COUNSEL:

Burt Pines and Roger Arnebergh, City Attorneys, Milton N. Sherman, Chief Assistant CityAttorney, John F. Haggerty, Assistant City Attorney, and James H. Pearson, Deputy City Attorney, for Defendant and Appellant.

Ellis & Sloan, Lyle C. Ellis and James E. Sloan for Plaintiffs and Respondents.

ASHBY, J.

Defendant appeals from a judgment in inverse condemnation in favor of numerous individual plaintiffs following a trial by the court. The issue in this appeal is whether the City of Los Angeles (City), as owner and operator of Los Angeles International Airport (LAX), is liable in inverse condemnation to owners of residential property in the neighborhood of the airport which is damaged and reduced in market value by the noise from jet aircraft taking off and landing at the airport. The trial court answered this question in the affirmative, and granted judgment against the City with respect to 520 parcels of such property. We have concluded that the trial court was correct and that the judgment should be affirmed.

Between 1959, when jet aircraft first began using LAX, and 1965, the City permitted gradually increasing numbers of jet flights to and from the airport. [FN 1] These aircraft emit loud and disturbing noises. An acoustical expert with the consulting firm of Bolt, Beranek and Newman prepared a study for the Federal Aviation Administration entitled "1965, 1970, and 1975 Noise Exposure Forecast Areas for Los Angeles International Airport." The purpose of the study was to determine the effects of aircraft noise on land use in areas surrounding the airport. The effective perceived noise level (EPNL), which measures the annoyance caused by such noise, was determined based on known noise levels of the engines, altitudes, distances, flight paths, and takeoff and landing patterns. Adjustments were made to reflect the number of flights per day and the timing of the flights, since frequent flights and nighttime flights are more annoying to residents. Based on these values three noise exposure forecast (NEF) areas were determined. [FN 2] NEF area C was the one in which jet aircraft noise had the greatest effect upon people below. Single family construction is not recommended in NEF area C because noise is likely to constitute a severe interference with the use of land for that purpose. The bulk of the properties originally involved in this suit are in NEF area C.

[FN 1] The number of jet aircraft landing at Los Angeles International Airport was as follows:

Year	Yearly Number	Average Number Landings
1960	20,171	55
1961	33,932	93
1962	47,215	129
1963	59,776	164
1964	69,503	191
1965	86,855	238

[FN 2] For a readable explanation of this noise measurement technique, see Comment, Port Noise Complaint (1970) 6 Harv. Civ. Rights-Civ. Lib. L.Rev. 61, 65-74.

Most of the trial was occupied by the testimony of a team of appraisers for plaintiffs. They visited the properties of the named plaintiffs in 1963, heard the jet noise themselves, and prepared appraisals of the properties involved. They appraised the market values of these properties and what their market value would have been if unaffected by jet noise, based on sales of comparable properties in other areas. The trial court determined that 581 of the parcels had been damaged and their market value reduced by the jet noise. [FN 3] The reductions in market value ranged from $400 to $6,000 but were preponderantly in the neighborhood of $1,000. In the judgment the court also granted an easement to the City for flights of jet aircraft in the air space over and near the properties involved, to the extent of such usage in May 1963, which was determined to be the time of the taking or damaging of property in this case.

[FN 3] This case originally involved some 750 parcels. The trial court found that some of them had not been damaged. Furthermore, as to 61 of the 581 damaged parcels, the plaintiffs presented inadequate proof of ownership and therefore compensation was granted only as to 520 parcels.

There is no appellate case in California that squarely holds the municipal operator of an airport liable in inverse condemnation to the owners of residential property in the vicinity of the airport which is damaged and diminished in market value by noise from jet aircraft landing and taking off at the airport. The subject has been treated by numerous legal commentators, however, [FN 4] and we are guided to our conclusion by prior decisions of the California Supreme Court which imply this result, as well as by other California decisional and statutory law and decisions of the United States Supreme Court and courts of sister states.

