Plaintiffs' second count asserted liability predicated on a nuisance theory. Defendant claimed at pretrial that plaintiffs had failed to state a cause of action for nuisance. At an in-chambers discussion immediately prior to trial, defendant argued that the count was barred by the rule of governmental immunity provided in Government Code section 815. A ruling was reserved on the issue until after trial and then, concluding that section 815 precluded government liability for nuisance, the court dismissed the nuisance action for failing to state a cause of action.

By treading in the murky waters of governmental tort immunity the parties immerse us once again in an aspect of the law described a half century ago as "one of the mysteries of legal evolution." (Borchard, Governmental Responsibility in Tort (1924) 34 Yale L.J. 1, 4.) Traditionally in this state a municipality was held liable for creating or maintaining a nuisance even though engaged in a governmental activity. (See, e.g., Phillips v. City of Pasadena (1945) 27 Cal.2d 104, 106 [162 P.2d 625], and cases cited therein; see also Muskopf v. Corning Hospital Dist. (1961) 55 Cal.2d 211, 219 [11 Cal.Rptr. 89, 359 P.2d 457].)

In more recent times, however, both the courts and the Legislature created a multitude of exceptions to the general rule of immunity in some areas and to the general rule of liability in others. In Muskopf v. Corning Hospital Dist., supra, 55 Cal.2d 211, 216, we recognized that the distinctions were "without rational basis" and operated "so illogically as to cause serious inequality." Accordingly we held in Muskopf "that the doctrine of governmental immunity for torts for which its agents are liable has no place in our law" (id. at p. 221) and "must be discarded as mistaken and unjust" (id. at p. 213). (See also Lipman v. Brisbane Elementary Sch. Dist. (1961) 55 Cal.2d 224 [11 Cal.Rptr. 97, 359 P.2d 465].) [FN7]

[FN 7] The Law Revision Commission in its recommendations to the Legislature on the subject of governmental immunity characterized the need for comprehensive legislation in the area as follows: "Prior to the Muskopf and Lipman decisions, extensive legislation relating to the subject of governmental liability or immunity had been enacted. This legislation expresses a variety of conflicting policies. Some statutes create broad immunities for certain entities and others create wide areas of liability. Some apply to many public entities and others apply to but one. In some cases, statutes expressing conflicting policies overlap. Even where statutes impose liability on public entities, they do so in a variety of inconsistent ways." (Recommendation Relating to Sovereign Immunity, 4 Cal. Law Revision Com. Rep. (Jan. 1963) pp. 803, 807.)

In section 815 of the Government Code, the Legislature declared the general principle of governmental immunity envisioned by the comprehensive 1963 act: "Except as otherwise provided by statute: (a) A public entity is not liable for an injury, whether such injury arises out of an act or omission of the public entity or a public employee or any other person."

Thus the Legislature erected as its policy cornerstone a bar against governmental liability "except as otherwise provided by statute." The Senate committee comments make clear that the Tort Claims Act itself does not provide for governmental liability for nuisance: "[There] is no section in this statute declaring that public entities are liable for nuisance, even though the California courts have previously held that public entities are subject to such liability even in the absence of statute. Under this statute the right to recover damages for nuisance will have to be established under the provisions relating to dangerous conditions of public property or under some other statute that may be applicable to the situation." (Legislative Committee Comment - Sen., Gov. Code, s. 815; italics added.) Therefore liability, if it exists, must be authorized by other statutory provision.

Prior to the 1963 act, several cases emphasized that section 3479 of the Civil Code provided a viable statutory basis for governmental liability and avoided a defense of sovereign immunity. [FN 8] Thus, in Vater v. County of Glenn (1958) 49 Cal.2d 815, 818 [323 P.2d 85], we repeated the pre- Muskopf "general rule" that "in the absence of a statutory or constitutional provision to the contrary, the state and its agencies are immune from liability for tort in the discharge of governmental duties and activities." The plaintiff asserted alternative statutory bases of liability in sections 22725-22732 of the Water Code and section 3479 of the Civil Code. We concluded that except in particular circumstances the Water Code provisions were not designed to abrogate the rule of immunity, but with respect to section 3479 we held that the facts of the case did not constitute a nuisance within the meaning of the code. As the dissent aptly demonstrates, we recognized that under proper factual conditions, section 3479 would provide a statutory basis for governmental liability.

[FN 8] Section 3479 provides: "Anything which is injurious to health, or is indecent or offensive to the senses, or an obstruction to the free use of property, so as to interfere with the comfortable enjoyment of life or property, or unlawfully obstructs the free passage or use, in the customary manner, of any navigable lake, or river, bay, stream, canal, or basin, or any public park, square, street, or highway, is a nuisance." (49 Cal.2d at pp. 821-822.)

