KENNETH L. BAKER et al., Plaintiffs and Appellants, v. BURBANK-GLENDALE-PASADENA AIRPORT AUTHORITY, Defendant and Respondent.
L.A. No. 31869
Supreme Court of California
Sept. 23, 1985.
862
John J. Schimmenti and Schimmenti, Mullins & Berberian for Plaintiffs and Appellants.
Kadison, Pfaelzer, Woodard, Quinn & Rossi, Richard K. Simon, Lee L. Blackman, Michael C. Kelley and James I. Ham for Defendant and Respondent.
Ira Reiner, City Attorney (Los Angeles), James H. Pearson, Senior Assistant City Attorney, James L. Spitser, Assistant City Attorney, Robert J. Logan, City Attorney (San Jose), Evet Abt, Deputy City Attorney, George Agnost, City Attorney (San Francisco), Donald J. Garibaldi, Harold J. McElhinny, Morrison & Foerster, John K. Van de Kamp, Attorney General, N. Gregory Taylor, Assistant Attorney General, and Richard M. Frank, Deputy Attorney General, as Amici Curiae on behalf of Defendant and Respondent.
OPINION
REYNOSO, J.—We are asked to resolve two questions: whether a public entity lacking the power of eminent domain may nonetheless be liable in inverse condemnation; and, whether a plaintiff may elect to treat commercial airport noise and vibrations as a continuing, rather than a permanent, nuisance. For the reasons set forth below, we answer both questions in the affirmative.
Plaintiffs are homeowners who live adjacent to defendant Burbank-Glendale-Pasadena Airport. The airport became a public entity in 1978 when it was purchased by the three cities pursuant to
1. Inverse Condemnation
Defendant contends that because “inverse condemnation” is 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” (United States v. Clarke (1980) 445 U.S. 253, 257 [63 L.Ed.2d 373, 377, 100 S.Ct. 1127]), it should follow that if an entity lacks the power to condemn by eminent domain, it cannot be liable in inverse condemnation. Indeed, there is some authority for this mechanical view. (3 Nichols on Eminent Domain (3d ed. 1981) § 8.1 [4], p. 8-39; Jacobson v. Tahoe Regional Planning Agcy. (9th Cir. 1977) 566 F.2d 1353, 1358, revd. on other grounds sub nom., Lake Country Estates v. Tahoe Planning Agcy. (1979) 440 U.S. 391 [59 L.Ed.2d 401, 99 S.Ct. 1171]; Western Internat‘l Hotels v. Tahoe Reg. Plan. Agcy. (D. Nev. 1975) 387 F.Supp. 429, 439; Gregory v. City of New York (S.D.N.Y. 1972) 346 F.Supp. 140, 143; Ex Parte Carter (Ala. 1980) 395 So.2d 65, 67; Collopy v. Wildlife Com‘n, etc. (Colo. 1981) 625 P.2d 994, 1005; cf. McCormick v. Penna. Public Utility Com‘n. (1980) 48 Cmwlth. Ct. 384 [409 A.2d 962, 964].) As defendant is prohibited from exercising eminent domain power,2 it therefore contends that it cannot be subject to suit for inverse condemnation.
These authorities are not controlling. They fail to recognize that the term, “inverse condemnation,” describes an action grounded not on statutory condemnation power, but on the constitutional proscription against the taking (
We have previously recognized the constitutional basis of an inverse condemnation action. In Rose v. State of California (1942) 19 Cal.2d 713 [123 P.2d 505], we held that mere failure of the Legislature to enact a statute authorizing an inverse condemnation suit did not entitle the state to disregard the constitutional imperative; we therefore allowed the action even though the state had not consented to be sued. (Id., at pp. 719-723.) Similarly, the court in Sutfin v. State of California (1968) 261 Cal.App.2d 50 [67 Cal.Rptr. 665], held that liability in inverse condemnation did “‘not depend upon a showing that there is statutory authority in the defendant entity to exercise affirmative eminent domain powers to accomplish the same result. All that is necessary to show is that the damage resulted from an exercise of governmental power while seeking to promote “the general interest in its relation to any legitimate object of government.“‘” (Id., at p. 55.) We later explicitly recognized what was implicit in Rose and Sutfin: “[t]he authority for prosecution of an inverse condemnation proceeding derives from article I, section 19, of the California Constitution. . . .” (Holtz v. San Francisco Bay Area Rapid Transit Dist. (1976) 17 Cal.3d 648, 652 [131 Cal.Rptr. 646, 552 P.2d 430].)3
We therefore conclude that plaintiffs’ inverse condemnation action may be maintained although defendant lacks eminent domain power. (Fountain v. Metro. Atlanta Rapid Transit Authority (11th Cir. 1982) 678 F.2d 1038, 1043-1045.)4 As the inverse condemnation claim was filed within the five-year statute of limitations (Frustruck v. City of Fairfax (1963) 212
2. Nuisance
Plaintiffs’ second cause of action alleges that defendant‘s activities became a nuisance as of January 29, 1978—the date defendant became a public entity. Because plaintiffs did not file their complaint until 1982, a question arises as to whether their nuisance claim was timely filed. The answer depends on whether the nuisance is characterized as continuing or permanent.
