City of Oakland v. Nutter

• Court: California Court of Appeals
• Writing for the Court: SIMS; MOLINARI, P.J., and ELKINGTON
• Citation: City of Oakland v. Nutter, 13 Cal.App.3d 752, 92 Cal.Rptr. 347 (Cal. App. 1970)
• Decision Date: 01 December 1970
• Parties: CITY OF OAKLAND, a municipal corporation, acting by and through its Board of Port Commissioners, Plaintiff and Appellant, v. Melvyn C. NUTTER et al., Defendants and Respondents, and sixteen companion cases. Civ. 27027.

Page 347

92 Cal.Rptr. 347

13 Cal.App.3d 752

CITY OF OAKLAND, a municipal corporation, acting by and through its Board of Port Commissioners, Plaintiff and Appellant, v. Melvyn C. NUTTER et al., Defendants and Respondents, and sixteen companion cases.

Civ. 27027.

Court of Appeal, First District, Division 1, California.

Dec. 1, 1970.

As Modified on Denial of Rehearing Dec. 23, 1970.

J. Kerwin Rooney, Port Atty., John Nolan, Deputy Port Atty., Oakland, Breed, Robinson & Stewart, Sp. Counsel by Ned Robinson, Oakland, for plaintiff and appellant.

Rogers, Vizzard & Tallett by John D. Rogers, San Francisco, for defendants and respondents.

SIMS, Associate Justice.

The City of Oakland, acting by and through its Board of Port Commissioners, as condemnor, has appealed from judgments rendered in favor of landowners in seventeen actions which were consolidated for trial. The actions were brought to 'acquire an air easement in the air space above the surface of the hereinafter described real property for a public use, to wit, for airport purposes, in order to protect the approaches of said Airport from the encroachment of structures or vegetable life of such height or character as to interfere with or be hazardous to the use of said Airport, * * *' (See Code Civ.Proc. § 1239.2. ¹ ) The real property over which the easement was sought is referred to as 'the Runway 9R clear zone area' and may be described as an area roughly 500 feet wide by 2,000 feet long running westerly and centered on a projection of the center line of a runway 9R, which is indicated as terminating 200 feet easterly of the clear zone area. The easement sought embraces all of the airspace above the '9R Clear Zone Surface,' which is depicted as a plane overlying the clear zone area rising from zero to fifty feet at its westerly extremity.

The city contends that the trial court improperly permitted, in connection with the evidence of damages for the taking of the air easement, consideration of such excessive noise, vibration, discomfort, inconvenience and other interference with the use of the property remaining to the landowners as was engendered by the use of the easement acquired. Its argument is two-pronged. First, the city asserts that the foregoing elements, if compensable, are a burden or charge on the servient estate separate and apart from a mere clearance easement which restricts the use of the property above a specified height; and that as such a separate burden, those elements were without the scope of the statute under which the city acted, were not contemplated by the ordinance of intention under which the city, through its port authority, proceeded, and were not within the issues framed by its complaint. Secondly, it insists that the elements in question are not compensable in any event. These contentions are examined and it is concluded that the trial court properly allowed consideration of noise and the other elements in determining the overall damages, including severance, which resulted from the condemnation of the air easement. Nevertheless, because the court erroneously referred to the provisions of section 1239.3 (see fn. 5 below) in the conclusions of law and the judgments, the case must be remanded for correction of those documents.

Procedural Background

On November 6, 1967 the Board of Port Commissioners passed an ordinance finding and determining that the public interest and necessity required the acquisition of air easements which were described in the same manner as has been quoted above from the complaints filed in the pending action. The complaints specifically point out: 'That said Air easement hereby sought shall Include the continuing right to clear and keep clear the above described real property of any and all obstructions. * * *' ² (Emphasis added.)

The complaints also allege, 'That the parcel of land described * * * over which said easement is sought to be condemned is and includes an entire parcel of land.' ³ By their answers the defendants alleged not only that they were the respective owners of the real property embracing the easements sought to be acquired and described in the complaint, but also of the entire larger parcel of real property of which the easements were a part. ⁴ Each defendant sought not only 'the fair market value of the easement sought to be condemned,' but also 'severance damages occasioned to the remainder by reason of the use of said air easement for airport purposes.'

