Sneed v. Riverside County

• Decision Date: 11 July 1963
• Citation: 218 Cal.App.2d 205,32 Cal.Rptr. 318
• Court: California Court of Appeals Court of Appeals
• Parties: Archie J. SNEED, Plaintiff and Appellant, v. COUNTY OF RIVERSIDE, James Minor and Jessie F. Minor, Defendants and Respondents. Civ. 7054.

Page 318

32 Cal.Rptr. 318

218 Cal.App.2d 205

Archie J. SNEED, Plaintiff and Appellant, v. COUNTY OF RIVERSIDE, James Minor and Jessie F. Minor, Defendants and Respondents.

Civ. 7054.

District Court of Appeal, Fourth District, California.

July 11, 1963.

Rehearing Denied Aug. 1, 1963.

Hearing Denied Sept. 4, 1963.

Cameron W. Cecil, Los Angeles, for plaintiff and appellant.

Ray T. Sullivan, Jr., County Counsel, and James H. Angell, Asst. County Counsel, for defendant and respondent County of Riverside.

Swarner, Fitzgerald & Dougherty and Lewis F. Jacobsen, Riverside, for defendants and respondents James Minor and Jessie F. Minor.

BROWN, Justice.

Plaintiff has appealed from a judgment of dismissal entered after demurrers were sustained to the first amended supplemental complaint without leave to amend.

The first amended supplemental complaint (hereinafter called complaint) seeks to establish a cause of action in inverse condemnation against defendant County of Riverside, with the proceeds of such action belonging to plaintiff and not to defendants James Minor and Jessie F. Minor (hereinafter called Minor).

The only question is whether the court erred in sustaining a demurrer to the complaint. For that purpose the allegations of the complaint must be accepted as true. (Gegerty v. Coachella Valley Jr. College Dist., 57 Cal.2d 727, 730, 21 Cal.Rptr. 806, 371 P.2d 582.) We have concluded the complaint sets forth a cause of action.

In substance the complaint states that plaintiff owned 234 1/2 acres of improved real property adjacent to Ryan Airport which is owned, operated and maintained by Riverside County; pursuant to the authority given counties by Government Code sections 50485-50485.14, on February 10, 1958 the Riverside County Board of Supervisors adopted Ordinance No. 448, which was an 'Ordinance of the County of Riverside establishing airport operating areas and regulating height standards and limits therein.'

Plaintiff claims that by reason of the Ordinance the County took from him an air navigation easement over approximately 60 acres of his property, the easement ranging from 4 feet in height at that part of the property closest to the airport to a height of 75 feet farthest away, all within the 'Glide Angle of the Clear Zone and Approach Zone.' In his closing brief plaintiff assets the 4 feet mentioned above is wrong and instead the minimum distance above his property at the beginning of the easement is 3 inches. Whether the minimum figure is 3 inches, 4 feet, or 24 feet as claimed by respondent County, is a question of fact to be determined in trial.

The property over which the Ordinance is effective has a railroad on one side, a highway on the other, a road on the third side, and the fourth side is 10 feet from the airport runway. It is alleged that large numbers of aircraft have used the airport since the Ordinance was adopted; the intent and purose of the Ordinance was to obtain for the County and for all parties using the airport a flight easement at all levels above the 'Glide Angle of the Clear Zone and Approach Zone' ranging from 4 feet to 75 feet above plaintiff's land.

Plaintiff's property was a thoroughbred race horse breeding and training farm, certain improvement structures of which exceed the height permitted by the Ordinance.

It is claimed the fair market value of the property was reduced from $550,000 before the Ordinance was passed to $225,000 afterwards. Plaintiff filed his claim and it was rejected by the Board of Supervisors of Riverside County.

After suit was begun plaintiff sold the property to defendants Minor who knew of the lawsuit and orally agreed the proceeds should be plaintiff's property. Defendants do not question or argue this subject matter in their briefs.

The basic controversy is whether the Riverside County Ordinance is in reality a height limit ordinance authorized under the police power or whether it takes an air easement over plaintiff's property without payment of compensation therefor.

Article I, section 14 of the California Constitution provides:

'Private property shall not be taken or damaged for public use without just compensation having first been made to, or paid into court for, the owner * * *.'

The Code of Civil Procedure, sections 1239.2 and 1239.4 authorized counties to acquire airspace or air easements through eminent domain proceedings, in airspace above property if the taking of such is necessary to protect the approaches to airports.

The Airport Approaches Zoning Law, Government Code sections 50485-50485.14 defines and authorizes the elimination of airport hazards, to 'be accomplished, to the extent legally possible, by exercise of the police power. * * *' (Government Code section 50485.2.) (Italics ours.)

Section 50485.13 provides:

'In any case in which: * * * (b) the approach protection necessary cannot, because of constitutional limitations, be provided by airport zoning regulations under this article * * * the * * * county within which the property * * * is located or the * * * county owning the airport or served by it may acquire, by purchase, grant, or condemnation in the manner provided by the law under which a * * * county is authorized to acquire real property for public purposes, such air right, air navigation easement, or other estate or interest in the property or nonconforming structure or use in question as may be necessary to effectuate the purposes of this article.' (Italics ours.)

Ordinance No. 448 of Riverside County, which is attached to the complaint as an exhibit, describes itself as the 'Airport Approaches Zoning Ordinance,' and states that it is adopted pursuant to the Airport Approaches Zoning Law recited in the Government Code, supra.

Section 8 of Ordinance No. 448 provides in part:

'Nothing in this ordinance shall be construed as depriving any person who shall suffer damages by reason of the use of airspace adjacent to or over his property by aircraft of bringing an appropriate notice for such damages.'

In summary, the zoning law and the zoning ordinance permit elimination of airport hazards in approaches to airports through the exercise of the police power 'to the extent legally possible' (Gov.Code, sec. 50485.2); where 'constitutional limitations' prevent the necessary approach protection under the police power, the necessary property right may be acquired by purchase, grant, or condemnation in the manner provided by law.

While height restriction zoning has long been recognized as a valid exercise of the police power, there has been a reluctance to extend this method to the portection of approaches to airports; instead, air easements with payment of compensation appear to be the more acceptable, although not undisputed, method of protecting approach zones. (See 13 Hastings Law Journal 397, Airport Zoning and Height Restriction.)

We believe there is a distinction between the commonly accepted and traditional height restriction zoning regulations of buildings and zoning of airport approaches in that the latter contemplates actual use of the airspace zoned, by aircraft, whereas in the building cases there is no invasion or trespass to the area above the restricted zone.

In his complaint plaintiff seeks to set forth two bases upon which he is entitled to compensation, (1) upon an easement obtained through the Ordinance, and (2) on the ground that large numbers of aircraft take off and land, fly at low altitudes over plaintiff's property pursuant to instructions from the employees of defendant County. We believe that a cause of action has been stated on each ground.

In Griggs v. Allegheny County, 369 U.S. 84, 82 S.Ct. 531, 7 L.Ed.2d 585, the court held the operator of an airport was liable, under certain circumstances, for the taking of an easement of flight over property necessary for the use of airplanes in landing and taking off from the airport. The circumstances of that case involved actual interference with the livability of residential quarters near the end of the runway.

Johnson v. Airport Authority of City of Omaha, 173 Neb. 801, 115 N.W.2d 426, was an action brought by the Airport Authority to condemn airspaces over lands in the vicinity of an airport and to condemn obstructions within the designated airspaces. The action was brought pursuant to statutory provisions relating to the taking and damaging of private property for public use. The lowest portion of the easement was 26...