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Court of Appeal, Third District, California.

E. H. WILSON, et al., Plaintiffs and Appellants, v. INTERLAKE STEEL COMPANY, et al., Defendants and Respondents.

Civ. 19845.

Decided: September 30, 1981

Ross L. Sargent, for plaintiffs and appellants. Albert E. Cronin, Jr., Stockton, for defendants and respondents.

The sole question presented is whether noise alone, absent actual damage, can sustain an action for trespass.

The trial court in this proceeding carefully reviewed all available authority on the question presented and correctly concluded the trespass action would not lie and rendered judgment for the defendants. We affirm.

The rule has evolved in California that trespass may be committed by consequential and indirect injury as well as by direct and forcible injury. However, a distinction is perceived between noise-caused vibrations resulting in damage or injury and noise waves that are merely bothersome and not damaging; the latter does not constitute a trespass, but must be dealt with as a nuisance. (See Gallin v. Poulou (1956) 140 Cal.App.2d 638, 641-645, 295 P.2d 958; McNeill v. Redington (1944) 67 Cal.App.2d 315, 319, 154 P.2d 428; Drennen v. County of Ventura (1974) 38 Cal.App.3d 84, 112 Cal.Rptr. 907.)

Noise alone, without damage to the property, will not support a tort action for trespass. Recovery allowed in prior trespass actions predicated upon noise, gas emissions, or vibration intrusions has, in each instance, been predicated upon the deposit of particulate matter upon the plaintiffs' property or on actual physical damage thereto. (See 48 Cal.Jur.2d, Trespass, s 10, p. 12, and cased cited therein.)

All intangible intrusions, such as noise, odor, or light alone, are dealt with as nuisance cases, not trespass. (Greater Westchester Homeowners Assn. v. City of Los Angeles (1979) 26 Cal.3d 86, 160 Cal.Rptr. 733, 603 P.2d 1329; Smith v. Lockheed Propulsion Co. (1967) 247 Cal.App.2d 774, 56 Cal.Rptr. 128.)

Succinctly stated, the rule is that actionable trespass may not be predicated upon nondamaging noise, odor, or light intrusion; moreover, liability for trespass will not be imposed unless the trespass was intentional, the result of recklessness, negligence, or the result of an extra hazardous activity. (See Smith v. Lockheed Propulsion Co., supra, 247 Cal.App.2d at p. 784, 56 Cal.Rptr. 128.)

The stipulated facts upon which the trial proceeded do not meet any of the requisites for a trespass action. Those facts are: In 1937, the City of Lodi placed the land, upon which defendants' steel fabricating plant is situated, in an industrial zone and the area upon which plaintiffs' homes are located in a residential zone. A buffer zone between them was not provided. Defendants' plant does emit “clanging and thudding” noises in its steel fabricating process, and are the only emissions from the factory reaching the plaintiffs' homes; the noise has not damaged plaintiffs' property nor were vibrations from the plant perceptible. In 1974, the appealing plaintiffs unsuccessfully sought to enjoin defendants' operation as a nuisance.

The case authorities relied upon by plaintiffs in support of their contention that noise waves which do not damage a plaintiff's property may serve as a predicate for a tort action in trespass rather than a nuisance action are factually inapposite.

The judgment is affirmed.

I concur in the judgment. Rationally, as appellants argue, there is little distinction between noise waves which render property less valuable and noise vibrations which have the same result. Nonetheless, trespass has not traditionally encompassed noise waves, and we decline to extend coverage.

I concur in the opinion and in the remarks of Justice Reynoso.

EVANS, Acting Presiding Justice.