[FN 4] Many useful authorities are collected in City of Oakland v. Nutter, 13 Cal.App.3d 752, 761, fn. 7 [92 Cal.Rptr. 347]; and in Berger, You Know I Can't Hear You When the Planes Are Flying (1972) 4 Urban Law. 1, fn. 3. Additional authorities not listed in those footnotes include Russell, Recent Developments in Inverse Condemnation of Air Space (1973) 39 J. Air L. & Com. 81; Vittek, Airport Noise Control - Can Communities Live Without It? Can Airlines Live With It? (1972) 38 J. Air L. & Com. 473; Berger, The California Supreme Court - A Shield Against Governmental Overreaching: Nestle v. City of Santa Monica (1973) 9 Cal. Western L.Rev. 199; Note, Airport Noise: An Inadequate Judicial Response (1972) 4 Conn.L.Rev. 634; Spater, Noise and the Law (1965) 63 Mich.L.Rev. 1373. Although the subject was studied by the California Law Revision Commission, the commission decided not to recommend legislation pending clarification by the courts. (10 Cal.L.Revision Com. Rep. (1971) pp. 1001, 1013.)

In the other major Supreme Court decision on this issue, Griggs v. Allegheny County (1962) 369 U.S. 84 [7 L.Ed.2d 585, 82 S.Ct. 531], the court held that Allegheny County, which owned and operated the Greater Pittsburgh Airport, was liable for a taking of property under the Fifth Amendment where the noise from aircraft taking off and landing at the airport on flight paths over the Griggs' property rendered the property undesirable and unbearable for residential use. The court saw no difference between the county's responsibility to pay for the land on which the runways were built and its responsibility for the air easements necessary for operation of the airport. "The glide path for the northeast runway is as necessary for the operation of the airport as is a surface right of way for operation of a bridge, or as is the land for the operation of a dam. [Citation.] As stated by the Supreme Court of Washington in Ackerman v. Port of Seattle, 55 Wash.2d 401 [sic 400], 413, 348 P.2d 664, 671, '... an adequate approach way is as necessary a part of an airport as is the ground on which the airstrip, itself, is constructed ....' Without the 'approach areas,' an airport is indeed not operable. Respondent in designing it had to acquire some private property. Our conclusion is that by constitutional standards it did not acquire enough." (369 U.S. at p. 90 [7 L.Ed.2d at p. 589].)

A federal circuit court has narrowly interpreted Causby and Griggs to mean that there is no taking under the Fifth Amendment unless the aircraft invade the air space directly over the plaintiff's property and the property is rendered uninhabitable. (Batten v. United States (10th Cir. 1962) 306 F.2d 580, cert. den., 371 U.S. 955 [9 L.Ed.2d 502, 83 S.Ct. 506], rehg. den., 372 U.S. 925 [9 L.Ed.2d 731, 83 S.Ct. 718].) However, several states have interpreted their own constitutions to require compensation under less strict circumstances when the noise from aircraft has diminished the market value of the homeowner's property.

The leading case is Thornburg v. Port of Portland (1962) 233 Ore. 178 [376 P.2d 100], second appeal (1966) 244 Ore. 69 [415 P.2d 750]. There the Oregon Supreme Court rejected any arbitrary limitations based upon the altitude of the particular aircraft or upon a technical trespass of the air space directly over the homeowner's land. The court held that there could be a taking whenever the government acts in such a way as substantially to deprive an owner of the useful possession of his property. (Thornburg v. Port of Portland, supra, 376 P.2d at p. 106.) In the second appeal the court held: "The proper test to determine whether there has been a compensable invasion of the individual's property rights in a case of this kind is whether the interference with use and enjoyment is sufficiently direct, sufficiently peculiar, and of sufficient magnitude to support a conclusion that the interference has reduced the fair market value of the plaintiff's land by a sum certain in money. If so, justice as between the state and the citizen requires the burden imposed to be borne by the public and not by the individual alone." (Thornburg v. Port of Portland, supra, 415 P.2d at p. 752.)

