Ackerman v. Port of Seattle

Decision Date14 January 1960
Docket NumberNo. 33892,33892
Citation55 Wn.2d 400,348 P.2d 664
CourtWashington Supreme Court
Parties, 77 A.L.R.2d 1344 George ACKERMAN, Arnold H. Johnson, Charles J. King, James F. McCarthy, and Meikle John & Brown Co., a Washington corporation, Appellants, v. PORT OF SEATTLE, Respondent. . En Banc

John J. O'Connell, Atty.Gen., James R. Cunningham, Asst.Atty.Gen., Amici Curiae.

Breskin & Hilyer, Seattle, for appellants.

Bogle, Bogle & Gates, Tom M. Alderson, J. Kenneth Brody, Seattle, for respondent.

FINLEY, Judge.

In 1949, the respondent, The Port of Seattle (hereinafter referred to as the Port), commenced operation of the Seattle-Tacoma International Airport. On June 15, 1955, thirty property owners living near the airport instituted suit against the Port and all of the scheduled airlines using the airport to recover the diminution in market value of their land, allegedly caused by the activities of the Port and the airlines. Between June 15, 1955 and January 1956, thirty-seven additional property owners, including the five appellants, were joined as parties plaintiff by court order, making a total of sixty-seven plaintiffs.

The trial court granted summary judgment against six of the plaintiffs. For the facts and circumstances surrounding that judgment, see Anderson v. Port of Seattle, 1956, 49 Wash.2d 528, 304 P.2d 705.

The Port and the airlines all demurred to the complaints of the remaining sixty-one plaintiffs. The trial court overruled the demurrer as to fifty-six plaintiffs, but sustained it as to the five appellants. Subsequently, pursuant to a stipulation between the airlines and the appellants, the order sustaining the demurrer of the airlines was vacated. Thus, the sole question raised on this appeal is whether the trial court erred in sustaining the demurrer of the Port as to the five appellants.

Although there are several appellants, there is but one basic complaint. Essentially, it alleges that, because of the failure of the Port to provide adequate facilities, the property of the appellants has been and is continuing to be used as an approach way for airplanes landing or taking off from the airport. It is alleged that as many as one hundred airplanes per day pass directly over the appellants' land at altitudes as low as one hundred feet, and that, as a result of the noise and fear thus produced, the value of the land has been substantially diminished. It is further alleged that the Port, having the power of eminent domain, has nevertheless failed to acquire the property used for approach ways, either by purchase or by appropriate condemnation proceedings. It is also alleged that airplanes, warming up on the airport runways, are unreasonably interfering with the use and enjoyment of appellants' land. We think that the significant claim of appellants in this case concerns the alleged numerous low flights directly over their land. Appellants rely upon (1) a theory of constitutional taking; i.e., a taking of private property for public use without first paying just compensation, contrary to Art I, § 16, and amendment 9, Washington state constitution; 1 (2) a theory of common law trespass; or (3) nuisance. If the complaint is sustainable on the theory of constitutional taking, the trial court's order sustaining the Port's demurrer must be reversed, and any discussion of the common law concepts of trespass or nuisance is unnecessary.

Counsel for the Port have suggested that the trial court's basis for the order sustaining the demurrer was that the appellants' suit was barred by the three-year statute of limitations. They point out that the complaints allege that the acts which occasion this litigation have been continuous from and after June 15, 1952, but that the five appellants did not become parties until after June 15, 1955. However, if this was the reason for the trial judge's action, it would seem that he would have sustained the demurrer as to the other thirty-two plaintiffs who joined the original thirty plaintiffs after June 15, 1955. On the contrary, it appears that the reason behind the order sustaining the demurrer as to the five appellants was that they, unlike the fifty-six plaintiffs as to whom the Port's demurrer was overruled, are owners of vacant and unoccupied land. As to vacant land, the trial judge apparently concluded that the law does not recognize as compensable the type of harm which the appellants allege has occurred in this case.

Assuming that in all other respects the complaints state a cause of action for constitutional taking, we cannot agree with this apparent conclusion of the trial court. The actual monetary damage to developed land may well be greater than to vacant land. "But it is the character of the invasion, not the amount of damage resulting from it, so long as the damage is substantial, that determines the question whether it is a taking." United States v. Cress, 1916, 243 U.S. 316, 328, 37 S.Ct. 380, 385, 61 L.Ed. 746; United States v. Causby, 1946, 328 U.S. 256, 66 S.Ct. 1062, 90 L.Ed. 1206. "The path of glide for airplanes might reduce a valuable factory site to grazing land, an orchard to a vegetable patch, a residential section to a wheat field. Some value would remain. But the use of the airspace immediately above the land would limit the utility of the land and cause a diminution in its value." United States v. Causby, supra, 328 U.S. at page 262, 66 S.Ct. at page 1066.

