Spar v. Pacific Bell
Decision Date | 14 November 1991 |
Court | California Court of Appeals Court of Appeals |
Parties | Robert SPAR, et al., Plaintiffs and Appellants, v. PACIFIC BELL, Defendant and Respondent. B045617. |
Lascher & Lascher and Edward L. Lascher, Ventura, for plaintiffs and appellants.
Margaret deB. Brown, Sarah J. Diehl, San Francisco, R. Bart Kimball, John Keiser and Elta M. Wilson, Los Angeles, for defendant and respondent.
Canord Investment Company 1 appeals from the trial court's judgment which held, because Respondent Pacific Bell's telephone facilities were a permanent nuisance, plaintiff's cause of action was barred by the three-year statute of limitations for a permanent nuisance/trespass. Plaintiff contends the nuisance was instead continuing and, therefore, its cause of action was not barred by the statute of limitations. We find the trespass/nuisance to be permanent in nature, barred by the statute of limitations, and therefore affirm the judgment of the trial court.
In April 1988, Canord Investment Company filed suit against Pacific Bell, a public utility, for trespass and nuisance. Both theories of recovery were based on the existence of telephone lines and equipment which defendant buried under plaintiff's property in 1963. Defendant's amended answer asserted the affirmative defenses that it had acquired the right to maintain the facilities on the property as a prescriptive easement and also, that the three-year statute of limitations for a permanent trespass/nuisance had run at the time plaintiff filed its claim. Defendant also cross-complained for ejectment and for compensation under the doctrine of good-faith improvement of another's property.
Prior to trial, defendant removed the facilities (conduits, wires, and manhole) from the property in response to plaintiff's demands.
The trial court bifurcated the trial and considered the statute of limitations and prescriptive easement defenses first. The trial court found defendant had placed the facilities under the property in 1963. The parties agreed the facilities had been situated under plaintiff's property. The facilities started at an easement, which defendant had along the adjoining public street, then turned and went under the adjacent private property, now owned by plaintiff. The facilities deviated beyond the easement and onto plaintiff's property from as little as twelve to sixteen inches in some places, to as much as ten to fifteen feet in other places.
The evidence also showed the facilities were intentionally placed by defendant to provide telephone service for the public indefinitely. An employee for defendant Pacific Bell testified the facilities were intended to be serviceable for at least 100 years. Heavy equipment was required to install the new equipment and remove the old facilities which were buried ten feet underground with dirt tightly compacted around them. Plaintiff had no knowledge of the facilities until 1987 when it decided to build a shopping center on the property. Defendant admitted it had no recorded easement for the facilities to remain on the property.
The trial court ruled: (1) the elements of prescription were not established by the evidence, and (2) plaintiff's claims were barred by the three-year statute of limitations for a permanent nuisance/trespass. The court explained because it was the intent of defendant for the facilities to remain indefinitely, the facilities were a permanent nuisance/trespass upon which the three-year statute of limitations had run at the time plaintiff filed its claim. (Code Civ.Proc., § 338, subd. 2.)
Plaintiff appeals from the trial court's ruling on the ground it was error to find the nuisance/trespass permanent rather than continuing in nature, and, as a continuing nuisance, the statute of limitations would not bar the present action.
In nuisance law, two classifications have emerged which determine the remedies available to injured parties and the applicable statute of limitations. The two primary classifications are permanent and continuing nuisances. Clear-cut distinctions between permanent and temporary nuisances are elusive at best. As one commentator noted: "In a number of cases courts have drawn a distinction between damages that are permanent and those that are temporary, allowing recovery of diminished market value where the injury was permanent and allowing cost of repairs where it was temporary or repairable at reasonable cost. In other situations courts have drawn a confusingly similar, but actually quite different distinction. This is the distinction between permanent sources of damage, such as nuisances or trespasses that cannot or will not be abated, and temporary sources of damage, such as nuisances or trespasses that will naturally terminate or those that will be terminated by court order. Courts sometimes overlook the distinction with resulting confusion. In any event, the distinction is difficult to The lack of definitive guidelines for distinguishing between temporary and permanent nuisances/trespasses, prompted the following treatise comment:
apply and is worth careful attention." (Fns. omitted; original emphasis.) (Dobbs, Remedies (1973) § 5.4, p. 335.)
We now review the legal precedents that have evolved in California jurisprudence. In Kafka v. Bozio (1923) 191 Cal. 746, 750-751, 218 P. 753, the court held,
Cases which have found the nuisance complained of to be "unquestionably permanent" in nature have involved solid structures, such as a building encroaching upon the plaintiff's land. (Troeger v. Fink (1958) 166 Cal.App.2d 22, 332 P.2d 779; Rankin v. DeBare (1928) 205 Cal. 639, 271 P. 1050.) (See also Bertram v. Orlando (1951) 102 Cal.App.2d 506, 227 P.2d 894 [ ]; Williams v. Southern Pacific R.R. Co. (1907) 150 Cal. 624, 89 P. 599 [ ]; and Field-Escandon v. DeMann (1988) 204 Cal.App.3d 228, 251 Cal.Rptr. 49 [ ].)
It has been stated "[t]he clearest case of a permanent nuisance or trespass is the one where the offending structure or condition is maintained as a necessary part of the operations of a public utility." (Spaulding v. Cameron (1952) 38 Cal.2d 265, 267, 239 P.2d 625; see also, 3 Witkin, Cal.Procedure (3d ed. 1985) Actions, §§ 423-424. pp. 456-458; 58 Am.Jur.2d, Nuisances, § 27, p. 688, [a permanent nuisance is of such a character as it will be reasonably certain, or will be presumed, to continue indefinitely, or affect the value of the property permanently].)
In cases of a permanent trespass or nuisance, the damages are complete when the nuisance comes into existence and plaintiff is required to bring one action for all past, present and future damages within three years after the permanent nuisance/trespass has occurred. (Rankin v. DeBare, supra, 205 Cal. at p. 641, 271 P. 1050.)
In contrast, the two primary characteristics of a continuing nuisance or trespass are: (1) the nuisance/trespass is abatable, and/or (2) the damages from the nuisance/trespass may vary over time. (Kafka v. Bozio, supra, 191 Cal. at p. 751, 218 P. 753 [ ].)
Classic examples of a continuing nuisance include an ongoing or repeated disturbance where damages may vary over time, such as a nuisance caused by noise, smoke, and vibrations from airplane flights over homes (Baker v. Burbank-Glendale-Pasadena Airport Authority (1985) 39 Cal.3d 862, 218 Cal.Rptr. 293, 705 P.2d 866), property contaminated by hazardous waste by the prior owner (Mangini v. Aerojet-General Corp. (1991) 230 Cal.App.3d 1125, 281 Cal.Rptr. 827), and a dairy whose noxious odors pervade surrounding properties (Wade v. Campbell (1962) 200 Cal.App.2d 54, 19 Cal.Rptr. 173). Even such a trespass as a locked gate placed by a city barring access to a public road has been held to be a continuous nuisance...
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