Highline School Dist. No. 401, King County v. Port of Seattle

• Decision Date: 15 April 1976
• Docket Number: No. 43804,K,No. 401,401,43804
• Citation: 548 P.2d 1085,87 Wn.2d 6
• Parties: HIGHLINE SCHOOL DISTRICT NO. 401, KING COUNTY, Washington, a Municipal Corporation, and the State of Washington on the relation of Highline School Districting County, Washington, a Municipal Corporation, Appellant, v. PORT OF SEATTLE, a Municipal Corporation, et al., Respondents.
• Court: Washington Supreme Court

Page 6

87 Wn.2d 6

548 P.2d 1085

HIGHLINE SCHOOL DISTRICT NO. 401, KING COUNTY, Washington, a Municipal Corporation, and the State of Washington on the relation of Highline School District No. 401, King County Washington, a Municipal Corporation, Appellant, v. PORT OF SEATTLE, a Municipal Corporation, et al., Respondents.

No. 43804.

Supreme Court of Washington, En Banc.

April 15, 1976.

Rehearing Denied July 7, 1976.

Roberts, Shefelman, Lawrence, Gay & Moch, William G. Tonkin, James S. Turner, Seattle, for appellant.

Bogle & Gates, William J. McDowell, John C. Coughenour, Kimberly W. Osenbaugh, Seattle, for respondents.

UTTER, Associate Justice.

Plaintiff school district appeals from the dismissal by summary judgment of a portion of its suit for damages allegedly caused by aircraft noise emanating from the flight operations of Seattle-Tacoma International Airport, owned and operated by respondents. The superior court dismissed plaintiff's inverse condemnation claim with respect to the 'old runway' at the airport on the grounds that a ten-year statute of limitations was applicable and that no new 'takings' occurred with respect to that runway during the ten years preceding commencement of this action. The court also dismissed plaintiff's nuisance and trespass causes of action on the ground that such theories were inapplicable to damages attributable to aircraft noise. We affirm the order of summary judgment as to the nuisance and trespass claims, but finding a genuine issue of material fact exists with respect to the inverse condemnation theory, reverse the judgment as to that claim and remand for further proceedings.

The school district maintains 14 schools, attended by approximately 7,500 students, surrounding the airport. Commercial operations at the airport began in 1947 using the 'old runway'. In 1970 a 'new runway' was opened about 800 feet west of and parallel to the 'old runway'. On June 29, 1973, the school district filed this action for damages allegedly caused by noise, vibration, and smoke from aircraft landing and taking off at the airport.

Statistics submitted by the port indicate the number of air carrier operations (which constituted 75 percent of all operations in 1972) more than doubled from 54,752 in 1963 to 114,372 in 1971. Average daily aircraft departures from the port's facility increased from 79 in 1960 to 159 in 1971. An accoustical engineer's affidavit submitted on behalf of the school district indicates many changes in quantity and quality of use and noise. From 1960 to 1972, the proportion of propeller aircraft using the airport diminished, while the proportion of turbojet and turbofan engines increased. Many of the four-engine jet transport aircraft have been replaced since 1963 by larger and noisier turbofan jet powered planes. These quantitative and qualitative changes in aircraft use as stated in the affidavit, result in doubling of the time lost for classroom and instructional purposes because of aircraft noise. Changes in jet operations and engines have resulted in potentials for substantial increases in the level of noise exposure for the district's schools which, in turn, can result in a substantial increase in the number of classrooms which have marginal or inferior noise environments for speech communication purposes. The trial court held that under the applicable law these circumstances presented no genuine issue of material fact.

I

Appellant assigns error to the ruling that a statute of limitations applies to bar that part of the inverse condemnation claim ¹ for damages caused by activities at the airport prior to 1963, and urges no limitation period applies to an action based upon this theory. ² Language from Ackerman v. Port of Seattle, 55 Wash.2d 400, 405, 348 [548 P.2d 1088] P.2d 664, 667 (1960) is said to support this where the court indicated:

We have held that an action for constitutional taking is not barred by any statute of limitations and may be brought at any time before title to the property taken is acquired by prescription. The prescriptive period in this state has been held to be ten years. See Aylmore v. Seattle (1918), 100 Wash. 515, 171 P. 659; Domrese v. Roslyn (1918), 101 Wash. 372, 172 P. 243; Litka v. Anacortes (1932), 167 Wash. 259, 9 P.2d 88.

