City of Oakland v. Nutter (concluded)


The city acknowledges that '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' may cause a reduction in the market value of such real property, which in certain cases may give rise to an action for compensation. (See, Code Civ. Proc., s 1239.3, fn. 5, above; Griggs v. Allegheny County, supra, 369 U.S. 84, 88; United states v. Causby, supra, 328 U.S. 256, 261-263 [90 L.Ed. 1206, 1210-1211]; A.J. Hodges Industries, Inc. v. United States (1966) 355 F.2d 592, 594 [174 Ct.Cl. 259]; Loma Portal Civic Club v. American Airlines, Inc. (1964) 61 Cal.2d 582, 594 [39 Cal.Rptr. 708, 394 P.2d 548]; and commentaries fn. 1 above.) Nevertheless, it contends that such damages cannot be shown in this action, because a decrease in the value of property from noise, fumes, dust, increased traffic and similar factors is not compensable when they occur on property other than the property taken, when they are shared by all property owners generally, when they are occasioned by activities not proximately caused by the taking in question, or when they have antedated the current taking.

The principal cases relied upon by the city, People v. Symons, supra, 54 Cal.2d 855, and City of Berkeley v. Von Adelung (1963) 214 Cal.App.2d 791 [29 Cal.Rptr. 802], each stand for the proposition that the landowner 'cannot recover for those damages caused by the manner in which the project is to be constructed or operated on the lands of others, but is limited to damages caused by the operation of the improvement on his land alone [citations].' (214 Cal.App.2d at p. 793; 54 Cal.2d at p. 861; and see, Lombardy v. Peter Kiewit Sons' Co., supra, 266 Cal.App.2d 599, 603.) In City of Berkeley v. Von Adelung, supra, it was also noted, '... the asserted injury [tripled traffic with resultant increase in fumes and traffic noises] is not compensable because it is general to all property owners in the neighborhood, and not special to defendant [citations].' (214 Cal.App.2d at p. 793; and see, People ex rel. Dept. of Pub. Wks. v. Presley, supra, 239 Cal.App.2d 309, 317.) It is unnecessary to determine in this case whether the foregoing precedents have been rendered inapplicable to the noise and disturbance created by low flying airplanes by virtue of the provisions of section 1239.3 of the Code of Civil Procedure. (See fn. 5, and discussion of section in text above.) In this case the record shows that such flights are made through the airspace above the landowners' property which has been condemned in this action. The jury was expressly 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.' [FN15]

[FN15] The instructions follow forms of general application and cannot be said to be models for a case of this nature. No attack has been made on the instructions per se, as distinguished from the rulings discussed in this opinion. Nevertheless, an examination of the instructions given, as well as those offered and refused, reveals a failure to address them to the specific format of this case. Under similar circumstances the court in City of Fresno v. Hedstrom (1951) 103 Cal.App.2d 453 [229 P.2d 809], observed, 'If the plaintiff desired to further clarify the issues in this respect, it was incumbent upon it to submit and request such instruction and if, as is contended by the plaintiff, the court should have submitted instructions as to the laws and regulations applicable to aerial navigation, no error resulted for the same reason. [Citation.]' (103 Cal.App.2d at p. 460.)
Some suggestion that such consequential effects may not be considered even where they relate to property actually taken may be gleaned from People ex rel. Dept. Public Wks. v. Presley, supra, 239 Cal.App.2d 309. There the state as part of a freeway project condemned the landowner's interest in the fee underlying a street for which the public held an easement, and the landowner's right of access to that street. The court upheld the trial court's refusal to permit the inclusion of any amounts for damages occasioned by '(1) the increased noise, fumes and annoyance which would result from the more heavily trafficked freeway, and (2) for loss of street parking privileges. ...' The court held that the former damage was not compensable because it was shared generally with all other property owners in the neighborhood, following City of Berkeley v. Adelung, supra (239 Cal.App.2d at p. 311). Although the fee to the roadway was taken, it may be noted that the case is not one which creates a new use of the property taken, but it only involves an increase in the burden previously imposed by the easement for the street. Moreover, in airport cases, there is precedent for the fact that general disturbance of the neighborhood may rise to the point where compensation must be paid without regard for any taking for overflights. (See, Code Civ. Proc., s 1239.3, fn. 5, and cases cited fn. 11.)

The situation in this case is more analogous to that recognized in People v. O'Connor (1939) 31 Cal.App.2d 157 [87 P.2d 702]. In that case the state took a strip to widen the highway and thereby decreased the distance of the landowner's house from the highway by 10 feet. The court upheld an award of severance damages which was predicated upon testimony that the value of the residue would be decreased by factors which included among others, 'that the increased closeness of the highway would increase traffic noises and hazards.' The court stated, 'These elements of damages mentioned by the witnesses are not claimed by respondents as special damages, but are merely the reasons given by the experts for their opinions that the market value of the portion of the tract not taken would be diminished by reason of the taking of the 1/10-acre strip in front. They are not conjectural but actual admitted facts.' (31 Cal.App.2d at p. 159.) This precedent was recognized in People v. Symons, supra, as representing the situation where the factors complained of occurred on the land taken, as distinguished from occurring on adjoining property (54 Cal.2d at pp. 859-860).

It is concluded that the court properly permitted evidence of the effect on the value of the subjacent land of excessive noise, vibration, discomfort, inconvenience and interference with the use and enjoyment of that land as such factors were occasioned by flights through the easement condemned. The jury was instructed to confine its deliberations to damages occasioned by use of the airspace which was condemned. It follows that any error in reading the provisions of section 1239.3 to the jury was not prejudicial, because they added nothing to what the landowners were otherwise entitled to have the jury consider.