Similarly in Martin v. Port of Seattle (1964) 64 Wn.2d 309 [391 P.2d 540], cert. den., 379 U.S. 989 [13 L.Ed.2d 610, 85 S.Ct. 701], the Supreme Court of Washington held that there should be no arbitrary distinction between property directly overflown by jet aircraft and that which is not. The court noted that article I, section 16, amendment 9 of the Washington Constitution refers to a "taking" or "damaging" of property (as does art. I, s 14 of the Cal. Const.) and thus is broader than the "taking" provision of the United States Constitution. The court found it unnecessary to become "embroiled" in this distinction, however, because in the prior Washington decision of Ackerman v. Port of Seattle (1960) 55 Wn.2d 400 [348 P.2d 664, 77 A.L.R.2d 1344] (quoted by the United States Supreme Court in Griggs v. Allegheny County, supra), property was defined to include the unrestricted right to use, enjoy, and dispose of the land, and the frequent flight of aircraft over the land reducing its market value was held to be a compensable taking of an easement. In Martin the court held that where the flights in question caused such interference with the use and enjoyment of the property as to result in a measurable diminishment in market value, the government and not the individual homeowner should be required to bear that burden.

Thornburg was followed in City of Jacksonville v. Schumann (Fla.App. 1964) 167 So.2d 95, 99-102, second appeal (Fla.App. 1967) 199 So.2d 727, 729, cert. den., 390 U.S. 981 [19 L.Ed.2d 1278, 88 S.Ct. 1101], and in Johnson v. City of Greeneville (1968) 222 Tenn. 260 [435 S.W.2d 476, 478-480].

An examination of existing California law suggests that California should adopt an approach similar to that of Thornburg and Martin.

California's landmark case dealing with the problem of noise from jets taking off and landing at an airport is Loma Portal Civic Club v. American Airlines, Inc., 61 Cal.2d 582 [39 Cal.Rptr. 708, 394 P.2d 548]. In that case the residents of a neighborhood in the flight path of jet aircraft using Lindbergh Field in San Diego sought to enjoin the airlines from flying at low altitudes in close proximity to plaintiffs' residences in such manner and times as to interfere unreasonably with the normal use and enjoyment by plaintiffs of their homes. The Supreme Court held "that under the facts of this case, i.e., the operation of aircraft with federal airworthiness certificates in federally-certificated, scheduled passenger service, in conformity with federal safety regulations, in a manner not creating imminent danger, and in furtherance of the public interest in safe, regular air transportation of goods and passengers, an injunction is not available." (Id., at p. 591.)

The court stressed, however, that plaintiffs did not seek damages and had not named the operator of the airport as a party. (Id., at pp. 585-586 and fn. 1.) In stating its holding the court emphasized: "Nothing herein is intended to be a determination of the rights of landowners who suffer from airplane annoyances to seek damages from the owners or operators of aircraft or to seek compensation from the owner or operator of an airport." (Id., at pp. 590-591.) The court also stated: "Finally, it is clear, of course, that state courts have jurisdiction to award compensation for a 'taking,' without regard to whether the overflights conform to federal law, when such relief is appropriate." (Id., at p. 594. See also Anderson v. Souza, 38 Cal.2d 825, 838-839 [243 P.2d 497].)

Our Supreme Court faced this problem a second time in Nestle v. City of Santa Monica, 6 Cal.3d 920 [101 Cal.Rptr. 568, 496 P.2d 480]. In that case property owners in the vicinity of Santa Monica Airport sued the city for both property and personal injury damages on the ground that vibrations, fumes, and noise from jets landing and taking off at the airport caused damage to their property, interfered with free enjoyment of the property and resulted in pain, suffering and emotional disturbance. They had four theories: (1) inverse condemnation, (2) nuisance, (3) negligence, (4) zoning violations. Only the inverse condemnation count went to trial, and as to it the trial court gave judgment to the defendant on the ground that plaintiffs had failed to prove their property was damaged. The trial court dismissed the other counts, rejecting the nuisance theory on grounds of governmental immunity.

The Supreme Court's opinion does not resolve the question of liability in inverse condemnation which faces us in this case. This is because the trial court had found in favor of the defendant on the issues of excessive noise and diminution in property values, and the Supreme Court merely held that the trial court's finding was supported by substantial evidence. (Id., at pp. 925-928.) However, the Supreme Court reversed as to the nuisance count, holding that Government Code section 815 does not give immunity to the city for operating an airport in a manner constituting a nuisance. (Id., at pp. 931-937.) The court felt that its conclusion was "further supported by the profound interest the 1970 Legislature demonstrated in the eradication of the evils caused by the various forms of pollution, with particular emphasis on noise pollution. Since it is well-documented that a nuisance theory provides an effective means for redress in a wide range of actions resulting from pollution including noise disturbance, it appears that, in deleting the [Law Revision] commission's recommendation to preclude governmental nuisance liability, the Legislature intended to preserve this additional weapon in the arsenal available to combat grievous injury to the environment." (Id., at pp. 936-937; fns. omitted.)