The trial court ruled that because this particular nuisance is not subject to judicial abatement6 it is a permanent nuisance upon which the statute of limitations (
It does not follow, however, that simply because commercial flights operated in compliance with federal law may not be enjoined, the nuisance at issue is a permanent one. Whether a nuisance will be classified as continuing or permanent depends not on the offending party‘s interest in continuing the nuisance, but on the type of harm suffered. (See Nestle v. City of Santa Monica (1972) 6 Cal.3d 920, 937 [101 Cal.Rptr. 568, 496 P.2d 480].)
Two distinct classifications have emerged in nuisance law which determine the remedies available to injured parties and the applicable statute of limitations. On the one hand, permanent nuisances are of a type where “‘by one act a permanent injury is done, [and] damages are assessed once for all.‘” (Williams v. Southern Pacific R.R. Co. (1907) 150 Cal. 624, 626
On the other hand, if a nuisance is a use which may be discontinued at any time, it is considered continuing in character and persons harmed by it may bring successive actions for damages until the nuisance is abated. (Phillips v. City of Pasadena (1945) 27 Cal.2d 104, 107-108 [162 P.2d 625].) Recovery is limited, however, to actual injury suffered prior to commencement of each action. Prospective damages are unavailable.
The classic example of a continuing nuisance is an ongoing or repeated disturbance, such as the one before us today, caused by noise, vibration or foul odor. (E.g., Vowinckel v. N. Clark & Sons (1932) 216 Cal. 156, 158 [13 P.2d 733] [vibration, noise and noxious soot, smoke and gases emanating from pottery factory].)9 Indeed, even more substantial physical invasions of land have been held to be continuing in character. (E.g., Tracy v. Ferrera (1956) 144 Cal.App.2d 827, 828 [301 P.2d 905] [deflection of rain water and emission of noxious odors and fumes from neighbor‘s pipes and furnace].)10 As emphasized in Tracy, the distinction to be drawn is between
In case of doubt as to the permanency of the injury the plaintiff may elect whether to treat a particular nuisance as permanent or continuing. (Spaulding v. Cameron (1952) 38 Cal.2d 265, 268 [239 P.2d 625].) The importance of the plaintiff‘s election has long been recognized. (United States v. Dickinson (1946) 331 U.S. 745, 749 [91 L.Ed. 1789, 1794, 67 S.Ct. 1382]; Kornoff v. Kingsburg Cotton Oil Co. (1955) 45 Cal.2d 265, 269-271 [288 P.2d 507]; Kafka, supra, 191 Cal. at p. 752; Williams, supra, 150 Cal. at p. 628; Martinez-Ferrer v. Richardson-Merrell, Inc. (1980) 105 Cal.App.3d 316, 326 [164 Cal.Rptr. 591]; Tracy, supra, 144 Cal.App.2d at p. 829; 3 Witkin, Cal. Procedure (3d ed 1985) Actions, § 425, pp. 458-459; Rest. 2d Torts, § 930.) As the United States Supreme Court noted in Dickinson, a case in which a landowner sued to recover damages after the government flooded his land, “[i]f suit must be brought, lest he jeopardize his rights, as soon as his land is invaded, other contingencies would be running against him—for instance, the uncertainty of the damage and the risk of res judicata against recovering later for damage as yet uncertain. The source of the entire claim . . . is not a single event; it is continuous.” (Dickinson, supra, 331 U.S. at p. 749 [91 L.Ed. at p. 1794].)
Another contingency running against the plaintiff is the statute of limitations. In Spaulding we expressed concern that “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.]” (Spaulding, supra, 38 Cal.2d at p. 268.) We then emphasized that “[b]ecause 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.]” (Ibid.)
Defendant contends, however, that this is not a case to which election applies because Spaulding separately categorized privileged activity
Although Spaulding contains language suggesting that election is unavailable when the nuisance arises as a result of privileged activity,12 this isolated aspect of the opinion must be viewed in context. First, the purported exclusion is dictum only. Spaulding did not involve a question of privilege. In Spaulding, the defendant, a private landowner, negligently maintained piles of dirt on his property which caused mudslides on the plaintiff‘s land when it rained. The trial court ordered the nuisance abated but also awarded prospective damages for permanent diminution in the value of plaintiff‘s property. Thus, the issue was the necessity of election, not whether privilege precluded such election.