It therefore appears that with respect to nuisance the rule immediately prior to the enactment of the Tort Claims Act was consistent with that subsequently required by the act: to avoid the general rule of immunity, a suit for nuisance must find statutory support and such support may be furnished by section 3479. (See A Study Relating to Sovereign Immunity, 5 Cal. Law Revision Com. Rep. (Jan. 1963) pp. 1, 227.) "The fact that [the nuisance statutes] are general in language, and do not specifically refer to public entities, does not preclude their application to such entities, because generally worded code sections are applied to governmental bodies if no impairment of sovereign powers would result." (Van Alstyne, supra, s. 5.10 at p. 126; see also Flournoy v. State of California (1962) 57 Cal.2d 497, 498-499 [20 Cal.Rptr. 627, 370 P.2d 331].)

While neither party in the instant case has cited controlling authority holding that nuisance actions against public bodies are either precluded or permitted by operation of Government Code section 815, three opinions of the Court of Appeal have impliedly recognized the continued existence of such a cause of action.

In Burrows v. State of California (1968) 260 Cal.App.2d 29 [66 Cal.Rptr. 868] (hg. den.), the court was called upon to interpret an agreement particularly damaging to plaintiffs. There the court concluded that a clause stipulating the state's act was "not a nuisance" was "nothing but an erroneous legal conclusion which the trial court should not have accepted." (Id. at p. 34.) In Granone v. County of Los Angeles (1965) 231 Cal.App.2d 629 [42 Cal.Rptr. 34], the flooding of plaintiff's land resulted in crop destruction. The court affirmed recovery predicated on four grounds, including nuisance pursuant to Civil Code section 3479 but, as in Burrows, made no mention of the relevance of section 815. While the trial in Granone occurred prior to the effective date of the Tort Claims Act, the act is specifically made retroactive (Stats. 1963, ch. 1681, s. 45, at pp. 3288-3289) and accordingly the Court of Appeal in reviewing Granone in 1965 was bound to consider the mandate, if any, of section 815 as well as other provisions of the act. (See Carpenter v. Wabash Ry. Co. (1940) 309 U.S. 23, 27 [84 L.Ed. 558, 561-562, 60 S.Ct. 416]; Linkletter v. Walker (1965) 381 U.S. 618, 626-627 [14 L.Ed.2d 601, 606-607, 85 S.Ct. 1731].) [FN 9] Nevertheless, the court upheld a recovery based in part on a nuisance theory.

[FN 9] As Professor Van Alstyne has stated with respect to the retroactive nature of the Tort Claims Act: "[The] rule of full retroactivity ... has a variety of effects, including ... abrogation of previously accrued causes of action based on the Muskopf doctrine, both for injuries that accrued before the 1961 moratorium statute (effective September 15, 1961) and for those that accrued after that date ..." (Van Alstyne, supra, s. 11.2, at pp. 462-463; cf. Teall v. City of Cudahy, supra, 60 Cal.2d 431, 432 [34 Cal.Rptr. 869, 386 P.2d 493]; Thelander v. Superior Court (1962) 58 Cal.2d 811, 814 [26 Cal.Rptr. 643, 376 P.2d 571].)

Additional support for the conclusion that section 3479 of the Civil Code provides the statutory basis for nuisance actions as required by section 815 may be traced to more recent recommendations of the Law Revision Commission. It should be remembered that it was the commission's study on governmental immunity (A Study Relating to Sovereign Immunity, supra, 5 Cal. Law Revision Com. Rep. (Jan. 1963) p. 1) which spawned the Tort Claims Act of 1963. One year after the enactment, Professor Van Alstyne, the author of the commission's report, concluded that, notwithstanding the statement in the Senate comments that nuisance actions could be maintained pursuant to "some other statute that may be applicable to the situation" (Legislative Committee Comments - Sen., Gov. Code, s. 815), section 815 "was intended to eliminate any public entity liability for damages on the ground of common law nuisance." (Van Alstyne, supra, s. 5.10, at p. 126.)

Accordingly, in 1969 the commission proposed a series of amendments to the Tort Claims Act (Recommendation Relating to Sovereign Immunity, 9 Cal. Law Revision Com. Rep. (Sept. 1969) p. 803); to clarify what it conceded to be the existing uncertainty with respect to nuisance actions against public entities, the first recommendation was to specifically eliminate such liability. [FN 10]

[FN 10] The commission's textual recommendation was as follows: "To eliminate the existing uncertainty and to effectuate the Legislature's original intention, the Commission recommends that a new section - Section 815.8 -- be added to the Government Code expressly to eliminate liability for damages for nuisance under Part 3 (commencing with Section 3479) of Division 4 of the Civil Code. This section would eliminate liability for damages based on a theory of common law nuisance." (9 Cal. Law Revision Com. Rep. at p. 810.) The commission's proposed legislation on the subject read: "Section 815.8 is added to the Government Code, to read: 815.8 A public entity is not liable for damages under Part 3 (commencing with Section 3479) of Division 4 of the Civil Code." (Id. at p. 837.)

In view of the pervasive influence the commission has enjoyed in the field of governmental immunity, practically authoring both the 1963 act [FN 11] and the 1970 amendments, [FN 12] we must conclude that the Legislature, with due deliberation, decided to reject the commission's proposal to bar suits against public entities for nuisance. Consequently it is manifest that the Legislature intended to allow such causes of action if they could be tailored to meet the specifications of statutory provisions, such as section 3479 of the Civil Code.

