Anderson v. Souza

• Decision Date: 24 April 1952
• Citation: 38 Cal.2d 825,243 P.2d 497
• Court: California Supreme Court
• Parties: ANDERSON et al. v. SOUZA et al. Sac. 6136.

Page 497

243 P.2d 497

38 Cal.2d 825

ANDERSON et al. v. SOUZA et al.

Sac. 6136.

Supreme Court of California, in Bank.

April 24, 1952.

Donald B. Fowler and H. E. Gleason, Turlock, for appellants.

Brown, Brown & Bacon, Ralph M. Brown, William E. Bacon and T. M. Norton, all of Modesto, for respondents.

PER CURIAM.

This appeal is from a judgment enjoining the operation of an airport and awarding damages. After decision by the District Court of Appeal, Third Appellate District, a hearing was granted by this court to give further consideration to the important issues involved. We have concluded that the opinion of the District Court of Appeal, prepared by Mr. Justice Van Dyke, correctly discussed and decided the issues presented. That opinion, with additions and deletions, is adopted as the opinion of this court. As modified, the opinion is as follows:

'Plaintiffs below, more than 50 in number, brought this action against defendants to recover damages by reason of the alleged creation and maintenance of a nuisance through the operation of an airport, and for injunctive relief forbidding the defendants to operate the airport as such. The court, adopting in the main the allegations of the complaint, made the following findings of fact: That since April 19, 1946, plaintiffs were the owners of and resided on real property located close to the airport; that during that period of time the defendants operated the airport, defendants Souza and wife being the owners of the real property on which the airport is located; that in the course of the operation of the airport numerous aircraft of various types taxi, take off, circle, buzz, cruise about, maneuver, glide, climb, bank, turn, stunt and engage in acrobatics, and land on, from, and to said airport; that this aerial activity is continuous and frequent throughout the daylight hours and that the aircraft are operating with the consent, encouragement and solicitation of the defendants; that many of the airplanes so operated belong to defendants and are operated by them; that the airplanes fly over the homes of the plaintiffs at heights varying from 25 to 800 feet and in passing over or near said homes create such a tremendous noise that the same interferse with the lawful use, enjoyment and occupancy of the dwellings to the great disturbance and nervous upset of the plaintiffs; that because of said noises plaintiffs and members of their families are unable to sleep when planes from the airport are operating, to their great physical detriment and mental anguish; that normal conversation is interrupted; that plaintiffs have great difficulties listening to radio programs and in general the enjoyment of their homes is materially decreased; that plaintiffs, knowing that numerous airplane accidents have occurred throughout the country and that several have occurred at the airport, suffer great fear and apprehension when the airplanes pass over their homes at low altitudes; that defendant Earlandson operates a flying school at the airport, and the student pilots using airplanes belonging to Earlandson fly at low altitudes over plaintiffs' homes, but that only six plaintiffs were affected by the conduct of the student pilots and that, as to the six, such conduct placed their lives and property in great jeopardy and caused them to fear greatly for their property, their lives and the lives of their loved ones; that the real property of the same six plaintiffs by reason of said conditions has depreciated in value, but that this was not true as to the other plaintiffs; that plaintiffs have often requested and demanded of defendants that they cease operating the airport and the airplanes in the manner found, but that defendants have continued to operate them in said manner continuously from April, 1946, to the time of trial; that more airplanes are operating from the field each month and that still more airplanes will operate from the field in the future; that defendants by their acts have caused irreparable injury to plaintiffs and that irreparable injury will be done to them in the future if the defendants continue with their acts as found; that none of the plaintiffs have been damaged except the same six and that they have been damaged as follows, V. E. Anderson and wife jointly in the sum of $500, Arvid G. Anderson and wife jointly in the same sum, and Jack Harlan and wife jointly in the same sum; that plaintiffs have no plain, speedy or adequate remedy at law. As conclusions of law from the facts found judgment was ordered: 1. Enjoining and restraining the defendants from operating the airport on the premises described in the complaint; 2. For damages in the sum of $500 to each of the three couples named above. Judgment was entered accordingly. Motion for new trial was made and denied. From the judgment the defendants have taken this appeal.