The pretrial conference order listed among the legal issues to be determined by the trial court prior to submitting the case to a jury, the following: '* * * 3. The nature and extent of the easement being acquired. ( ) 4. Whether or not C.C.P. Sections 1239.2, 1239.3, and 1239.4 are applicable.' ⁵ The factual issues included the following: '1. Fair market value. ( ) 2. Severance damages, if any.' ⁶

When the case was called for trial the trial judge after hearing argument on the legal issues ruled as follows: '* * * I hold that the nature and extent of the easement acquired is the actual air easement sought and described in each of the actions, together with any severance damages that may be caused due to the interference and inconvenience, if any, that the remainder of the property suffers by reason of the take and by reason of the use to which the take is put.' He further indicated, 'That Code of Civil Procedure sections 1239.2 and 1239.3 are both applicable.' In accordance with the court's ruling, testimony was received concerning the nature and effect of the present and prospective use of the air easement for take-offs and landings, and the diminution in the value of the landowners' properties by reason of such use.

At the outset of the trial the jury were instructed to determine the fair market value of the property taken--the easement--and the severance damages. Similar instructions were given before the case was submitted to the jury for decision. At that time the court also read the jurors the provisions of sections 1239.2 and 1239.3 of the Code of Civil Procedure (see fns. 1 and 5 above). The jury was further instructed, 'An owner whose land is being condemned in part may not recover damages in the condemnation action to the remainder of his land caused by the manner in which the facility is to be operated on the lands of others. The detriment for which he may recover compensation is that which will result from the operation of the facility on his land alone.'

I

The extent of a landowner's interest in the airspace over his land and the extent to which he is entitled to be compensated for the use of that airspace for overflights, including take-offs and landings, has been the subject of considerable litigation and legislation. ⁷ For the purposes of this case it may be assumed as established by federal ⁸ and state law ⁹ that there is a public right of freedom of transit through the navigable airspace of the United States.

It is unnecessary to determine in this case whether that right is absolute over designated altitudes and may be enjoyed without compensation to the owner of the underlying land regardless of the circumstances attending the enjoyment of that right. ¹⁰ It has been determined that compensation must be made to the subjacent landowner ¹¹ when the use of the airspace over his land for take-offs or landings or both 'are so low and so frequent as to be a direct and immediate interference with the enjoyment and use of the land,' which in turn results in diminution in the value of the property. (United States v. Causby (1946) 328 U.S. 256, 266, 66 S.Ct. 1062, 1068, 90 L.Ed. 1206. See also, Griggs v. Allegheny County (1962) 369 U.S. 84, 88--89, 82 S.Ct. 531, 7 L.Ed.2d 585; Loma Portal Civic Club v. American Airlines, Inc. (1964) 61 Cal.2d 582, 594, 39 Cal.Rptr. 708, 394 P.2d 548, and Sneed v. County of Riverside (1963) 218 Cal.App.2d 205, 209--212, 32 Cal.Rptr. 318.) ¹²

A distinction has been recognized between an 'avigation' or 'flight' easement and a 'clearance' or 'obstruction' easement. (See, United States v. Brondum (5 Cir. 1959) 272 F.2d 642, 644--645; United States v. 64.88 Acres of Land (3 Cir. 1957) 244 F.2d 534, 535--536; Western v. McGehee (D.Md.1962) 202 F.Supp. 287, 289--290; United States v. 4.43 Acres of Land (N.D.Tex.1956) 137 F.Supp. 567, 572 (distinguished in Jankovich v. Indiana Toll Road Commission, 379 U.S. 487, 492, fn. 2, 85 S.Ct. 493, 13 L.Ed.2d 439); City of Charlotte v. Spratt (1965) 263 N.C. 656, 662, 140 S.E.2d 341, 346, and City of Jacksonville v. Schumann (Fla.App.1964) 167 So.2d 95, 98 (cert. den. (Fla.1965) 172 So.2d 597)). ¹³

With this background examination can proceed of the city's contention that the trial court erred in ruling and in instructing the jury that the city was taking more than a clearance easement, and in permitting evidence of the effect of flights through the overlying airspace on the value of the landowners' properties. (Cf. United States v. Brondum, supra, 272 F.2d 642, 643, fn. 1.) It may have been technically incorrect to rule and to instruct that the city was acquiring an easement under the provisions of section 1239.3 of the Code of Civil Procedure, in the absence of reference to that section in the ordinance of intention or in the complaint. Nevertheless, under applicable rules governing severance damages the landowners were entitled to recover for the diminution in the value of their remaining properties from the use of the airspace condemned--the area between the runway 9R clear zone approach surface and the ordinary navigable airspace--by overflights taking off from and approaching the airport.

'The necessity for appropriating private property for public use is not a judicial question. This power resides in the Legislature, and may either be exercised by the Legislature or delegated by it to public officers.' (Rindge Co. v. Los Angeles (1923) 262 U.S. 700, 709, 43 S.Ct. 689, 693, 67 L.Ed. 1186. See also, People ex rel. Dept....