not be said as a matter of law that the nuisance could or could not be abated.   The cause was remanded to the trial court for a determination whether or not the nuisance was permanent.   The judgment for past and present damages was affirmed.

Kornoff v. Kingsburg Cotton Oil Co., supra, 45 Cal.2d 265, 288 P.2d 507, involved an action by homeowners living adjacent to a cotton gin for damages (past, present and future) for nuisance caused by the noxious odors, fumes, dust and lint created by the cotton gin during its operations.   The evidence showed that the cotton gin was operational for only six months out of each year.   The court observed at the outset of its opinion that “the parties apparently treated the trespass as permanent because of its recurrent character, rather than as a continuous trespass.”  (Id., at p. 268, 288 P.2d 507.)   The issue whether plaintiffs could recover future damages was discussed in light of Spaulding v. Cameron, supra, 38 Cal.2d 265, 239 P.2d 625, and revolved around the question of whether the nuisance created by the cotton gin should be characterized as continuing or permanent.   The court quoted from Spaulding as follows:

“ ‘The remedy for a continuing nuisance was either a suit for injunctive relief or successive actions for damages as new injuries occurred.   Situations arose, however, where injunctive relief was not appropriate or where successive actions were undesirable either to the plaintiff or the defendant or both.   Accordingly, it was recognized that some types of nuisances should be considered permanent, and in such cases recovery of past and anticipated future damages were allowed in one action.  [Citations.]

“ ‘The clearest case of a permanent nuisance or trespass is one where the offending structure or condition is maintained as a necessary part of the operations of a public utility.   Since such conditions are ordinarily of indefinite duration and since the utility by making compensation is entitled to continue them, it is appropriate that only one action should be allowed to recover for all the damages inflicted.   It would be unfair to the utility to subject it to successive suits and unfair to the injured party if he were not allowed to recover all of his probable damages at once.  [Citations.]

“ ‘A more difficult problem is presented, however, if the defendant is not privileged to continue the nuisance or trespass but its abatement is impractical or the plaintiff is willing that it continue if he can secure full compensation for both past and anticipated future injuries.   To attempt categorically to classify such a nuisance as either permanent or not may lead to serious injustice to one or the other of the parties.   Thus, if the plaintiff assumes it is not permanent and sues only for past damages, he may be met with the plea of res judicata in a later action for additional injury if the court then decides the nuisance was permanent in character from its inception.  [Citation.]   Similarly, if the initial injury is slight and plaintiff delays suit until he has suffered substantial damage and the court then determines that the nuisance was permanent, the defendant may be able to raise the defense that the statute of limitations ran from the time of the initial injury.  [Citation.]   On the other hand, if the defendant is willing and able to abate the nuisance, it is unfair to award damages on the theory that it will continue.  [Citations.]

“ ‘Because of these difficulties it has been recognized that in doubtful cases the plaintiff should have an election to treat the nuisance as either permanent or not.  [Citations.]   If the defendant is not privileged to continue the nuisance and is able to abate it, he cannot complain if the plaintiff elects to bring successive actions as damages accrue until abatement takes place.  [Citations.]   On the other hand, if it appears improbable as a practical matter that the nuisance can or will be abated, the plaintiff should not be left to the troublesome remedy of successive actions.  [Citations.]’ ”  (Kornoff v. Kingsburg Cotton Oil Co., supra, 45 Cal.2d at pp. 269–271, 288 P.2d 507.)

The court then made the following observation:  “In the present case, defendant's ginning mill is lawfully operated in a location properly zoned therefor and need not, or may not (Code Civ.Proc., § 731a), be abated.   If plaintiffs are not permitted to sue for all damages, past, present, and future, then they must bring successive actions each year at the close of each ginning season with the attendant risk that the court may determine that the trespass occurring the previous year was a permanent one for which plaintiffs had been theretofore adequately compensated.  [¶] It appears that here plaintiffs elected to sue for all damages past, present and future and that such damages are recoverable under the rule heretofore set forth (Spaulding v. Cameron, supra, 38 Cal.3d 265 [239 P.2d 625] ).”  (Kornoff v. Kingsburg Cotton Oil Co., supra, 45 Cal.2d at p. 271, 288 P.2d 507.)

