It is unnecessary to determine in this case whether that right is absolute over designated altitudes and may be enjoyed without compensation to the owner of the underlying land regardless of the circumstances attending the enjoyment of that right. [FN10] It has been determined that compensation must be made to the subjacent landowner [FN11] when the use of the airspace over his land for take-offs or landings or both 'are so low and so frequent as to be a direct and immediate interference with the enjoyment and use of the land,' which in turn results in diminution in the value of the property. (United States v. Causby (1946) 328 U.S. 256, 266-267 [90 L.Ed. 1206, 1213-1214, 66 S.Ct. 1062]. See also, Griggs v. Allegheny County (1962) 369 U.S. 84, 88-89 [7 L.Ed.2d 585, 588-589, 82 S.Ct. 531]; Loma Portal Civic Club v. American Airlines, Inc. (1964) 61 Cal.2d 582, 594 [39 Cal.Rptr. 708, 394 P.2d 548]; and Sneed v. County of Riverside (1963) 218 Cal.App.2d 205, 209-212 [32 Cal.Rptr. 318].) [FN12]

[FN10] It appears that the overflights in this case are between the lower limit of the general navigable airspace, and the upper limit of the usable airspace left to the property owners after the taking of the airspace easement. (Cf. Baxter, The SST: From Watts to Harlem in Two Hours (1968) 21 Stan. L.Rev. 1, 38-57.)

[FN11] All of the properties involved are subjacent to the airspace easement sought. They are also all subject to overflights. Therefore, there is no need to determine whether there can be a taking of land by consequential damages suffered without an overflight. (Cf. Johnson v. City of Greeneville (1968) 222 Tenn. 260 [435 S.W.2d 476], City of Jacksonville v. Schumann (Fla.App. 1964) 167 So.2d 95, cert. den. (Fla. 1965) 172 So.2d 597, followed on merits in City of Jacksonville v. Schumann (Fla.App. 1967) 199 So.2d 727, 729, cert. den. (1968) 390 U.S. 981 [19 L.Ed.2d 1278, 88 S.Ct. 1101]; 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]; and Thornburg v. Port of Portland (1962) 233 Ore. 178 [376 P.2d 100], with Ferguson v. City of Keene (1968) 108 N.H. 409 [238 A.2d 1]; Louisville & Jefferson County Air Bd. v. Porter (Ky. 1965) 397 S.W.2d 146; and Batten v. United States (10th Cir. 1962) 306 F.2d 580, cert. den. (1962) 371 U.S. 955 [9 L.Ed.2d 502, 83 S.Ct. 506], reh. den. 372 U.S. 925 [9 L.Ed.2d 731, 83 S.Ct. 718].) See also, Spater, Noise and the Law (1965) 63 Mich.L.Rev. 1373, and commentaries listed fn. 7 above, passim.

[FN12] The addition and incorporation in the federal definition of 'navigable airspace' (see 49 U.S.C. s 1301, subd. 24) of the phrase 'and shall include airspace needed to insure safety in take-off and landing of aircraft' did not create a right to use such airspace without compensation. (See, Griggs v. Allegheny County (1962) 369 U.S. 84, 88-89 [7 L.Ed.2d 585, 588-589, 82 S.Ct. 531]. See, Note, op. cit., fn. 7, above, 74 Harv. L.Rev. 1581, 1593-1596; Comment, Air Law -- the Federal Aviation Act of 1958 (1959) 57 Mich.L.Rev. 1214, 1225-1226.)

[FN13] In United States v. Brondum (5th Cir. 1959) 272 F.2d 642, the court observed with respect to the latter, '... the right to cut trees and natural growth to a prescribed height and to remove man-made obstructions above a prescribed height ... is sometimes referred to as a 'flight obstruction easement.' Graphically and accurately, Judge Estes describes the easement as a 'ceiling.' The purpose of the ceiling is to increase the margin of safety for flying by assuring that the glide zone will be free from natural growth or man-made obstructions and the pilot's vision unobscured above a designated altitude. [P] A navigation easement may or may not contain provisions dealing with obstructions, but, unlike a clearance easement, in express terms it permits free flights over the land in question. It provides not just for flights in the air as a public highway -- in that sense no easement would be necessary; it provides for flights that may be so low and so frequent as to amount to a taking of the property.' (272 F.2d at pp. 644-645, fns. omitted.)

'The necessity for appropriating private property for public use is not a judicial question. This power resides in the legislature, and may either be exercised by the legislature or delegated by it to public officers.' (Rindge Co. v. Los Angeles (1923) 262 U.S. 700, 709 [67 L.Ed. 1186, 1193, 43 S.Ct. 689]. See also, People v. Chevalier (1959) 52 Cal.2d 299, 304-305 [340 P.2d 598]; and Code Civ. Proc., s 1241, subd. 2.)