[FN 11] See letter to the Governor from Commission Chairman Sato (Recommendation Relating to Sovereign Immunity, supra, 9 Cal. Law Revision Com. Rep. (Sept. 1969) p. 803; Van Alstyne, supra, s. 5.3, at p. 120; compare Legislative Committee Comments - Senate, Gov. Code, s. 815, with Recommendation Relating to Sovereign Immunity, supra, 4 Cal. Law Revision Com. Rep. (Jan. 1963) pp. 803, 837-838).

[FN 12] Compare Statutes 1970, chapter 1099, with Recommendation Relating to Sovereign Immunity, supra, 9 Cal. Law Revision Com. Rep. (Sept. 1969) pp. 803, 837.

[FN 13] See generally State of California (1970) Laws Relating to the Protection of Environmental Quality. The Legislature has specifically recognized the rising problem of airport noise and its effects on the quality of the environment: "The Legislature finds that ... (b) The proliferation of noise from transportation sources have [sic] led to the exposure of large sectors of the populace to an unacceptable degree of noise. (c) The anticipated rates of construction of new airports and extension of existing airports, construction of freeways and mass rapid transit lines, and the introduction into service of intraurban short takeoff and land and vertical takeoff and land aircraft operating at low cruising altitudes will rapidly escalate the urban noise problem unless systematic preventive measures are taken." (Gov. Code, s. 16000, Stats. 1968, ch. 1395; Stats. 1969, ch. 1042; see also Gov. Code, s. 16001, Stats. 1968, ch. 1395.) The foregoing statute was repealed in 1970 when related sections were added to the Public Utilities Code (Stats. 1970, ch. 346).

As part of its program to combat airport noise pollution, the Legislature passed several amendments to the Public Utilities Code (Stats. 1969, chs. 712, 1585; Stats. 1970, chs. 912, 1293). Section 21669 of that code states: "The department [Department of Aeronautics] shall adopt noise standards governing the operation of aircraft and aircraft engines for airports operating under a valid permit issued by the department to an extent not prohibited by federal law. The standards shall be based upon the level of noise acceptable to a reasonable person residing in the vicinity of the airport." Section 21669.4 provides, in part: "The violation of the noise standards by any aircraft shall be deemed a misdemeanor and the operator thereof shall be punished by a fine of one thousand dollars ($1,000) for each infraction." (See also Pub. Util. Code, ss. 21666, 21669.2, 21669.3.)

For recent enactments on the subject of noise generally, see Public Resources Code section 21001, subd. (b); Streets and Highways Code sections 75.7, 216; Vehicle Code sections 23130, 27001, 27150, 27151, 27160; and Harbors and Navigation Code sections 654, 668.

Two code provisions deal with abatement of airports as nuisances and condemnation of airspace by nuisance. (Code Civ. Proc., ss. 731b, 1239.3.) Neither, however, provides for a monetary recovery for damages.

[FN 14] Causes of action for nuisance are often included in pollution suits. (See, e.g., Reynolds Metals Co. v. Martin (9th Cir. 1964) 337 F.2d 780.) In general, nuisance provides a proper ground for recovery for noise disturbance. (See Kramon, Noise Control: Traditional Remedies and a Proposal for Federal Action (1969) supra, 7 Harv. J. Legis. 533, 538-544; see also Malley, The Supersonic Transport's Sonic Boom Costs: A Common Law Approach (1969) supra, 37 Geo.Wash.L.Rev. 683; Alekshun, Aircraft Noise Law: A Technical Perspective (1969) 55 A.B.A.J. 740; Note, Jet Noise in Airport Areas: A National Solution Required (1967) 51 Minn.L.Rev. 1087.)

[FN 15] We do not reach the question of whether appellants are entitled to show property damage caused by conduct of defendant which purportedly constitutes a nuisance or by defendant's alleged negligence or zoning violations (see discussion, infra). Of course, to the extent any claim for property damages under counts II, III and IV is identical to those damages which were sought in the inverse condemnation action, such claim would be barred by the trial court's finding of no property damage under that count.

[FN 16] The trial court concluded that as a matter of law the airport was not a nuisance because it was maintained under the authority of several statutes. Section 3482 of the Civil Code provides: "Nothing which is done or maintained under the express authority of a statute can be deemed a nuisance." In Hassell v. San Francisco (1938) 11 Cal.2d 168 [78 P.2d 1021], appellant contended that, by virtue of section 3482, the construction of a public convenience station above ground could not constitute a nuisance. In rejecting that argument, we interpreted the section narrowly, stating (at p. 171): "'A statutory sanction cannot be pleaded in justification of acts which by the general rules of law constitute a nuisance, unless the acts complained of are authorized by the express terms of the statute under which the justification is made, or by the plainest and most necessary implication from the powers expressly conferred, so that it can be fairly stated that the legislature contemplated the doing of the very act which occasions the injury."' It would appear that section 50470 of the Government Code and sections 21002, 21662 and 21667 of the Public Utilities Code, relied upon by the trial judge, are too general in nature to constitute the authority envisioned by section 3482 under the interpretation in Hassell. In any event, this issue was neither pleaded nor argued at trial.