Implicit in this observation is cognizance of the plaintiffs' election to characterize the nuisance as permanent.   Nothing in Spaulding or Kornoff suggests that where an operation of an enterprise need not or may not be abated (Code Civ.Proc., § 731a), a plaintiff seeking recovery for damages upon a theory of nuisance must elect to treat the nuisance as permanent.   It is also observed that Code of Civil Procedure section 731a does not preclude the rights of landowners, such as appellants, who suffer from airplane annoyances to seek damages from the owners or operators of an airport.  (See Loma Portal Civic Club v. American Airlines, Inc. (1964) 61 Cal.2d 582, 39 Cal.Rptr. 708, 394 P.2d 548;  Greater Westchester Homeowners Assn. v. City of Los Angeles, supra, 26 Cal.3d 86, 160 Cal.Rptr. 733, 603 P.2d 1329.)   There are no California cases which hold that even where injunctive relief is unavailable under Code of Civil Procedure section 731a, the nuisance for which damages or compensation is sought must be characterized as permanent.

Indeed, the language of Nestle v. City of Santa Monica, supra, 6 Cal.3d 920, 101 Cal.Rptr. 568, 496 P.2d 480, supports the conclusion that nuisances caused by the owners or operators of airports are not necessarily permanent but may be characterized as continuous nuisances for purposes of resolving disputes concerning the statute of limitations.   In Nestle, homeowners brought suit against the City of Santa Monica for injuries alleged to have been suffered by virtue of the city's operation of the Santa Monica Airport.   The homeowners sought to recover property and personal injury damages claiming that “vibration, fumes, and noise emanating from jet aircraft landing and taking off at the airport caused damage to their property, interfered with the free enjoyment of their property and resulted in physical pain, suffering and emotional disturbance.”  (Id., at p. 924, 101 Cal.Rptr. 568, 496 P.2d 480.)   The homeowners asserted theories of inverse condemnation, nuisance, negligence and zoning violations as the bases of recovery.   The trial court ruled, inter alia, that the homeowners had failed to state facts sufficient to state a cause of action for nuisance upon the theory that the city was immune from liability for damages.

The Supreme Court reversed that ruling, holding that the City of Santa Monica was not immune from liability.   The court then observed:  “On remand, concern over application of the proper statute of limitations may arise.   If appellants demonstrate that whatever nuisance caused by the defendant is continuing in nature, every repetition of the wrong may create further liability.   Hence, the statute of limitations would not run merely from the original intrusion.   This is the well-settled rule with respect to property damage (see, e.g., Phillips v. City of Pasadena (1945) 27 Cal.2d 104, 107–108 [162 P.2d 625] ), and it would be incongruous for each repetition to be considered a separate wrong for property damage purposes but not for personal injuries․   Accordingly, if the statute of limitations becomes an issue, the trial court must determine whether nuisance causing personal injury loss has concluded or is continuing and then apply the appropriate statute of limitations principles.”  (Nestle v. City of Santa Monica, supra, 6 Cal.3d at pp. 937–938, 101 Cal.Rptr. 568, 496 P.2d 480;  fn. omitted.)

Furthermore, the Supreme Court in Nestle v. City of Santa Monica, supra, 6 Cal.3d 920, 101 Cal.Rptr. 568, 496 P.2d 480, also rejected the trial court's conclusion that “the airport was not a nuisance because it was maintained under the authority of several statutes.  Section 3482 of the Civil Code provides:  ‘Nothing which is done or maintained under the express authority of a statute can be deemed a nuisance.’ ”  (Id., at p. 938, fn. 16, 101 Cal.Rptr. 568, 496 P.2d 480.)   The court then wrote:  “In Hassell v. San Francisco (1938) 11 Cal.2d 168 [78 P.2d 1021], appellant contended that, by virtue of section 3482, the construction of a public convenience station above ground could not constitute a nuisance.   In rejecting that argument, we interpreted the section narrowly, stating (at p. 171 [78 P.2d 1021] ):  ‘ “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.” ’ ”   (Id., at p. 938, fn. 16, 101 Cal.Rptr. 568, 496 P.2d 480.)   Therefore, “although an activity authorized by statute cannot be a nuisance, the manner in which the activity is performed may constitute a nuisance.”  (Venuto v. Corning-Owens Fiberglas Corp., supra, 22 Cal.App.3d at p. 129, 99 Cal.Rptr. 350.)

