Baker v. Burbank-Glendale-Pasadena Airport Authority

• Decision Date: 23 September 1985
• Docket Number: BURBANK-GLENDALE-PASADENA
• Citation: 705 P.2d 866,39 Cal.3d 862,218 Cal.Rptr. 293
• Court: California Supreme Court
• Parties: , 705 P.2d 866, 23 ERC 1415, 54 USLW 2191, 16 Envtl. L. Rep. 20,373 Kenneth L. BAKER et al., Plaintiffs and Appellants, v.AIRPORT AUTHORITY, Defendant and Respondent. L.A. 31869.

Page 293

218 Cal.Rptr. 293

39 Cal.3d 862, 705 P.2d 866, 23 ERC 1415, 54 USLW 2191,

16 Envtl. L. Rep. 20,373

Kenneth L. BAKER et al., Plaintiffs and Appellants, v. BURBANK-GLENDALE-PASADENA AIRPORT AUTHORITY, Defendant and Respondent.

L.A. 31869.

Supreme Court of California.

Sept. 23, 1985.

John J. Schimmenti and Schimmenti, Mullins & Berberian, El Segundo, for plaintiffs and appellants.

Gideon Kanner, Los Angeles, Fadem, Berger & Norton, Michael M. Berger, Santa Monica, O'Donnell & Gordon, Pierce O'Donnell, Steven F. Pflaum, Mark D. Fabiani, Los Angeles, Robert H. Burnham, City Atty., Newport Beach, E. Clement Shute, Jr., Alletta d'A. Belin, Shute, Mihaly & Weinberger, San Francisco, Ronald A. Zumbrun, Robert K. Best, Sacramento, Mark A. Wasser, Madera, and Timothy A. Bittle, Sacramento, as amici curiae on behalf of plaintiffs and appellants.

Kadison, Pfaelzer, Woodard, Quinn & Rossi, Richard K. Simon, Lee L. Blackman, Michael C. Kelley and James I. Ham, Los Angeles, for defendant and respondent.

Ira Reiner, City Atty., Los Angeles, James H. Pearson, Senior Asst. City Atty., James L. Spitser, Asst. City Atty., Robert J. Logan, City Atty., San Jose, Evet Abt, Deputy City Atty., George Agnost, City Atty. San Francisco, Donald J. Garibaldi, Harold J. McElhinny, Morrison & Foerster, San Francisco, John K. Van de Kamp, Atty. Gen., N. Gregory Taylor, Asst. Atty. Gen., and Richard M. Frank, Deputy Atty. Gen., as amici curiae on behalf of defendant and respondent.

REYNOSO, Associate Justice.

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 Government Code section 6500 et seq. ¹ In 1982, plaintiffs filed suit for inverse condemnation and nuisance caused by noise, smoke, and vibrations from flights over their homes. The trial court sustained demurrers to both causes of action, dismissing the inverse condemnation action because defendant is prohibited by statute from exercising the power of eminent domain, and dismissing the nuisance action as barred by the statute of limitations covering permanent nuisances. Plaintiffs appeal.

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, 100 S.Ct. 1127, 1130, 63 L.Ed.2d 373, 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, 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, Inc. v. Tahoe Planning Agcy. (1979) 440 U.S. 391, 99 S.Ct. 1171, 59 L.Ed.2d 401; 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 Pa.Cmwlth. 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 (U.S.Const., 5th Amend.) or the taking or damaging (Cal.Const., art. I, § 19) of property for public use without just compensation. A landowner whose property has been invaded by a public entity that lacks eminent domain power suffers no less a taking merely because the defendant was not authorized to take.

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, 123 P.2d 505.) 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, 67 Cal.Rptr. 665.) 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 (Frustuck v. City of Fairfax (1963) 212 Cal.App.2d 345, 374, 28 Cal.Rptr. 357), the trial court erred in dismissing this cause of action. ⁵

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 abatement ⁶ it is a permanent nuisance upon which the statute of limitations (Gov.Code, § 911.2, Code Civ.Proc., §§ 338, subd. (2) and 340) had run at the time plaintiffs filed their claim.

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, 89 P. 599, quoting Beronio v. Southern Pacific R.R. Co. (1890) 86 Cal. 415, 421, 24 P. 1093.) The cases finding the nuisance complained of to be unquestionably permanent in nature have involved solid structures, such as a building encroaching upon the plaintiff's land (Rankin v. DeBare (1928) 205 Cal. 639, 271 P. 1050), ⁷ a steam railroad operating over plaintiff's land (Williams, supra, 150 Cal. 624, 89 P. 599), ⁸ or regrade of a street for a rail system (Eachus v. Los Angeles Consolidated Elec. Ry. Co. (1894) 103 Cal. 614, 37 P. 750). In such cases, plaintiffs ordinarily are required to bring one action for all past, present and future damage within three years after the permanent nuisance is erected. (Rankin, supra, 205 Cal. at p. 641, 271 P. 1050; Williams, supra, 150 Cal. at p. 626, 89 P. 599; Robinson, supra, 129 Cal. at p. 11, 61 P. 947.) The statutory period is shorter for claims against public entities. (Gov.Code, § 911.2.) Damages are not dependent upon any subsequent use of the property but are complete when the nuisance comes into existence. (Eachus, supra, 103 Cal. at p. 622, 37 P. 750.)

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 encroachments of a permanent nature erected upon one's lands, and a complaint made, not of the location of the...