Loma Portal Civic Club v. American Airlines, Inc.

• Decision Date: 11 August 1964
• Citation: 394 P.2d 548,61 Cal.2d 582,39 Cal.Rptr. 708
• Court: California Supreme Court
• Parties: , 394 P.2d 548 LOMA PORTAL CIVIC CLUB et al., Plaintiffs and Appellants, v. AMERICAN AIRLINES, INC., et al., Defendants and Respondents. L. A. 27070.

Page 708

39 Cal.Rptr. 708

61 Cal.2d 582, 394 P.2d 548

LOMA PORTAL CIVIC CLUB et al., Plaintiffs and Appellants, v. AMERICAN AIRLINES, INC., et al., Defendants and Respondents.

L. A. 27070.

Supreme Court of California, In Bank.

Aug. 11, 1964.

Rehearing Denied Sept. 10, 1964.

Driscoll, Harmsen & Wikins and John Gerald Driscoll, Jr., San Diego, for plaintiffs and appellants.

O'Melveny & Myers, Pierce Works, Warren M. Christopher, Louis T. LaTourrette, Los Angeles, Higgs, Fletcher & Mack, DeWitt A. Higgs, Dan E. Hedin, San Diego, Gibson, Dunn & Crutcher, Samuel O. Pruitt, Jr., Los Angeles, McInnis, Focht & Fitzgerald and J. W. McInnis, San Diego, for defendants and respondents.

PETERS, Justice.

This case arises out of the efforts of the owners of property near a public airport to enjoin certain flight operations. We hold that the refusal of the trial court to grant the injunction here sought was proper.

The use of large and powerful aircraft has created certain annoyances noise, vibrations, and in some cases apprehension to many people. The questions as to whether an individual should have redress for such annoyances, and, if so, under what theory and against whom, are very troublesome. These problems have become aggravated by the advent of jets, which are noisier than reciprocating engine craft and which require longer and shallower glide paths. (Anderson, Some Aspects of Airspace Trespass, 27 J. Air L. & Com. 341, 348.) The problems are peculiarly acute for landowners near airports, who suffer not only from the increase in the general noise level but particularly from their proximity to the low-level flying which is a necessary part of takeoff and landing. On the other hand, the great public benefit, in terms of commerce, transportation and defense, which is derived from the use of jet aircraft is obvious.

Plaintiffs are individuals who reside in the Loma Portal area of San Diego, and a nonprofit corporation whose members are also residents of that area. Loma Portal lies to the west of Lindbergh Field, and is in the flight path of the jet aircraft using that field's long jet runway. Defendants are commercial airlines which fly passenger jets into and out of Lindbergh Field. The operator of the field was not made a party. ¹

The complaint alleges that defendants' jets fly "in great numbers at excessively low altitudes and within the air space immediately above or in close proximity to the homes of residents of the Loma Portal area, * * * and below a safe altitude of flight such jet aircraft cause deafening, disturbing and frightening noises and vibrations, disrupt and interrupt sleep and repose and the use of the telephone, television and radio; disrupt, interrupt and prevent normal conversation and communication; create fear, nervousness and apprehension for personal safety; injuriously affect the health, habits and material comforts of plaintiffs, and prevent the normal use and reasonable enjoyment of their homes.' The prayer for relief seeks an injunction against defendants prohibiting their operation of jet aircraft 'at low altitudes in close proximity to such residences in such manner and at such times as to interfere unreasonably with the normal use and enjoyment by plaintiffs of their homes.' The prayer also seeks 'such further and other relief as the court may deem proper in the premises.' There is no prayer for damages, nor does anything in the complaint indicate in monetary terms the amount of damage sustained. Thus the action may be characterized as an action to enjoin a claimed nuisance. The trial judge, in granting the motion for summary judgment, stated that there had been no prayer for damages, and that he treated the complaint as seeking only an injunction. Plaintiffs did not move to amend in this respect, nor do they contend now on appeal that they are seeking damages. Therefore, we must affirm the summary judgment if there exists any defense in law which precludes the granting of the prayed-for injunction.

