COUNSEL:

J. Kerwin Rooney, John Nolan, Breed, Robinson & Stewart and Ned Robinson for Plaintiff and Appellant.

Rogers, Vizzard & Tallett and John D. Rogers for Defendants and Respondents.

SIMS, J.

The City of Oakland, acting by and through its board of port commissioners, as condemner, has appealed from judgments rendered in favor of landowners in 17 actions which were consolidated for trial. The actions were brought to 'acquire an air easement in the air space above the surface of the hereinafter described real property for a public use, to wit, for airport purposes, in order to protect the approaches of said Airport from the encroachment of structures or vegetable life of such height or character as to interfere with or be hazardous to the use of said Airport, ...' (See Code Civ. Proc., s 1239.2. [FN1]) The real property over which the easement was sought is referred to as 'the Runway 9R clear zone area' and may be described as an area roughly 500 feet wide by 2,000 feet long running westerly and centered on a projection of the center line of a runway 9R, which is indicated as terminating 200 feet easterly of the clear zone area. The easement sought embraces all of the airspace above the '9R Clear Zone Surface,' which is depicted as a plane overlying the clear zone area rising from zero to 50 feet at its westerly extremity.

[FN1] Code of Civil Procedure section 1239.2 provides: 'Airspace above the surface of property or an air easement in such airspace may be acquired under this title by a county, city or airport district if such taking is necessary to protect the approaches of any airport from the encroachment of structures or vegetable life of such height or character as to interfere with or be hazardous to the use of such airport.' (Added Stats. 1945, ch. 1242, s 1, p. 2354.)

On November 6, 1967 the board of port commissioners passed an ordinance finding and determining that the public interest and necessity required the acquisition of air easements which were described in the same manner as has been quoted above from the complaints filed in the pending action. The complaints specifically point out: 'That said air easement hereby sought shall include the continuing right to clear and keep clear the above described real property of any and all obstructions. ...' [FN2] (Italics added.)

[FN2] The complete language reads: 'That said air easement hereby sought shall include the continuing right to clear and keep clear the above described real property of any and all obstructions infringing upon or extending into or above the Runway 9R clear zone approach surface of said Runway 9R clear zone area, ... and for said purpose to take action necessary to prevent the erection or growth of any building, structure, tree, vegetable life or other object into the air space above that portion of said Runway 9R clear zone approach surface which is directly over said real property, and to remove from such air space, or at the sole option of the plaintiff, as an alternative, to mark and light as obstructions to air navigation any and all buildings, structures, trees, vegetable life or other objects that may at any time project or extend above said Runway 9R clear zone approach surface.' This language appears to be phrased to comply with federal regulations governing allocations to local airports. (See 14 C.F.R. s 151.9, fn. 8 below.)

[FN3] Code of Civil Procedure section 1244 requires in pertinent part: 'The complaint must contain: ... 5. A description of each piece of land, or other property or interest in or to property, sought to be taken, and whether the same includes the whole or only a part of an entire parcel or tract or piece of property, or interest in or to property, but the nature or extent of the interests of the defendants in such land need not be set forth. ...'

[FN4] It was also specifically alleged, 'That the air easement sought to be acquired for the landing and taking off of aircraft in connection with the operation of terminals, hangars, flying field, signal lights, and other operations, as alleged in paragraph II of plaintiff's complaint, is a part of a larger parcel of property owned by defendants. ... 'That said defendants further allege that the value of the air easement being taken for airport purposes, including the landing and taking off of aircraft in connection with the operation of the flying field, terminal, hangars, and other uses alleged in said complaint has not at this time been determined with accuracy, and that the severance damages accruing to the remainder of the property, of which said easement is a part, by reason of the use of said air easement and the operations of plaintiff and use of said air space as described in the complaint for the alleged public uses and purposes therein enumerated, have not as yet been determined with particularity, and that defendants shall request leave of the court to amend their answer by inserting said amounts when the same have been ascertained.'