The court's discussion in Nestle indicates that public policy does not preclude the imposition of liability on the City in the instant case. There is a very close relation between the concepts of inverse condemnation and nuisance by a governmental entity. [FN 5]

[FN 5] Van Alstyne, Just Compensation of Intangible Detriment: Criteria for Legislative Modifications in California (1969) 16 U.C.L.A. L.Rev. 491, 525, fn. 130; Fadem & Berger, A Noisy Airport Is a Damned Nuisance! (1971) 3 Sw. Univ. L. Rev. 39, 48, fn. 35; Stoebuck, Condemnation by Nuisance: The Airport Cases in Retrospect and Prospect (1967) 71 Dick. L.Rev. 207, 209; Thornburg v. Port of Portland, supra, 376 P.2d at pp. 105-107. To date inverse condemnation has been the most successful theory for plaintiffs seeking relief against aircraft noise. Comment, The Jet-Set and the Law: A Summary of Recent Developments in Noise Law as It Relates to Airport and Aircraft Operations in California (1970) 1 Pacific L.J. 581, 588.

[FN 6] Mr. Justice Sims' opinion in Nutter contains a thorough discussion of authorities relating to many of the issues raised in this case. The question in Nutter, however, was narrowly framed in the context of severance damages, and the court was not required to decide several of these issues.

The enactment of section 1239.3 recognizes that the use of air space in which excessive noise interferes with the use and enjoyment of real property in the vicinity of the airport may constitute a taking by the airport. This section was enacted to permit the appropriate governmental bodies to take the initiative in securing rights which might otherwise be subject to inverse condemnation proceedings. (City of Oakland v. Nutter, supra, 13 Cal.App.3d 752, 766; Review of Selected 1965 Code Legislation (Cont.Ed.Bar) pp. 88-89.)

Although section 1239.3 was enacted in 1965, after the cause of action arose in the instant case, it is indicative of legislative policy. The court in City of Oakland v. Nutter, supra, stated: "The adoption of section 1239.3 does not indicate that the factors set forth therein are not to be considered in an action to condemn under the earlier adopted sections, either before or after 1965."

The City contends that the inconveniences and noise damage suffered by residents near the airport do not amount to a taking of property but instead are merely "consequential" damages which plaintiffs must suffer without compensation. The City relies upon People v. Symons, 54 Cal.2d 855, 858-859 [9 Cal.Rptr. 363, 357 P.2d 451], where it is stated (quoting Eachus v. Los Angeles etc. Ry. Co., 103 Cal. 614, 617 [37 P. 750]): "'The Constitution does not, however, authorize a remedy for every diminution in the value of property that is caused by a public improvement. The damage for which compensation is to be made is a damage to the property itself, and does not include a mere infringement of the owner's personal pleasure or enjoyment. Merely rendering private property less desirable for certain purposes, or even causing personal annoyance or discomfort in its use, will not constitute the damage contemplated by the Constitution; but the property itself must suffer some diminution in substance, or be rendered intrinsically less valuable by reason of the public use. ..."'

In that case the court held that the homeowner, whose neighbor's property was taken for a freeway and whose own property was partially taken in order to provide a turn around area, could not recover severance damages for such general factors as noise, fumes and dust from the freeway. Other freeway noise cases are collected and thoroughly analyzed in People ex rel. Dept. Pub. Wks. v. Volunteers of America, 21 Cal.App.3d 111 [98 Cal.Rptr. 423, 51 A.L.R.3d 844].

As the trial court found, however, the noise from jet aircraft landing and taking off at the airport is a severe disturbance to the enjoyment and use of residential property in the area and is significantly greater than the noise emanating from a freeway. (See Comment, supra, fn. 5, 1 Pacific L.J. at pp. 591-592.) In comparing highway and airport noise for this purpose other courts have not treated them as the same. (Thornburg v. Port of Portland, supra, 376 P.2d 100, 106; compare City of Jacksonville v. Schumann (Fla.App. 1964) supra, 167 So.2d 95, 97 with Northcutt v. State Road Department (Fla.App. 1968) 209 So.2d 710, 711.)

