Lombardy v. Peter Kiewit Sons' Co.

• Decision Date: 17 October 1968
• Citation: 266 Cal.App.2d 599,72 Cal.Rptr. 240
• Court: California Court of Appeals Court of Appeals
• Parties: Frank A. LOMBARDY et al., Plaintiffs and Appellants, v. PETER KIEWIT SONS' CO., a corporation, and People of the State of California, Acting By and Through the Department of Public Works, Defendants and Respondents. Civ. 31774.

Page 240

72 Cal.Rptr. 240

266 Cal.App.2d 599

Frank A. LOMBARDY et al., Plaintiffs and Appellants, v. PETER KIEWIT SONS' CO., a corporation, and People of the State of California, Acting By and Through the Department of Public Works, Defendants and Respondents.

Civ. 31774.

Court of Appeal, Second District, Division 3, California.

Oct. 17, 1968.

Rehearing Denied Nov. 13, 1968.

Hearing Denied Dec. 11, 1968.

Fadem & Kanner, Gideon Kanner, Los Angeles, for appellants.

Veatch, Carlson, Dorsey & Quimby, Robert P. Dorsey, and Henry F. Walker, Los Angeles, for respondent Peter Kiewit Sons' Co.

Harry S. Fenton, Sacramento, R. B. Pegram, Joseph A. Montoya, Richard L. Franck, Charles E. Spencer, Jr., Los Angeles, Jack M. Miller, La Habra, for respondent People of the State, acting by and through Dept. of Public Works.

SHINN, ^* Associate Justice.

The action is for damages claimed to have been sustained as a result of the construction and operation of the San Gabriel River Freeway in Los Angeles County. Plaintiffs are the owners of property adjacent to the freeway; defendants are the State of California and Peter Kiewit Sons' Co., a corporation. Plaintiffs are husbands and their wives who own, separately, 4 lots in Tract 16943; 4 lots in Tract 16944 and one lot in Tract 16194. The state, by and through the Department of Public Works, installed the freeway; Peter Kiewit Sons' Company was the contractor under contract with the state.

The complaint (third amended) purports to state a cause of action for physical damage to the real property of plaintiffs, for damage to their rights under tract restrictions and for detriment caused them upon the thory that the freeway constitutes a nuisance.

The demurrers of the defendants to the third amended complaint were sustained without leave to amend, judgment was entered in favor of the defendants and plaintiffs appeal. We have concluded that the complaint fails to state a cause of action upon any theory and that the judgment should be affirmed.

With respect to the alleged damage to the real property of plaintiffs the action is in inverse condemnation and compensation is claimed under Article I, section 14 of the California Constitution, the Fifth and Fourteenth Amendments of the United States Constitution and state legislation.

The requisites of a complaint in inverse condemnation are stated in Chadbourn, Grossman and Van Alstyne, California Pleading, section 896, pp. 850--851. ¹ The complaint reads in part as follows:

'6

'In the process of construction and operation of the above described freeway and as a proximate, direct and necessary result of the plan, design, execution, construction, maintenance and operation thereof, Defendants used or caused to be used variour machinery, equipment, labor and materials, in a manner which the Plaintiffs do not know to have been or not been required by the plans and specifications and the precise nature of which is not known to Plaintiffs but all of which is known to Defendants. Thereby Plaintiffs and their property have been subjected to noxious fumes, loud noise, dust-laden air, shocks and vibrations, imminent hazards from foreseeable accidents and collisions on the freeway, and mental, physical and emotional distress resulting therefrom. The abovedescribed acts and conditions have caused loss of sleep, eye irritation, difficulty in breathing, difficulty in hearing conversations and broadcasts, and have been an unceasing source of worry, disturbance and irritation. * * *

'13

That as a proximate result of said acts by the Defendants and each of them, Plaintiffs have sustained and incurred and are certain in the future to sustain and incur, losses, injuries and damages to real property and person in excess of $5,000.00 per Plaintiff, the exact amount of which presently cannot be ascertained. Plaintiffs request leave of court to amend this Complaint to insert the amount thereof when the same has been ascertained.'

There was no allegation that the land of plaintiffs had sunk or shifted, the foundations of the houses had sunk, that walls had been cracked, windows broken or that the buildings had sustained any other type of injury or damage.

The allegation that the described acts of defendants have caused 'damages to real property and person in excess of $5,000.00 per Plaintiff' was not an allegation that the real property of plaintiffs has sustained damage in any substantial amount.

No recovery in inverse condemnation may be had unless damage in a substantial amount to the property itself has been sustained. (Albers v. County of Los Angeles, 62 Cal.2d 250, 42 Cal.Rptr. 89, 398 P.2d 129; Frustuck v. City of Fairfax, 212 Cal.App.2d 345, 364, 28 Cal.Rptr. 357.)

The mental, physical and emotional distress allegedly suffered by plaintiffs by reason of the fumes, noise, dust, shocks and vibrations incident to the construction and operation of the freeway does not constitute the deprivation of or damage to the property or property rights of plaintiffs for which they are entitled to be compensated. In People ex rel. Dept. of Public Works v. Symons, 54 Cal.2d 855, 860--862, 9 Cal.Rptr. 363, 366, 357 P.2d 451, 454, it was said: 'It is established that when a public improvement is made on property adjoining that of one who claims to be damaged by such general factors as change of neighborhood, noise, dust, change of view, diminished access and other factors similar to the damages claimed in the instant case, there can be no recovery where there has been no actual taking or severance of the claimant's property. Bacich v. Board of Control (of State of California), 23 Cal.2d 343, 144 P.2d 818; Rose v. State of California, supra, 19 Cal.2d 713, 123 P.2d 505; Eachus v. Los Angeles etc. Ry. Co., supra, 103 Cal. 614, 617, 37 P. 750; Reardon v. City and County of San Francisco, 66 Cal. 492, 506 6 P. 317, (56 Am.Rep. 109).' Later cases are in accord. (Albers v. County of Los Angeles, supra, 62 Cal.2d 250, 42 Cal.Rptr. 89, 398 P.2d 129; Breidert v. Southern Pac. Co., 61 Cal.2d 659, 39 Cal.Rptr. 903, 394 P.2d 719; Katcher v. Home S. & L. Ass'n, 245 Cal.App.2d 425, 53 Cal.Rptr. 923.)

It was alleged in the complaint that the construction and operation of the freeway created an eyesore and 'It also interferes with and obstructs the view of and from Plaintiffs' homes and is an unsightly change in the character of the Plaintiffs' neighborhood in violation of deed restrictions of Tracts No. 16194, 16943, and 16944, which restrictions limit the uses within the Tracts to single family residential and non-offensive activities.' It was alleged that plaintiffs have been deprived of their property rights in the tract restrictions and have not been paid compensation for loss of the same.

Appellants are contending for an extravagant extension of the rights created by the customary restrictions upon the use of property in residential subdivisions. If such restrictions constituted property rights free from any type of interference, every owner of a lot in a restricted tract would have to be a party to a grant of a right of way, or an action to condemn the same, over any portion of the tract. No such roadblock to the development of local and state transportation systems exists.

Under the heading 'Governmental interference with property owners rights under deed restrictions is a compensable taking and damaging of property' appellants say, 'Poised in the path of appellants' argument on the point suggested by the above headline, is the 37-year old decision in Friesen v. City of Glendale (1930) 209 Cal. 524, 288 P. 1080, holding that deed restrictions are not compensable because they are not property but rights of a contractual nature. Nevertheless, appellants respectfully submit that this court should reach a contrary result for the following reasons. * * *' Appellants then cite a number of cases of the ...