This statement of the rule, however, is not quite precise since acquisition by prescription is the result of the running of the statute of limitations. 7 R. Powell, The Law of Real Property 1019, 1026 (1974); See Snohomish v. Joslin, 9 Wash.App. 495, 497, 513 P.2d 293 (1973). Prior Washington decisions, including those cited in Ackerman, establish that the ten-year prescriptive periof applies to an action for damages resulting from an exercise of the power of eminetnt domain. ³ Noting that an easement may be acquired by prescription, we stated in Northwest Cities Gas Co. v. Western Fuel Co., 13 Wash.2d 75, 83, 123 P.2d 771, 775 (1942), that:

The period required in this state to establish such a prescriptive right of way is ten years, by analogy to the provisions of Rem.Rev.Stat. § 156, which is the statute of limitations relative to actions for the recovery of real property.

The ten-year period in RCW 4.16.020, ⁴ the successor to Rem.Rev.Stat. § 156, is applicable to actions brought in the name or for the benefit of any municipal corporation, including school districts. RCW 4.16.160; Edmonds School Dist. No. 15 v. Mountlake Terrace, 77 Wash.2d 609, 611--12, 465 P.2d 177 (1970).

In early inverse condemnation actions alleging damages attributable to noise and vibration from airport operation, as contrasted with direct overflights of aircraft, we applied a three-year statute of limitations. Ackerman v. Port of Seattle, supra 55 Wash.2d at 406, 348 P.2d 664; Cheskov v. Port of Seattle, 55 Wash.2d 416, 419, 348 P.2d 673 (1960). In doing so, however, this court distinguished between 'takings' of property, which were held subject to the ten-year limitations period, and 'damagings,' to which a three-year period applied. We have subsequently abandoned the 'difficult and treacherous' distinction between a 'taking' and a 'damaging.' Martin v. Port of Seattle, 64 Wash.2d 309, 313, 391 P.2d 540 (1964), Cert. denied, 379 U.S. 989, 85 S.Ct. 701, 13 L.Ed.2d 610 (1965). This corresponds to the recognition that ownership of property entails more than the right to exclusive possession, and includes the right to use the land. Lange v. State, Wash., 547 P.2d 282 (1975); Richards v. Washington Terminal Co.,233 U.S. 546, 34 S.Ct. 654, 58 L.Ed. 1088 (1914); United States v. General Motors Corp., 323 U.S. 373, 65 S.Ct. 357, 89 L.Ed. 311 (1945). Hence, inverse condemnation actions seeking recovery for interference with the use and enjoyment of property, whether characterized by physical invasion or not, are governed by the ten-year prescriptive period.

Appellant seeks to avoid the consequences of this conclusion by invoking the rule that property of a municipal corporation held in its governmental capacity for public purposes cannot be acquired by adverse possession. West Seattle v. West Seattle Land & Improvement Co., 38 Wash. 359, 363, 80 P. 549 (1905); Commercial Waterway Dist. No. 1 v. Permanente Cement Co., 61 Wash.2d 509, 512--13, 379 P.2d 178 (1963). It argues that, as a municipal corporation (Edmonds School Dist. No. 15 v. Mountlake Terrace,supra), its property interest in use and enjoyment may not be acquired by prescription anymore than title to the land may be acquired by adverse possession, a doctrine closely analogous to prescription. 7 R. Powell, Supra at 1026. Our previous decisions, however, did not involve a situation in which the claimant was also a governmental entity. However valid the policies which underlie the rule against acquisition of municipal properties when the claimant is a private party, nothing favors its application where another unit of government seeks to acquire the property interest. By virtue of the doctrine of prescription, as the trial court reasoned, a ten-year statute of limitations applies to the school district's inverse condemnation action.

II

The trial court dismissed with prejudice the appellant's inverse condemnation claim insofar as it alleged damages attributable to operations on the 'old runway' at Seattle-Tacoma International Airport. It reasoned that a cause of action for interference with the use of the school district's property accrued prior to 1963 when the probable extent of aircraft operations using the 'old runway' became known and was therefore barred by the ten-year prescriptive period. The court also determined no new 'takings' had occurred with respect to that runway during the ten years preceding the commencement of this litigation and therefore entered summary judgment on this portion of the district's action. The district argues that even if the ten-year period is an applicable limitation, reasonable inferences from the facts submitted in opposition to the motion present a genuine issue as to whether a new cause of action accrued after 1963, thus precluding the entry of summary judgment with respect to either runway.

In determining the proper standard with which to ascertain when, in the context of airport noise, a cause of action for inverse condemnation has accrued, both parties and the trial court focused on language from Cheskov v. Port of Seattle, supra 55 Wash.2d at 420, 348 P.2d at 676, which states:

(A new cause of action accrues when) 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.

Appellant contends this language should be read as written, in the disjunctive, so that a cause of action accrues when the interference becomes substantially greater in degree. Respondents, with whom the trial court agreed, urge that increases in noise attributable to aircraft operations, even though substantial,...