Second, Spaulding‘s election discussion is based, in part, on Phillips, supra, 27 Cal.2d 104, a case involving “privileged” governmental activity. In Phillips we held that even assuming the city could not be required to remove a road block obstructing access to Phillips’ property, it could not be said as a matter of law that the gate was a permanent nuisance since it apparently “could have been removed at any time.” (Id., at p. 108.) It is difficult to reconcile this case, affirmatively relied upon in Spaulding, with an interpretation of the latter as absolutely barring election when privileged activity is at issue. The two opinions are more realistically viewed as focusing the election inquiry on the ability to abate rather than on the possibility of a court order requiring abatement.
Third, public policy militates against defining a nuisance as permanent or continuing on the basis of privilege alone. As noted, the purpose of nuisance law is to provide a means of recovery for harm suffered. The doctrine of election is designed to facilitate just and equitable recovery. Though the traditional remedy of injunctive relief may be unavailable in a given case, the damage suffered is no different than in a case involving identical but nonprivileged activity. Both victims are harmed in the same way, and both may seek damages for such harm. Where the nuisance is a continuing one, both victims, therefore, should be able to bring successive actions as dam-
Moreover, we should be particularly cautious not to enlarge the category of permanent nuisances beyond those structures or conditions that truly are permanent. Where some means of abatement exists, there is little or no incentive to make remedial efforts once the nuisance is classified as permanent. Such a result is at odds with tort law‘s philosophy of encouraging innovation and repair to decrease future harm.
Finally, the privilege alluded to in Spaulding is quite different from the privilege claimed in the present case. In a word, the Spaulding privilege is absolute. Spaulding referred to an “offending structure or condition [] maintained as a necessary part of the operations of a public utility” as a clear permanent nuisance, “[s]ince the utility by making compensation is entitled to continue them.” (Id., 38 Cal.2d at p. 267.) (Italics added.)
We do not deal with such an extensive privilege. Federal preemption of local regulation of airport noise is not absolute. In Greater Westchester, supra, 26 Cal.3d 86, we concluded that federal preemption does not operate to wholly eliminate local responsibility for airport noise control. We based this conclusion, in part, on the distinction drawn by the United States Supreme Court in City of Burbank v. Lockheed Air Terminal (1973) 411 U.S. 624 [36 L.Ed.2d 547, 93 S.Ct. 1854], between a municipality‘s exercise of the police power and its proprietary efforts to reduce airport noise. Federal law preempts only the former. (Id., at pp. 635-636, fn. 14 [36 L.Ed.2d at pp. 554-555]; Greater Westchester, supra, 26 Cal.3d at p. 96. See also San Diego Unified Port Dist. v. Gianturco (9th Cir. 1981) 651 F.2d 1306, 1314, cert. den., 455 U.S. 1000 [71 L.Ed.2d 866, 102 S.Ct. 1631].) The message of City of Burbank and Greater Westchester is clear: state law damage remedies remain available against an airport proprietor despite the fact that federal law precludes interference with commercial flight patterns and schedules.
Moreover, recovery is not limited to damages for permanent nuisance only. In Greater Westchester we affirmed damage awards totalling $86,000 for personal injuries sustained during the period 1967-1975 by persons living near Los Angeles International Airport. (Id., 26 Cal.3d at p. 92.) Although we did not otherwise identify the nuisance as permanent or continuing, the time frame given strongly suggests the latter.
Airport operations are the quintessential continuing nuisance. Although federal law precluding interference in any way with flight patterns and schedules adds an element of permanency to an otherwise continuing problem, it does not mandate that the overall nuisance is a permanent one. Thus plaintiffs may elect whether to treat airport noise and vibrations as a continuing or as a permanent nuisance.
Because plaintiffs elected to treat the airport as a continuing nuisance, we conclude that the statute of limitations does not bar their nuisance claims.
For the foregoing reasons, the judgment is reversed as to both causes of action.
Bird, C. J., Kaus, J., Broussard, J., and Grodin, J., concurred.
MOSK, J., Concurring and Dissenting.—I agree with the majority that plaintiffs may maintain a cause of action for inverse condemnation even though defendant lacks the power of eminent domain.
I am compelled to dissent, however, from their discussion and disposition of the nuisance cause of action. They effectively ignore principles that have guided the courts of this state and other jurisdictions in the task of classifying nuisances, and thus err in concluding that plaintiffs’ claim is timely.
Plaintiffs allege that defendant‘s activities became a nuisance as of January 29, 1978—the date defendant became a public entity. If a nuisance is deemed “permanent,” a plaintiff must—within the applicable statute of limitations—sue for all past, present, and future damages in one action. If, by contrast, a nuisance is deemed “continuing,” a plaintiff may sue only for damages suffered before the action was filed, but he will not be barred from pressing future claims so long as the nuisance continues.