[FN5]Code of Civil Procedure section 1239.2 is set forth in footnote 1 above.

Section 1239.3 provides: 'Airspace above the surface of property or an air easement in such airspace may be acquired under this title by a county, city, port district, or airport district if such taking is necessary to provide an area in which excessive noise, vibration, discomfort, inconvenience or interference with the use and enjoyment of real property located adjacent to or in the vicinity of an airport and any reduction in the market value of real property by reason thereof will occur through the operation of aircraft to and from the airport.' (Added by Stats. 1965, ch. 1564, s 1, p. 3653.)

Section 1239.4 (added Stats. 1945, ch. 1242, s 2, p. 2354, and amended Stats. 1961, ch. 965, s 1, p. 2606) prescribes for the acquisition of land adjacent to or in the vicinity of an airport in fee, with or without the reservation to the former owner of a license for limited use and occupancy. It is not applicable to these cases.

[FN6] Code of Civil Procedure section 1248 provided and provides in pertinent part: 'The court, jury, or referee must hear such legal testimony as may be offered by any of the parties to the proceeding, and thereupon must ascertain and assess: [P] 1. The value of the property sought to be condemned, and all improvements thereon pertaining to the realty, and of each and every separate estate or interest therein; if it consists of different parcels, the value of each parcel and each estate or interest therein shall be separately assessed; [P] 2. If the property sought to be condemned constitutes only a part of a larger parcel, the damages which will accrue to the portion not sought to be condemned, by reason of its severance from the portion sought to be condemned, and the construction of the improvement in the manner proposed by the plaintiff; ... [P] 7. As far as practicable, compensation must be assessed for each source of damages separately.'

It was agreed that there were no special benefits to the properties involved. (Cf. s 1248, subd. 3.)

At the outset of the trial the jury were instructed to determine the fair market value of the property taken - the easement - and the severance damages. Similar instructions were given before the case was submitted to the jury for decision. At that time the court also read the jurors the provisions of sections 1239.2 and 1239.3 of the Code of Civil Procedure (see fns. 1 and 5 above). The jury was further instructed, 'An owner whose land is being condemned in part may not recover damages in the condemnation action to the remainder of his land caused by the manner in which the facility is to be operated on the lands of others. The detriment for which he may recover compensation is that which will result from the operation of the facility on his land alone.'

The extent of a landowner's interest in the airspace over his land and the extent to which he is entitled to be compensated for the use of that airspace for overflights, including take-offs and landings, has been the subject of considerable litigation and legislation. [FN7] For the purposes of this case it may be assumed as established by federal [FN8] and state law [FN9] that there is a public right of freedom of transit through the navigable airspace of the United States.

[FN7] The general principles and pertinent precedents are collected in the following commentaries, among others: Van Alstyne, Intangible Detriment (1968) 16 U.C.L.A.L.Rev. L.Rev. 491; Part III, 491, Noise Damage from the Operation of Aircraft, pp. 523-543; Alekshun, Aircraft Noise Law: A Technical Perspective (1969) 55 A.B.A. J. 740, 740-741; Baxter, op. cit., fn. 6 above, 21 Stan. L.Rev. 1, 47-53; Seago, The Airport Noise Problem and Airport Zoning (1968) 28 Md. L.Rev. 120, 120-124; Bohannon, Airport Easements (1968) 54 Va. L.Rev. 355, 355-363; Sackman, Air Rights - A Developing Prospect (1968) Ninth Institute on Eminent Domain, Southwestern Legal Foundation, p. 1; Note, Airplane Noise (1965) 65 Colum. L.Rev. 1428; Note, Airplane Noise (1961) 74 Harv. L.Rev. 1581; Harvey, Landowners' Rights in the Air Age (1958) 56 Mich. L.Rev. 1313; Nichols, Eminent Domain (rev. 3d ed. 1963) s 5.781, pp. 204-218; and 1 Rest.2d Torts s 159, subd. (2) and coms. g-m pp. 282, 284. The annual report, December 1969, Cal.Law Revision Com. (p. 93), indicates that the subject of liability in inverse condemnation for aircraft noise damage is under active study.