It is generally recognized that the foregoing principle precludes a court from compelling a public body to condemn property. In United States v. Brondum, supra, the court stated, 'The United States Government has complete discretion in determining whether to take a clearance easement or to take an avigation easement, ... The district court lacked jurisdiction to compel the United States to take an avigation easement.' (272 F.2d at p. 646. See also, First National Bank of Brunswick v. United States (5 Cir. 1965) 350 F.2d 606, 608; 2,953.15 Acres of Land, etc. v. United States (5th Cir. 1965) 350 F.2d 356, 360, fn 7; United States v. 452.13 Acres of Land, etc. (N.D.Fla. 1962) 207 F.Supp. 323, 324; and City of Charlotte v. Spratt, supra, 263 N.C. 656, 662 [140 S.E.2d 341, 346-347].) From the foregoing it may be concluded that the trial court erred in determining that the provisions of section 1239.3 were applicable to the case, and in reading those provisions to the jury. It does not necessarily follow, however, that the court erred in also ruling and in instructing the jury that the defendants were entitled to severance damages, and that the interference and inconvenience suffered by the remainder of the property by reason of the use of the airspace taken should be considered in connection with those damages. The latter rulings being correct, there was no prejudice, in the sense of a miscarriage of justice (see Cal.Const., art. VI, s 13) by reason of the former errors.

The California Constitution provides, 'Private property shall not be taken or damaged for public use without just compensation ....' (Art. I, s 14; and see, Eachus v. Los Angeles etc. Ry. Co. (1894) 103 Cal. 614, 616 [37 P. 750].) The code of Civil Procedure (s 1248, fn. 6 above) expressly provides for a determination of 'the damages which will accrue to the portion not sought to be condemned, by reason of ... the construction of the improvement in the manner proposed by the plaintiff. ...' In People ex rel. Dept. Pub. Wks. v. Silveira (1965) 236 Cal.App.2d 604 [46 Cal.Rptr. 260], this court stated, 'A condemnation award must once and for all fix the damages, present and prospective, that will accrue reasonably from the construction of the improvement and in this connection must consider the most injurious use of the property reasonably possible. [Citation.]' (236 Cal.App.2d at pp. 621-622. See also, McDougald v. Southern Pacific R.R. Co. (1912) 162 Cal. 1, 3 [120 P. 766]; and People ex rel. Dept. Pub. Wks. v. Lundy (1965) 238 Cal.App.2d 354, 361-362 [47 Cal.Rptr. 694].)

In this case the city, although ostensibly proceeding under the terms of section 1239.2 of the Code of Civil Procedure (see fn. 1 above), did not limit the proposed easement to a clearance or obstruction easement. The language of the complaint refers to 'an air easement ... for airport purposes ... to protect the approaches of said Airport.' The easement is not limited to the 'right to clear and keep clear the above described real property of any and all obstructions.' Such a right is merely designated as being included in what may be deemed to be a broader easement. For all practical purposes the city was seeking to exclude the landowners from any enjoyment of the airspace lying over the runway 9R clear zone approach surface and below the navigable public domain. (See, Hillsborough County Aviation Authority v. Benitez (Fla.App. 1967) 200 So.2d 194, 199.) (6) In alleging that the air easement was for airport purposes and that such purposes included the landing and taking off of aircraft, the city included rather than excluded such use of the airspace involved. It brought itself within the broad provisions of subdivision 20 of section 1238 of the Code of Civil Procedure. The landowners by their answers specifically adverted to the use of the airspace in question for the landing and taking off of aircraft. The evidence demonstrated that such use existed in fact. Within principles discussed below (part II), the landowners were entitled to show the use to be made of the property taken, and the effect of such use on the fair market value of the property remaining to them. (See, Pierpont Inn, Inc. v. State of California (1969) 70 Cal.2d 282, 294-295 [74 Cal.Rptr. 521, 449 P.2d 737]; People v. Symons (1960) 54 Cal.2d 855, 859-860 [9 Cal.Rptr. 363, 357 P.2d 451]; City of Pleasant Hill v. First Baptist Church (1969) 1 Cal.App.3d 384, 435 [82 Cal.Rptr. 1]; Pacific Gas & Elec. Co. v. Hufford (1957) 49 Cal.2d 545, 553-554 [319 P.2d 1033]; San Bernardino County Flood Control Dist. v. Sweet (1967) 255 Cal.App.2d 889, 904 [63 Cal.Rptr. 640]; County of Santa Clara v. Curtner (1966) 245 Cal.App.2d 730, 743 [54 Cal.Rptr. 257]; People ex rel. Dept. Pub. Wks. v. Silveira, supra, 236 Cal.App.2d 604, 617; and People v. O'Connor (1939) 31 Cal.App.2d 157, 159 [87 P.2d 702].)