'We shall discuss the contentions of appellants seriatim as they advance them in their briefs. Appellants first attack the finding of the court that appellants Souza and wife, along with appellant Earlandson, operate the airport. Herein it is claimed on behalf of Souza that it is Earlandson who operates the airport and that Souza, while he owns the property where the airport is located, has leased the airport to Earlandson, and that, therefore, under such cases as Gould v. Stafford, 91 Cal. 146, 27 P. 543, Wiersma v. City of Long Beach, 41 Cal.Capp.2d 8, 106 P.2d 45, Mundt v. Nowlin, 44 Cal.App.2d 414, 112 P.2d 782, and Meloy v. City of Santa Monica, 124 Cal.App. 622, 12 P.2d 1072, the nuisance complained of is created and maintained by Earlandson alone. These cases lay down the well-known rule that a landlord is not responsible to other parties for the misconduct or injurious acts of his tenant to whom his estate has been leased for a lawful and proper purpose when there is no nuisance or illegal structure upon it at the time of the leasing. We think, however, that in view of the evidence here this rule and the cases declaring it are not controlling, for it was shown that Souza owned the land, constructed the field, obtained the county permit, flew his own plane from and to the field and retained portions of the field's facilities, that is, the hangars and tie-down space for which he collected rent. Earlandson's rights were to operate his flying school, sell gas and repair planes. Earlandson, therefore, was not in sole charge of the field and it is a fair inference from the evidence that Souza at least joined with Earlandson in permitting public use of the field, and, in short, so participated in the operation of the field that the court's findings that he and Earlandson operated the field are substantially supported by the evidence.

'There is next attacked the finding that 'many airplanes' operating from the airport were owned and operated by appellants Souza and Earlandson as being contrary to the evidence. We think this finding is sufficiently supported by Souza's testimony that he owned and operated a plane and by Earlandson's testimony that he owned and operated four airplanes, plus one which he operated for another owner. Whether such numbers constitute many or few is a comparative matter, but Earlandson's planes were shown to have been greatly used in the conduct of his air school and in view of the fact of dual control and operation of the port by the two men we find nothing erroneous in the challenged finding * * *.

'Appellants contend that the court ered in decreeing any judgment either for damages or by way of injunctive relief against defendant Souza. This is but another aspect of the contention previously discussed, which was based upon the theory that Souza, having leased the airport, did not operate the same, and we think separate treatment is unnecessary. What we have said heretofore disposes of this contention.

'Appellants contend that the court erred in allowing one of the respondents to testify from and read verbatim into the record a memorandum he had prepared without requiring, as they contend, a proper foundation therefor to be laid. It appears that the length of time covered by the testimony taken was quite considerable, in fact, several years in extent. The witness had from time to time over a considerable period of time and on observing airplanes flying low over his home or near to it and over his property made notations in whatever way was open to him at the time, consisting of a description of the plane, its numbers and such like matters. He made these notations on scratch paper he may have had with him at the time. Sometimes he entered them upon fence posts and even at times inscribed them on the surface of the ground. He then collected these memoranda and, as he testified, copied the same into more permanent form and either from these latter writings or from other writings copied from them in turn, he was permitted to testify over objections. Section 2047 of the Code of Civil Procedure covers the matter. It provides that a witness is allowed to refresh his memory by anything written by himself or under his direction at the time when the fact occurred or immediately thereafter or while still fresh in his memory, if he knows the same to be correctly stated in the writing. He may also testify from a writing, though he retain no recollection as to the facts, but such evidence must be received with caution * * *.

'An examination of the record discloses that the witness here did make the notations himself and he testified that he made copies of these notations. He was not asked directly either on direct or cross-examination whether he copied them correctly, but when a witness testifies under oath that he made a copy it is going far afield to say that such testimony is not equivalent to saying that he copied the memoranda correctly since it would not be a copy unless it was correct. While it is better, of course, to properly and fully qualify the witness who is to testify from or with the aid of...