In Spaulding v. Cameron (1952) 38 Cal.2d 265 [239 P.2d 625], Justice Traynor prescribed the test for determining whether a nuisance is continuing or permanent, and discussed the policy of the law: “In early decisions of this court it was held that it should not be presumed that a nuisance would continue, and damages were not allowed for a decrease in market value caused by the existence of the nuisance but were limited to the actual physical injury suffered before the commencement of the action. [Citations.] 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.
“The clearest case of a permanent nuisance or trespass is the 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.” (Id., at p. 267, italics added.)
Thus, if a use of property alleged to be a nuisance is likely to continue indefinitely because its owner cannot be compelled to abate, the nuisance is deemed permanent and the plaintiff is given a single cause of action for his damages past, present, and future. This test for classifying nuisances as either continuing or permanent turns on whether the nuisance is reasonably abatable. It is the rule followed not only in this state (see, e.g., Kornoff v. Kingsburg Cotton Oil Co. (1955) 45 Cal.2d 265, 269-271 [288 P.2d 507];
Under these principles, the nuisance alleged here must be deemed permanent. First, injunctive relief is not simply inappropriate, it is unavailable. As this court observed in Greater Westchester Homeowners Assn. v. City of Los Angeles (1979) 26 Cal.3d 86 [160 Cal.Rptr. 733, 603 P.2d 1329], certiorari denied, 449 U.S. 820 [66 L.Ed.2d 22, 101 S.Ct. 77], “commercial flights which are conducted in strict compliance with federal regulations may not be enjoined as nuisances, both because of the continuing public interest in air transportation, and because of the likelihood of direct conflict with federal law.” (Id., at p. 94; see also Loma Portal Civic Club v. American Airlines, Inc. (1964) 61 Cal.2d 582, 591 [39 Cal.Rptr. 708, 394 P.2d 548].) Second, successive actions are plainly undesirable. As the Supreme Court of Wisconsin recently held in Krueger v. Mitchell, an airport noise case, “The injured party must . . . present his . . . entire claim for past and future damages in one action. This limitation on such a damage action is necessary in order to protect airport proprietors from repeated and vexatious litigation based on the same nuisance.” (112 Wis.2d at p. 103.)
In some cases classification may be doubtful; in such cases, the Spaulding court observed, a plaintiff should be allowed to elect whether to treat the alleged nuisance as continuing or permanent. (38 Cal.2d at p. 268.) Recognizing that their claim here would be barred by limitations if the asserted nuisance is characterized as permanent, plaintiffs insist this case is within the class defined in Spaulding as “doubtful,” and hence that they may avoid the limitations bar by treating the alleged nuisance as continuing.
Spaulding allows such an election only if, inter alia, “the defendant is not privileged to continue the nuisance. . . .” (Ibid.) As Greater West-
Nor is defendant‘s privilege to continue the alleged nuisance diminished by its ability to adopt means within its power to mitigate the allegedly offensive noise. Although the federal government has apparently not preempted all facets of noise control (Greater Westchester, supra, 26 Cal.3d at pp. 93-100, and authorities cited; Bennett, Airport Noise Litigation: Case Law Review (1982) 47 J. Air L. & Com. 449, 464-469; Werlich & Krinsky, The Aviation Noise Abatement Controversy: Magnificent Laws, Noisy Machines, and the Legal Liability Shuffle (1981) 15 Loyola L.A. L.Rev. 69, 83-91; Comment, The 1980 Airport Noise Act: Noise Abatement or Just More Noise? (1981) 14 U.C. Davis L.Rev. 1049, passim), it is clear that permissible local regulation may be imposed only by airport proprietors, and not by third parties. (See Bennett, supra, 47 J. Air L. & Com. at pp. 469-473, and cases cited.) Thus in City of Burbank v. Lockheed Air Terminal (1973) 411 U.S. 624 [36 L.Ed.2d 547, 93 S.Ct. 1854], the United States Supreme Court invalidated a municipal ordinance that purported to regulate noise by imposing a take-off curfew on a privately owned airport. City of Burbank plainly establishes that the delicate federal/local-proprietor noise control scheme currently in effect will not tolerate private suits seeking mandatory imposition of local noise controls. (Cf. San Diego Unified Port Dist. v. Gianturco (9th Cir. 1981) 651 F.2d 1306, 1316-1319, cert. den. (1982) 455 U.S. 1000 [71 L.Ed.2d 866, 102 S.Ct. 1631] [state may not direct an airport proprietor to exercise its noise abatement power].)
Thus, plaintiffs may not elect to treat the alleged nuisance as continuing: defendant is privileged to continue the nuisance and it must therefore be classified as permanent. (See Krueger v. Mitchell, supra, 112 Wis.2d at pp. 102-103 [injunctive relief against airport noise unavailable; plaintiff may claim damages for permanent nuisance only].)2
I would accordingly affirm the order dismissing the nuisance cause of action.
Lucas, J., concurred.