 These rules persuade us that respondent's argument that the Airport must be characterized as a permanent nuisance because it cannot be abated is not sound.   While it is clear that the Airport may not be abated and may not be considered a nuisance absent specific allegations concerning “unnecessary and injurious” methods of operations (Code Civ.Proc., § 731a), it is also clear that the manner in which the authorized activity is conducted may constitute a nuisance.   It is this type of nuisance which serves as the basis of appellants' cause of action for nuisance.   Through incorporation by reference many of the allegations of the first cause of action for inverse condemnation, appellants have alleged in the cause of action for nuisance that the activities (flights) causing the nuisance “have continued to the date of [the] complaint.”   This allegation, in conjunction with the allegation that the personal injuries suffered as a “result of interference, noise, and vibrations ․ is for the period from 100 days prior to the filing of the claim to the date of the trial,” shows that:  (1) the noise and vibrations caused by the flight patterns authorized over appellants' homes may constitute a private nuisance, and (2) that appellants have elected to characterize the nuisance as continuous.

We conclude that appellants did state facts sufficient to state a cause of action for nuisance and that the cause of action for nuisance is not barred by the statute of limitations.9

DISPOSITION

The judgment of dismissal is reversed.   The matter is remanded to the trial court with instructions to enter a new order sustaining the demurrer to the first cause of action and overruling the demurrer to the second cause of action, allowing respondent time to answer.

FOOTNOTES

1.   Code of Civil Procedure section 1239.3 was repealed by Statutes 1975, chapter 1275, section 1, page 3409, operative July 1, 1976.   The comment by the Law Revision Commission states, “The substance of Section 1239.3 is continued in Public Utilities Code section 21652.”

2.   Copies of the claim submitted to respondent and defendant cities of Glendale, Burbank and Pasadena (hereinafter defendant cities) for personal injuries and property damage caused by flight patterns authorized by respondent over appellants' homes were attached as exhibits to the complaint.   The claim for appellants, excluding Mr. Rotella and Mr. and Mrs. Rocke, shows that it was received by defendant cities and respondent on February 23, 1982.   The joint claim of Rotella and the Rockes is marked as received on June 16, 1982.

3.   All references are to the Government Code, unless otherwise indicated.

4.   It is worthy of note that this is not a case where the power to take the air easements under eminent domain is under direct review.   Respondent has not initiated formal eminent domain proceedings with respect to the air easements at issue.   The issue whether respondent has the power of eminent domain has arisen only because respondent has asserted that it does not have such power as an absolute defense to the action in inverse condemnation.   It is in this context that we are called upon to consider the legal concepts of eminent domain and inverse condemnation as well as their interrelationship.

5.   22A West, Words and Phrases (1958), p. 231, provides that, “inverse or reverse condemnation contemplates a situation in which property has been taken by the exercise of the power of eminent domain, but without any payment of compensation therefor having been made.”

6.   Appellants have extensively argued that statutory authority for exercising the power of eminent domain is not required because of the “self-executing” nature of the California and United States Constitutions.   This is an incorrect interpretation of the concept that the proscription against taking private property for public use without just compensation is self-executing.   The self-executing nature of article I, section 19 of the California Constitution and the 5th Amendment of the United States Constitution refers only to the remedy, not to the theory of recovery.  (See United States v. Clarke, supra, 445 U.S. 253, 257, 100 S.Ct. 1127, 1130, 63 L.Ed.2d 373;  City of Oakland v. Oakland Raiders, supra, 32 Cal.3d 60, 64, 183 Cal.Rptr. 673, 646 P.2d 835.)

7.   In this state a party injured by maintenance of a nuisance need not seek abatement thereof, but may sue for damages.  (McIvor v. Mercer-Fraser Co. (1946) 76 Cal.App.2d 247, 254, 172 P.2d 758.)

8.   Code of Civil Procedure section 731a provides:  “Whenever any city, city and county, or county shall have established zones or districts under authority of law wherein certain manufacturing or commercial or airport uses are expressly permitted, except in an action to abate a public nuisance brought in the name of the people of the State of California, no person or persons, firm or corporation shall be enjoined or restrained by the injunctive process from the reasonable and necessary operation in any such industrial or commercial zone or airport of any use expressly permitted therein, nor shall such use be deemed a nuisance without evidence of the employment of unnecessary and injurious methods of operation.   Nothing in this act shall be deemed to apply to the regulation and working hours of canneries, fertilizing plants, refineries and other similar establishments whose operation produce offensive odors.”

9.   In this case the question of whether the noise levels, scheduling of flights and location of flight patterns can be altered while at the same time respondent can still operate the Airport is a fact question which has not been reached yet, inasmuch as we are dealing with pleading issues raised on demurrer.

AMERIAN, Associate Justice.

KINGSLEY, Acting P.J., and LUCAS, J.*, concur.

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