A comparison of section 1239.2 (fn. 1 above) with section 1239.3 (fn. 5 above) of the Code of Civil Procedure does not require a contrary conclusion. The former section was adopted in 1945. It may be assumed that the ordinary rules governing the assessment of damages in eminent domain applied, particularly those referred to above in connection with severance damages.

The addition of section 1239.3 in 1965 was not a restriction on, or an attempt to segregate and carve out a portion of the power conferred by section 1239.2, nor can it be construed as an attempt to segregate the damages which otherwise could be recovered in an action brought under subdivision 20 of section 1238 or under section 1239.2. (See, United States v. Smith (5th Cir. 1962) 307 F.2d 49, 58.) Section 1239.3 purports to enlarge the powers of condemnation beyond property physically used for an airport (s 1238, subd. 20; and see, City of Fresno v. Hedstrom (1951) 103 Cal.App.2d 453, 456 [229 P.2d 809]), and beyond airspace necessary to protect the approaches to an airport (which by definition implies airspace overlying property which is subject to overflights by planes landing or taking off) to airspace overlying any 'real property located adjacent to or in the vicinity of an airport.' Manifestly this section was adopted to permit appropriate governmental bodies to take the initiative in securing rights which might otherwise be the subject of actions for inverse condemnation under the principle that interference with the use and enjoyment of such property by excessive noise, vibration, discomfort, and inconvenience through the operation of aircraft to and from an airport may be compensable even where the property involved is not subject to direct overflights. (See, Van Alstyne, op. cit., fn. 7, 16 U.C.L.A.L.Rev. 491, 528-535, particularly p. 532, fn. 165 and p. 536, fn. 185; and cases collected fn. 11 above.) 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.

Nor is the principle enunciated in United States v. Brondum, supra, controlling in this case. In that case the court specifically pointed out, 'There is no mention of the right to fly over the land [in the description of the easement]' (272 F.2d at p. 644), and, more specifically, 'The physical location of the Brondums' property is such that the Government would have no need for an avigation easement. The property is located 735 feet opposite the midway point of the runway. There is no reason for planes to fly over the Brondums' land, unless an emergency should make such a flight unavoidable. Further, planes may never fly at such low altitudes as to interfere with the use of the property.' (Id., p. 645.) In this case, on the other hand, the description of the air easement sought is broad enough to include all the operations of the airport, and the evidence shows that use of the airspace for take-offs and landings was not only contemplated but actually effected. In United States v. Smith, supra, the majority rejected the contention advanced by the dissenting judge (307 F.2d 49, 60) that Brondum could be applied to prevent the landowner from showing that the value of his remaining property was depreciated by the flooding of an access road which was purportedly the subject of other proceedings to which the landowner was not a party. The majority stated, 'By adopting the expedient of separating the two claims of separate interests in the same land into two separate civil actions, the appellant could not change the essential character of what was being done and could not destroy appellee's claim to full and just compensation.' (Id., at p. 58.) A concurring opinion expressly distinguishes Brondum on the same grounds that have been set forth above (id., pp. 59-60. See also, 2,953.15 Acres of Land, etc. v. United States, supra, 350 F.2d 356, 360-361). Other cases have recognized that the element of operation of aircraft with relation to the easement or property sought to be taken should be considered in determining severance damages. (See, Johnson v. Airport Authority of City of Omaha (1962) 173 Neb. 801, 806-808 [115 N.W.2d 426, 430-431]; and Bowling Green-Warren County Airport Bd. v. Long (Ky. 1962) 364 S.W.2d 167, 170-171.) The question of what damages are cognizable is discussed below (part II).

Finally, the city asserts that the landowners' claims for damage resulting to their remaining land cannot be asserted in the absence of compliance with statutes which would govern a claim for damages for inverse condemnation. (See, Gov. Code, s 900 et seq., particularly ss 905 and 945.4; and Dorow v. Santa Clara County flood Control Dist. (1970) 4 Cal.App.3d 389, 391 [84 Cal.Rptr. 518].) In United States v. 452.13 Acres of Land, etc., supra, the court in applying Brondum granted a new trial because the jury had been permitted to consider the damages attendant to the taking of an avigation easement, as well as those attendant to the flight clearance easement. The court noted that for the latter the landowner would have to bring a separate action under legislation permitting claims and actions against the federal government (207 F.Supp. at pp. 324-325). In that case, however, it was clear that the government only sought a flight clearance easement in its declaration of taking. Here, as has been pointed out, the issues are broad enough to embrace the entire airspace above the clear zone surface, and its general use for take-offs and landings. Since the question is one of severance damages, no claim is necessary. The situation is governed by City of Fresno v. Hedstrom, supra, where the court stated, 'Plaintiff next argues that the failure of the defendants to file a claim against the city of Fresno is a complete bar against the recovery of the damages claimed by the defendants. However, the city did not set up this defense in the pleadings or at the trial and cannot now raise it for the first time upon appeal. Our attention has not been directed to any authority requiring the filing of a claim against a city in an action in condemnation brought by it. The filing of such a claim is not necessary.' (103 Cal.App.2d 453, 460-461. Approved, Wilson v. Beville (1957) 47 Cal.2d 852, 861 [306 P.2d 789].)