A property owner may be required to bear without compensation incidental damages which are suffered alike by the public in general, but he is entitled to compensation for special and peculiar damage inflicted upon him. (Richards v. Washington Terminal Co. (1914) 233 U.S. 546, 557 [58 L.Ed. 1088, 1093, 34 S.Ct. 654]; Stoebuck, supra, fn. 5, 71 Dick. L.Rev. at pp. 213-214.) In Richards the Supreme Court held that a property owner near a railroad track could not recover for the soot and smoke damage suffered generally by all persons along the track, but was entitled to compensation for the special and peculiar damage to his property arising from the fact that an exhaust fan in a tunnel built by the railroad blew additional smoke on his property. (Id., at pp. 555-557 [58 L.Ed. at pp. 1092-1093].) Similarly in this case the construction and operation of the airport by the City causes special and peculiar damage to plaintiffs which is not shared in common by all persons who live along the airways. (United States v. Causby (1946) supra, 328 U.S. 256, 262 [90 L.Ed. 1206, 1210].) As stated by our Supreme Court in Loma Portal Civic Club v. American Airlines, Inc., supra, 61 Cal.2d 582, 584: "The problems [of noise and vibrations from jet aircraft] 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." (Italics added.) Plaintiffs' damages are not merely incidental and general. (See City of Oakland v. Nutter, supra, 13 Cal.App.3d 752, 770, 771.)

Drawing upon the above precedents we may state the rule in terms of California law as follows: The municipal owner and operator of an airport is liable for a taking or damaging of property when the owner of property in the vicinity of the airport can show a measurable reduction in market value resulting from the operation of the airport in such manner that the noise from aircraft using the airport causes a substantial interference with the use and enjoyment of the property, and the interference is sufficiently direct and sufficiently peculiar that the owner, if uncompensated, would pay more than his proper share to the public undertaking. (See Holtz v. Superior Court, 3 Cal.3d 296, 303 [90 Cal.Rptr. 345, 475 P.2d 441].) Whether the interference is substantial enough to meet this standard is a mixed question of fact and law for the trial judge to determine. (See Breidert v. Southern Pac. Co., 61 Cal.2d 659, 663-664 [39 Cal.Rptr. 903, 394 P.2d 719], second appeal (272 Cal.App.2d 398, 409 [77 Cal.Rptr. 262]; Riverside County Flood etc. Dist. v. Halman, 262 Cal.App.2d 510, 516-517 [69 Cal.Rptr. 1].)

The City contends, that plaintiffs may not recover unless they can show their damages resultfrom a physical invasion by the aircraft of the air space directly over plaintiffs' property. (Batten v. United States (10th Cir. 1962) supra, 306 F.2d 580, 583-585; Spater, supra, fn. 4, 63 Mich.L.Rev. at p. 1394.) We reject the Batten rule as inappropriate for California. We agree with the statement in Martin v. Port of Seattle, supra, 391 P.2d at page 545: "We are unable to accept the premise that recovery for interference with the use of land should depend upon anything as irrelevant as whether the wing tip of the aircraft passes through some fraction of an inch of the airspace directly above the plaintiff's land. The plaintiffs are not seeking recovery for a technical trespass, but for a combination of circumstances engendered by the nearby flights which interfere with the use and enjoyment of their land."

Another commentator has said: "Restricting recovery to damage caused by overflights makes no sense from a scientific standpoint, and postulates an arbitrary line between compensability and noncompensability that defies logical justification. Technical studies demonstrate that the noise-affected' area in the vicinity of airports is not confined to the land directly below aircraft approach and departure paths, but extends for a considerable distance to each side. ... Moreover, even relatively minor but consistent deviations from prescribed flight patterns may, under the overflight rule, arbitrarily enlarge or contract the group of property owners who may assert recoverable claims, despite substantially equivalent detrimental effects upon all." (Van Alstyne, supra, fn. 5, 16 U.C.L.A. L.Rev at p. 531.)