[FN8] The federal law provides: 'There is recognized and declared to exist in behalf of any citizen of the United States a public right of freedom of transit through the navigable airspace of the United States.' (49 U.S.C. s 1304.) ''Navigable airspace' means airspace above the minimum altitudes of flight prescribed by regulations issued under this chapter, and shall include airspace needed to insure safety in take-off and landing of aircraft.' (49 U.S.C. s 1301, subd. (24). See also, Regulations of the Federal Aviation Administration, Department of Transportation, subchapter A ['Definitions'], part 1 ['Definitions and abbreviations'], s 1.1; C.F.R. tit. 14, ch. 1, s 1.1.) The regulations issued under the law governing the federal aviation program (see 49 U.S.C. s 1324, subd. (a), s 1348, subd. (c), and s 1354, subd. (a)) now provide in part, 'Except when necessary for take-off or landing, no person may operate an aircraft below the following altitudes: ... (b) Over congested areas ... 1,000 feet ... (c) Over other than congested areas ... 500 feet. ...' (Regulations of the Federal Aviation Administration, Department of Transportation, subchapter F ['Air Traffic and General Operation Rules'], part 91 ['General Operating and Flight Rules'] s 91.79 ['Minimum safe altitudes, general']; 14 C.F.R. ch. 1, s 91.79 [formerly s 60.17].)

The same regulations define a 'clearway' as an ascending plane from the end of runway 'above which no object or any terrain protrudes.' (Id., s 1.1.) In subchapter E, dealing with 'Airspace,' part C sets up 'Obstruction Standards.' Section 77.27 establishes 'Civil Airport imaginary surfaces related to runways.' Subdivisions (b) and (c) establish an 'approach surface' for instrument and noninstrument landing system runways respectively. The former refers to 'a slope of 50 to 1 for a horizontal distance of 10,000 feet,' and 'a slope of 40 to 1 for an additional 40,000 feet.' In subchapter I, dealing with 'Airports,' the part dealing with 'Federal Aid to Airports' sets up 'General Requirements' for federal aid. Included in these requirements is a provision for 'Runway Clear Zones' which are defined as that portion of the 'area at ground level which ... [extends to a point] ... directly below each approach surface slope ... where the slope reaches a height of 50 feet above the elevation of the runway or 50 feet above the terrain at the outer extremity of the clear zone, whichever distance is shorter.' It is required that the airport owner or operator have 'an easement (or a covenant running with the land) giving it enough control to rid the clear zone of all obstructions ... and to prevent the creation of future obstructions; ...' (Id., s 151.9.)

[FN9] The California Public Utilities Code provides as follows:

Section 21401. 'Sovereignty in the space above the land and waters of this state rests in the state, except where granted to and assumed by the United States pursuant to a constitutional grant from the people of the state. [P] The operation of aircraft in such space is a privilege subject to the laws of this state.'

Section 21402. 'The ownership of the space above the land and waters of this State is vested in the several owners of the surface beneath, subject to the right of flight described in Section 21403. No use shall be made of such airspace which would interfere with such right of flight; provided, that any use of property in conformity with an original zone of approach of an airport shall not be rendered unlawful by reason of a change in such zone of approach.'

Section 21403 provides in part as follows: '(a) Flight in aircraft over the land and waters of this state is lawful, unless at altitudes below those prescribed by federal authority, or unless so conducted as to be imminently dangerous to persons or property lawfully on the land or water beneath. ... (c) The right of flight in aircraft includes the right of safe access to public airports, which includes the right of flight within the zone of approach of any public airport without restriction or hazard. The zone of approach of an airport shall conform to the specifications of Part 77 of the Federal Aviation Regulations of the Federal Aviation Administration, Department of Transportation.' The text of section 21402, and that of subdivision (c) of section 21403, as it read prior to a 1968 amendment which changed the designation of the citation of the applicable federal regulation, were read to the jury.