Furthermore, if the Port is liable for a constitutional taking, the trial court would be in error for sustaining the demurrer, even if the basis for the court's action was the three-year statute of limitations. We have held that an action for constitutional taking is not barred by any statute of limitations and may be brought at any time before title to the property taken is acquired by prescription. The prescriptive period in this state has been held to be ten years. See Aylmore v. City of Seattle, 1918, 100 Wash. 515, 171 P. 659, L.R.A.1918E, 127; Domrese v. City of Roslyn, 1918, 101 Wash. 372, 172 P. 243; Litka v. City of Anacortes, 1932, 167 Wash. 259, 9 P.2d 88. This holding is consistent with the prevailing rule in many other states having constitutional provisions similar to ours. See for example Carter v. Ridge Turnpike Co., 1904, 208 Pa. 565, 57 A. 988. In that case the supreme court of Pennsylvania pointed out that the right to compensation for a governmental taking under the power of eminent domain is not merely a common law or statutory right, but is a constitutional right. It held that "*** no statute of limitations can bar [plaintiff's] constitutional right to actual compensation ***" (Emphasis supplied.) In Faulk v. Missouri River & N.W.R. Co., 1911, 28 S.D 1, 132 N.W. 233, 237, the South Dakota court cited the Pennsylvania decision with approval, stating:

"*** if it was competent for the Legislature to make any provisions limiting the time for commencing an action by the owner, it could make such provisions as would effectually abrogate or fritter away the guaranty of the Constitution."

Admittedly, we have indicated that where property is not actually appropriated, but is merely damaged, the three-year statute of limitations (RCW 4.16.080(3)) might well be applicable. Papac v. City of Montesano, 1956, 49 Wash.2d 484, 303 P.2d 654; Gillam v. City of Centralia; 1942, 14 Wash.2d 523, 128 P.2d 661; Marshall v. Whatcom County, 1927, 143 Wash. 506, 255 P. 654; Jacobs v. City of Seattle, 1918, 100 Wash. 524, 171 P. 662, L.R.A.1918E, 131. This court has never recognized the doctrine of acquisition of a prescriptive right to commit damage to property in the absence of an actual physical invasion of the property. Therefore, to prevent stale claims, a reasonable statute of limitations may be applied as to even a constitutional right, as was suggested in Kincaid v. City of Seattle, 1913, 74 Wash. 617, 134 P. 504, 135 P. 820. The three-year statute of limitations suggested in the above-cited cases seems to us reasonable. Thus, we hold that, with respect to the appellants' allegations of incidental damaging caused by airplanes warming up on the airport runways, the three-year statute of limitations constitutes a bar, accord Cheskov v. Port of Seattle, Wash. 1960, 348 P.2d 673.

We turn now to the major question: whether, under the facts alleged, the appellants have stated a cause of action against the Port for a constitutional taking.

For convenience we shall divide our discussion of this question into two segments: (1) whether the alleged continuing and frequent low flights over the appellants' land constitutes a taking of their property; and (2) whether the Port--which operates no airplanes--is liable for such a taking.

The fundamental problem presented by this appeal is relatively new. It is of considerable interest and significance at the present time, and, in view of the modern developments in the field of air transportation, it is likely to become much more important in the future.

In the University of Illinois Law Forum (Vol. 1956, No. 2, p. 232), Judge Roger J. Traynor of the supreme court of California stated:

"More than ever social problems find their solution in legislation. Endless problems remain, however, which the courts must resolve without benefit of legislation. The great mass of cases are decided within the confines of stare decisis. Yet there is a steady evolution, for it is not quite true that there is nothing new under the sun; rarely is a case identical with the ones that went before. Courts have a creative job to do when they find that a rule has lost its touch with reality and should be abandoned or reformulated to meet new conditions and new moral values. And in those cases where there is no stare decisis to cast its light or shadow, the courts must hammer out new rules that will respect whatever values of the past have survived the tests of reason and experience and anticipate what contemporary values will...

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