City of Phoenix v. Harlan

• Decision Date: 13 April 1953
• Docket Number: No. 5583,5583
• Parties: CITY OF PHOENIX v. HARLAN et al.
• Court: Arizona Supreme Court

Page 609

255 P.2d 609

75 Ariz. 290

CITY OF PHOENIX v. HARLAN et al.

No. 5583.

Supreme Court of Arizona.

April 13, 1953.

Laurence H. Whitlow, City Atty., Jack D. H. Hays, Asst. City Atty., Jennings, Strouss, Salmon & Trask and Clarence Duncan, all of Phoenix, for appellant.

Harold R. Scoville and Charles A. Stanecker, of Phoenix, for appellees.

UDALL, Justice.

This is an appeal from an order of the trial court granting a motion for new trial after verdicts and judgment in favor of the defendant. The parties to this litigation are before us in the reverse order of their appearance in the trial court, but for convenience reference will be made to them herein as they there appeared, viz., Ray Harlan et al., as plaintiffs, and the City of Phoenix, as defendant.

Eleven different groups of plaintiffs joined in one complaint against the City of Phoenix, a municipal corporation, complaining of the use made of the newly constructed east-west runway on the south portion of Sky Harbor Muncipal Airport, which was then carrying all the traffic amounting to over forty flights daily. They alleged that the operation, maintenance and supervision of the runway by the defendant constituted a nuisance, and that there was a taking of their property without compensation. Complaint was made and evidence introduced to show that the nuisance and taking was the consequence of noise, vibration, bright lights and dust resulting from the operation of the runway. Plaintiffs prayed for (1) a permanent injunction restraining the use of the runway, (2) permanent damages to their property, and (3) damages for personal injury caused by nervous strain, fear and inconvenience. The total amount of damages sought against the defendant, as set out in the complaint, was the sum of $117,500.

The defendant denied that the use and operation by it of the runway in question was a nuisance, alleged that it was acting in a governmental capacity, that the granting of the relief prayed for by plaintiffs would constitute an unreasonable burden on interstate commerce, and alleged that the flights complained of were through navigable airspace wherein said aircraft had a public right of freedom of transit.

A lengthy trial was had before the court sitting with a jury. A total of fifty-one witnesses testified, thirty-eight on behalf of the plaintiffs and thirteen on behalf of defendant, and more than fifty exhibits were admitted. The reporter's transcript covers 1188 pages. The result was a unanimous verdict for the defendant against each and all plaintiffs and judgment was thereupon entered in accordance with the verdicts.

Thereafter, the plaintiffs filed a motion for new trial specifying some twelve grounds, four of which dealt with instructions. After oral argument the trial court requested memoranda on the question of alleged error in the giving of certain instructions. The motion for new trial was granted without specifying the grounds; however, eight days later the court, at the request of counsel for defendant, entered a minute order stating it was of the opinion that defendant's requested instructions Nos. 5, 12 and 22, given by it, were prejudicial. This appeal followed.

The three assignments of error are in substance that the trial court erred in granting plaintiffs' motion for a new trial upon the ground that these three instructions were prejudicial. The defendant asserts that said instructions, and each of them, were correct statements of the law and were justified under the pleadings and the evidence and were not prejudicial to plaintiffs' cause.

The testimony at the trial disclosed that the runway in question is a paved strip 150 feet wide and 6000 feet long, the westernmost end of which is 1365 feet from the fence marking the western boundary of the airport. The plaintiffs' realty holdings are located in the neighborhood of 24th and Mohave streets (outside the city limits of Phoenix) and adjacent to the south portion of the west boundary of Sky Harbor. The nearest house of any of the plaintiffs is some 300 feet west of the airport fence. One residence is directly in the path of the runway, whereas the others are situated to the north thereof varying up to a distance of approximately 400 feet.

The evidence was in sharp conflict as to the height of flights over the plaintiffs' residences. Plaintiffs in their testimony placed the average elevation of both takeoff and landings as between 60 and 100 feet. Witnesses for defendant testified that the average elevation was between 350 and 500 feet for the four-motor aircraft and higher for the lighter planes. There was also a conflict as to the area where the large airplanes warmed up, causing part of the offensive noise and dust.

We are of the opinion that where, as here, there is manifest from the record the particular basis for the trial court's order granting the motion for new trial, our review is limited to a consideration of the sufficiency of the grounds for the order, and to search the record for other possible bases not adopted by the trial court is unnecessary. See: Bryan v. Inspiration Consol. Copper Co., 27 Ariz. 188, 231 P. 1091, and Southern Pacific Co. v. Shults, 37 Ariz. 142, 290 P. 152.

Before treating the specific assignments of error relative to the correctness or incorrectness of the instructions given there are certain pertinent legal principles to be kept in mind, viz.,

'In passing upon the correctness and propriety of instructions, a reviewing court is required to consider the charge as a whole, rather than to search for technical defects, verbal inaccuracies, or insufficiencies which may appear in individual instructions or portions thereof when examined apart from the context and the other parts of the charge * * *.' 3 Am. Jur., Appeal and Error, Sec. 837; Cf. Wolff v. First Nat. Bank, 47 Ariz. 97, 53 P.2d 1077.

and, while the granting of a motion for new trial is to a great extent discretionary with the trial court, it must needs be a legal discretion, one based upon reason and law. Therefore, in the instant case, if the lower court granted a new trial because of instructions believed to be erroneous which were in fact proper, or if improper in any respect were not prejudicial, then the court having misjudged the correctness of said instructions, there is no discretion to be exercised. Sharpensteen v. Sanguinetti, 33 Ariz. 110, 262 P. 609; Southern Pacific Co. v. Shults, supra; Southern Arizona Freight Lines v. Jackson, 48 Ariz. 509, 63 P.2d 193; Rothman v. Rumbeck, 54 Ariz. 443, 96 P.2d 755.

Instruction No. 22

The questioned instruction follows:

'You are instructed that if you find that the defendant, City of Phoenix, had provided an airport with runways of sufficient length and construction, and landing and takeoff areas adjacent thereto of sufficient size to enable the planes using it to take off and land without interfering with the substantial enjoyment by the plaintiffs of their properties, then you may not return a verdict in favor of the plaintiffs and against the defendant because of the improper use of those facilities by third persons, unless you first find that the defendant, City of Phoenix, had actual notice of the improper use of its runways or by the exercise of reasonable care should have known of such improper use.'

There are two possible bases of liability. The first is that if, because of the character of the airport facilities, planes in their operation could not avoid interfering with the substantial enjoyment by the plaintiffs of their property, then the defendant would be liable for the nuisance it has created.

The instruction (embodying the second basis) presupposes an adequate facility so that planes operating properly therefrom would not substantially interfere with the plaintiffs' enjoyment of their property, and if third persons are substantially interfering therewith, the defendant cannot be held liable unless it knew or should have known of the improper use of such facilities.

There being no claim by plaintiffs that the airport facility was not adequate, we shall consider only the second ground. It is predicated upon the rule of liability of a landowner for a nuisance on his land created by some person for whose acts he is not legally responsible. Therefore, if the facts show the alleged nuisance was created by other parties for whose actions the defendant is not responsible then the instruction as given is correct.

As to Sky Harbor Airport the defendant is a landowner in possession who licenses others to use the facilities of the field. The defendant neither owns nor operates any airplanes, nor have the plaintiffs alleged a joint operation with any...