In short, the city's arguments in support of its contention that it should be permitted to avoid liability for severance damages in this action, and to force the landowners to bring an independent action are rejected.

The majority of the homes involved here were constructed and sold in 1963 and 1964 at an average price of $24,000, and were part of a tract development known as 'Palm Homes.' Between 1964 and 1966, the noise of planes from the nearby airport was not disturbing, since the use of runway 9R27L (to the north of the tract) was confined to light planes.

Shortly thereafter, however, the use of jet aircraft and the development of a clear zone at the end of the runway were necessitated by a changeover from piston and turboprop airplanes to jet aircraft and because of the increase in passenger traffic and in the volume of air travel. In 1968, when this action was tried, the ratio of jets to piston airplanes was four to one. Passenger traffic at the Oakland Airport, between 1962 and 1967, had increased 500 percent, and was steadily increasing every year. Passenger and air freight travel were projected to increase even more as time went on.

The planes were becoming larger and noisier, and there was evidence that the constantly increasing and continuing flights of jet aircraft at low levels, over the homes of defendants, caused excessive noise and vibrations, created fear for the personal safety of the occupants, and prevented normal and reasonable enjoyment of the homes. Testimony indicated that the planes flying over the homes were large and flew at extremely high rates of speed, and often at elevations between 100 and 300 feet above the ground, as they approached the runway.

The city, through its appraisal witness, placed the reduction in value to the individual properties at 15 percent of their total value. The landowners' witness was of the opinion that the properties would not be salable to anyone who was informed about the area, but placed the damages at no less than $10,000 for each property (the verdict itself indicates a depreciation for each property of approximately 25 percent).

'The constitution does not ... 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. The erection of a county jail or a county hospital may impair the comfort or pleasure of the residents in that vicinity, and to that extent render the property less desirable, and even less salable, but this is not an injury to the property itself so much as an influence affecting its use for certain purposes; but whenever the enjoyment by the plaintiff of some right in reference to his property is interfered with, and thereby the property itself is made intrinsically less valuable, he has suffered a damage for which he is entitled to compensation.' (Eachus v. Los Angeles etc. Ry. Co., supra, 103 Cal. 614, 617. See also, People v. Symons, supra, 54 Cal.2d 855, 858-859; People v. Ricciardi (1943) 23 Cal.2d 390, 395 [144 P.2d 799]; Lombardy v. Peter Kiewit Sons' Co. (1968) 266 Cal.App.2d 599, 602-603 [72 Cal.Rptr. 240] app. dism., 394 U.S. 813 [22 L.Ed.2d 748, 89 S.Ct. 1486]; People ex rel. Dept. of Pub. Wks. v. Presley (1966) 239 Cal.App.2d 309, 312 [48 Cal.Rptr. 672]; People ex rel. Dept. Pub. Wks. v. Lundy, supra, 238 Cal.App.2d 354, 359; City of Fresno v. Hedstrom, supra, 103 Cal.App.2d 453, 457; and Arnerich v. Almaden Vineyards Corp. (1942) 52 Cal.App.2d 265, 272 [126 P.2d 121].) [FN14]

[FN14] The distinction between consequential damages which must be suffered without compensation and the right to compensation for damages which so diminish the utility and value of land as to constitute a taking is recognized in the Airport Approaches Zoning Law (Gov. Code, s 50485 et seq. See particularly, ss 50485.2 and 50485.15. Cf. Morse v. County of San Luis Obispo (1967) 247 Cal.App.2d 600, 603-604 [55 Cal.Rptr. 710], with Peacock v. County of Sacramento (1969) 271 Cal.App.2d 845, 856-863 [77 Cal.Rptr. 391]; and Sneed v. County of Riverside (1963) 218 Cal.App.2d 205, 207-209 [32 Cal.Rptr. 318]; and see, Seago, op. cit., fn. 7 above, 28 Md.L.Rev. 120, 124-135; Note, Airport Zoning as a Height Restriction (1962) 13 Hastings L.J. 397; Note, Airplane Noise (1961) 74 Harv. L.Rev. 1581, 1589-1590.) For attempts to regulate noise or activity cf. American Airlines, Inc. v. Town of Hempstead (2d Cir. 1968) 398 F.2d 369, with Stagg v. Municipal Court (1969) 2 Cal.App.3d 318 [82 Cal.Rptr. 578].)