Lindbergh Field was owned and constructed by the City of San Diego. ² It has been in operation for over 35 years and has been used for regularly scheduled jet operations since 1960. The long jet runway, in it present size and location, was initially constructed during World War II with federal funds to accommodate heavy bombers. The California Aeronautics Commission has issued to Lindbergh Field the permit required under section 21663 of the Public Utilities Code. The field is part of the national airport plan (see 49 U.S.C. § 1102) and is one of four major west coast terminals. The master plan for its development has been approved by the Federal Aviation Agency (hereinafter FAA). It has received grants of federal funds under section 1103 of title 49 of the United States Code since 1951, as a condition of which the city has agreed to the following: that it will operate the airport for the public use and benefit; that it will operate in a suitable manner the airport and all facilities connected therewith which are necessary for airport purposes; that it will 'either by the adoption and enforcement of a zoning ordinance and regulations or by the acquisition of easements or other interests in lands or air space,' prevent the use of land outside its boundaries in any manner which would create a hazard to the landing, taking off, or maneuvering of aircraft at the airport or otherwise limit the usefulness of the airport; and that the master plan layout of the field shall be approved by the FAA. The Lindbergh Field Airport Traffic Control Tower is staffed and operated by FAA employees. The Lindbergh Field Traffic Pattern Area includes the area within a five-mile horizontal radius from the center of the airport, and aircraft entering that area are required to establish radio communication with the control tower and comply with clearances and instructions. (14 C.F.R. §§ 91.75, 91.85 (revised as of Jan. 1, 1964).)

The FAA is directed to formulate policy and prescribe air traffic rules and regulations governing the use of navigable air-space (49 U.S.C. § 1348), including rules 'for the protection of persons and property on the ground' (49 U.S.C. § 1348(c)). (See generally Air Traffic and General Operating Rules, 14 C.F.R., subch. F (revised as of Jan. 1, 1964).) There is regulation of operations in the vicinity of airports. (14 C.F.R. § 91.85.) According to the affidavit of the FAA's Western Region Assistant Administrator, 'the Agency, in cooperation with the aviation industry, has endeavored through engineering research and continued re-evaluation of aircraft operations to reduce the level of noise. Such studies with associated improvements are continuing today.'

The defendant airlines have FAA air-worthiness certificates (under 49 U.S.C. § 1423(c)) for each aircraft operated by them. Pacific Southwest Airlines has an FAA commercial operator certificate and the other lines have air carrier operating certificates (under 49 U.S.C. § 1424) and certificates of public convenience and necessity (under 49 U.S.C. § 1374), under which they are obligated to provide 'safe and adequate' service (see 49 U.S.C. § 1374(a)) to San Diego. Under their leases with the city, the airlines have the right to use the airport and all its appurtenances, including 'the landing field and any extensions thereof or additions thereto * * * and all other conveniences for flying, landing and take offs. * * *'

Although defendants' affidavits might have been more explicit in certain respects, plaintiffs did not sufficiently plead, nor do they claim, that they can make out a case on the hypothesis that a significant portion of defendants' overflights are in violation of federal law, that they are so conducted as to be imminently dangerous to plaintiffs, or that they are inconsistent with, rather than in furtherance of the public interest. Defendants have averred that they operate under obligation to provide safe and adequate service in the public interest, that their activities are conducted under extensive governmental supervision (enforceable by effective sanctions), and that their operations have, as a general matter, been determined to be in the public interest. Plaintiffs filed no counteraffidavits. The complaint attempted only to set forth a cause of action sounding in nuisance, i. e., unreasonable interference with plaintiffs' use of their property, and sought only injunctive relief. Under these circumstances, the prayed-for injunction was properly denied, as a matter of law, and, therefore, we must affirm the summary judgment. Under the pleadings and the uncontradicted affidavits filed by defendants, there is no substantial issue to be tried. In such a case, summary judgment is appropriate. (Goldstein v. Hoffman, 213 Cal.App.2d 803, 810-811, 29 Cal.Rptr. 334; Code Civ.Proc. § 437c.)

Where a prima facie case has otherwise been made out, an injunction will be granted only when such a remedy is appropriate, and in determining the availability of injunctive relief, the court must consider the interests of third persons and of the general public. (Rest., Torts, §§ 933, 942.) The national interest in commerce, transportation and defense is furthered by the operation of scheduled passenger, freight and postal jet carriage into and out of San Diego. The people of San Diego and of the State of California benefit from these operations. Plaintiffs do not contend that defendants' operations are not in furtherance of the public interest.

It is well established that public policy denies an injunction and permits only the recovery of damages where private property has been put to a public use by a public service corporation and the public interest has intervened. (See People v. Ocean Shore Railroad, 32 Cal.2d 406, 421, 196 P.2d 570, 6 A.L.R.2d 1179; Hillside Water Co. v. Los Angeles, 10 Cal.2d 677, 688, 76 P.2d 681; Gurnsey v. Northern Cal. Power Co., 160 Cal. 699, 709, 117 P. 906, 36 L.R.A.N.S., 185.) This...