Cheskov v. Port of Seattle

• Decision Date: 14 January 1960
• Docket Number: No. 34879,34879
• Citation: 55 Wn.2d 416,348 P.2d 673
• Parties: L. Paul CHESKOV and Luba Cheskov, his wife, and Antone Cheskov and Mary Cheskov, his wife, Appellants, v. PORT OF SEATTLE, a municipal corporation, Respondent, United Air Lines, Inc., a corporation, Northwest Airlines, Inc., a corporation, Pan American World Airlines, Inc., a corporation, and Western Airlines, Inc., a corporation, Appellants.
• Court: Washington Supreme Court

Page 416

55 Wn.2d 416

348 P.2d 673

L. Paul CHESKOV and Luba Cheskov, his wife, and Antone

Cheskov and Mary Cheskov, his wife, Appellants, v. PORT OF SEATTLE, a municipal corporation, Respondent,

United Air Lines, Inc., a corporation, Northwest Airlines,

Inc., a corporation, Pan American World Airlines,

Inc., a corporation, and Western

Airlines, Inc., a corporation,

Appellants.

No. 34879.

Supreme Court of Washington, En Banc.

Jan. 14, 1960.

Zundel, Merges, Brain & Isaac, Seattle, for appellants.

Holman, Mickelwait, Marion, Black & Perkins, J. Paul Coie, H. Weston Foss, Seattle, for appellant United Airlines, Inc.

Karr, Tuttle & Campbell, Payne Karr, F. Lee Campbell, Seattle, for appellants Northwest Airlines, Inc., and Western Airlines, Inc.

Graham, Green & Dunn, Seattle, for appellant Pan American World Airlines, Inc.

Bogle, Bogle & Gates, Edward G. Dobrin, Stanley B. Long, Tom M. Alderson, J. Kenneth Brody, Seattle, for respondent Port of Seattle.

Kellogg, Reaugh, Hart & Allison, George H. Hart, Seattle, John E. Stephen, Robert H. Doyle, Washington, D. C., amici curiae.

ROSELLINI, Judge.

The plaintiffs in this action reside upon land which they own adjacent to the Seattle-Tacoma International Airport. They seek to recover damages from the Port of Seattle (which owns and operates the airport) for reduction in the value of their property occasioned by the noise of airplanes landing, warming up, and taking off from the filed, and from the defendant airlines for trespasses over their property. The plaintiffs have appealed from a judgment dismissing their action against the Port of Seattle, and the defendant airlines have appealed from a judgment holding them guilty of technical trespasses and awarding nominal damages against each of them.

Neither the plaintiffs nor the defendant airlines having assigned error to the court's findings or to its failure to enter proposed findings, the case is before this court upon the findings of fact.

Regarding the liability of the Port of Seattle, the court found that, although the airport was lawfully operated, the property of the plaintiffs was substantially damaged, due to its proximity to the airport. In its brief, the Port assigns error to the finding of liability on its part for these damages, contending that because there was no finding of negligence or unreasonable use of its property, there was no basis on which this liability could properly be predicated. We need not consider the merits of this contention inasmuch as the court correctly found that the plaintiffs' cause of action, if such cause ever existed, was barred by the three-year statute of limitations, the first substantial damage having occurred more than three years prior to the institution of this action; and any error in the finding of initial liability was without prejudice to the defendant Port.

While there were findings that aircraft of each of the defendant airlines have on occasion flown over the plaintiffs' property at altitudes of from three hundred to five hundred feet, there is no finding that these flights have been frequent or that they have caused any actual damage to that property. The liability of the defendant Port was predicated, not on disturbance caused by the low flights of airplanes over the property nor on an appropriation of the airspace above it for airport purposes, but on depreciation of the value of the property due to the noise and vibration of airplanes warming up, taking off, and landing close by. Consequently, there is not involved in this case a question of a taking of an air easement over the plaintiff's property for use in connection with the airport. See Ackerman v. Port of Seattle, Wash. 348 P.2d 664.

In March, 1918, this court was called upon to determine the statute of limitations applicable where there has been a taking of private property for public use (Aylmore v. City of Seattle, 100 Wash. 515, 171 P. 659, L.R.A.1918E, 127) and where there has been, not a taking, but a damaging of private property for such use. Jacobs v. City of Seattle, 100 Wash. 524, 171 P. 662, L.R.A.1918E, 131. In both of these cases, it was contended by the city that the plaintiffs' actions, being actions not expressly provided for by the general statutes of limitations, were governed by the two-year statute (now RCW 4.16.130). In Aylmore v. City of Seattle, supra, it was contended, alternatively, that the action was one in trespass, to which the three-year statute was applicable. Rejecting both of these contentions, this court held that, where there has been a constitutional taking, the owner of the land or other interest taken is entitled to the benefit of the statute relating to adverse possession, inasmuch as the city could not sooner acquire the appropriated interest in the land if no action were instituted. This theory was, of course, inapplicable to a damaging of land, as opposed to a taking, but the court in Jacobs v. City of Seattle, supra, gave the plaintiff the benefit of the most favorable statute of limitations theoretically applicable, holding that where a municipality, having the power of eminent domain, damages property without having first brought an action to condemn the right to so damage it, there is an implied contract that the municipality will do that which the constitution decress it must do and will pay just compensation for the damage done. The three-year statute (RCW 4.16.080) was therefore held to be applicable. Subsequent cases recognizing the applicability of the three-year statute are Ackerman v. Port of Seattle, supra, Papac v. City of Montesano, 49 Wash.2d 484, 303 P.2d 654, and Gillam v. City of Centralia, 14 Wash.2d 523, 128 P.2d 661.

This was the statute applied by the trial court in this case. However, the judge was apparently of the opinion that some injustice was wrought in this case by the companion rule, that where the damage is permanent, the cause of action accrues when the first substantial damage is done and the statute begins to run from that time. Jacobs v. City of Seattle, supra; Gillam v. City of Centralia, supra; Papac v. City of Montesano, supra.

This concern of the trial court, which is shared by the plaintiffs, is voiced in the memorandum opinion, wherein the court observed that, although the evidence showed there had been substantial damage in 1951--when the airport became established as a full-scale commercial airport--the testimony did not reveal the amount of that damage with any accuracy, while there was testimony of considerable more damage in later years. Consequently, the court felt, the rule requiring the action to be brought within three years after the first substantial damage accrues, operates to deprive a landowner of the right to obtain compensation for all of the damage accruing to his property.

In this, the court either did not have in mind the proper measure of damages, which is the difference in market value of the land before the injury and immediately after (Anderson v. Port of Seattle, 49 Wash.2d 528, 304 P.2d 705), or assumed because the evidence of the effect on the market value was inadequate, it was unobtainable. The theory of damages is that, where a use which causes damage to adjacent property is permanent in nature, its effect upon the market value of that property is also permanent and is ascertainable at the time it becomes known that the use will continue. What effect the presence of a large commercial airport adjacent to the plaintiffs' property had upon the market value of that property at the time it was established and the character and extent of its probable operations became known, is simply a question of fact. This, it is not denied, was prior to 1951. There is nothing in the findings suggesting that the disturbances causing the damage have become different in kind or substantially greater in degree, or greater than could reasonably have been anticipated when the airport was established. In other words, the cause of action which the plaintiffs now have, so far as the findings reveal, is the same as the cause they had when the airport was established,...