In City of Fresno v. Hedstrom, supra, the court stated, 'The testimony relative to the effect of low-flying aircraft over the 10-acre tract involved and over the remaining 30 acres of defendants' property was admissible only to determine the damage, if any, to the 30 acres insofar as it affected its market value. The materiality of such evidence depended upon a showing that the damages, if any, were caused or would be caused by the taking of the 10 acres. As pointed out by appellant, some of the evidence introduced over objection related to inconvenience and detriment suffered by defendants long prior to the filing of the instant action.' (103 Cal.App.2d at p. 457. See also, Arnerich v. Almaden Vineyards Corp., supra, 52 Cal.App.2d 265, 272.) The city contends that any damage to the subjacent property from overflights occurred following the establishment of the runway in question in 1943 or 1944; that the residences of the landowners, which, with few exceptions were constructed and sold in 1963 and 1964, were subject to height limitation zoning, [FN16] and were subject to established uses of the airspace which precluded the present assertion of any damages from noise and similar factors.

[FN16] Peacock v. County of Sacramento (1969) 271 Cal.App.2d 845 [77 Cal.Rptr. 391] indicates that zoning may not be used to condemn airspace without compensation (see fn. 14 above).
On the other hand, there was evidence that prior to sometime in 1966 the runway in question had only been used by light planes with little disturbance to the landowners. Evidence was introduced to show that by the time the condemnation action was filed, December 8, 1967, there had been a dramatic increase in the use of this runway by large jet planes which flew at high rates of speed, at elevations as low as 100 to 300 feet over the lands in question, with attendant noise and other disturbances which substantially impaired the use and enjoyment of the property. Under these circumstances the city cannot rely upon an established right to inflict the damage caused by the later flights. (See, A.J. Hodges Industries, Inc. v. United States, supra, 355 F.2d 592, 599 [174 Ct.Cl. 259]; Avery v. United States (1964) 330 F.2d 640, 642-643 [165 Ct.Cl. 357]; and Aaron v. United States (1963) 311 F.2d 798, 800-801 [160 Ct.Cl. 295].) The evidence warrants the conclusion that 'The glide path for the ... 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.' (See, Griggs v. Allegheny County, supra, 369 U.S. 84, 90 [7 L.Ed.2d 585, 589].) The evidence also reflects that the intense new use accompanied the taking of the airspace used. The implied finding that the loss in market value claimed by the landowners directly and proximately resulted from the use of the airspace which has been taken is supported by the record.

The city also asserts that the fact that the severance damages were not separately assessed precludes justification of the judgment on the theory that it is predicated on severance damages, rather than on an award for the taking of rights which the city did not directly seek to condemn. The landowners' appraiser did not make a separate determination as to the value of the airspace taken and the decrease in the market value of the subjacent land and improvements from the use of that airspace, and he was unable to segregate the two. He did, however, assess the total depreciation in value for the rights taken at $10,000. The city's appraiser testified, '... my opinion of the taking of the easement itself in the air space is that it has no value, that the taking of this easement in itself is not damaging the property, but it's the -- I shouldn't say it's not damaging the property. Now, the damage, in my opinion, occurs to the rest of the property by reason of the taking.' He fixed the severance damage as equivalent to 15 percent of the value of the subjacent premises prior to the taking. He further testified, 'In my opinion there would be practically no damage at all to the properties if the only restriction was a height limitation restriction. It would be a nominal sum. I originally estimated this at $500 per parcel. Q. Then does the other aspect, the incidents of operation of aircraft flights in your opinion create the remainder of the sum shown on that exhibit? A. Yes.'

The situation is analogous to that found in Pacific Gas & Elec. Co. v. Hufford, supra, 49 Cal.2d 545, wherein it was contended that similar computations with respect to the taking of an easement for a transmission line resulted in double damages. The court approved a computation based on the before and after value of the servient tenement which included both the value of the easement taken and the severance damages to the remaining property. (49 Cal.2d 545, 552-555. See also, People v. Ricciardi, supra, 23 Cal.2d 390, 401; and San Bernardino County Flood Control Dist. v. Sweet, supra, 255 Cal.App.2d 889, 904.)


III

The conclusions of law refer respectively to, 'I. ... an air easement in the air space above Parcel No. ... shall be condemned for the use of plaintiff for airport purposes as more particularly described in plaintiff's complaint on file herein'; 'II. That the air easement so taken is condemned pursuant to Sections 1239.2 and 1239.3 of the Code of Civil Procedure and includes all rights and interests described in said sections'; and 'III. That the payment into court of said sum of money as hereinabove specified is in full payment for the easement so taken, as set forth in the complaint, and for all damages of every kind and nature suffered by said defendants by reason of the taking of said easement pursuant to said Sections 1239.2 and 1239.3 of the Code of Civil Procedure and the construction of the improvement in the manner proposed by plaintiff.' Recitals similar to those set forth under 'I' and 'III' above, are found in the judgment.

As has been noted, the reference to section 1239.3 is improper. Moreover, the city is entitled to a judgment which will protect it from further claim of damages. (See, Davis v. United States (1961) 295 F.2d 931, 934 [155 Ct.Cl. 418].) The jury was instructed, '... the plaintiff will acquire all rights sought to be taken by its complaint. All of the compensation to which the defendants are entitled by reason of this taking and damages to the remainder by reason of the operation of the airport is to be ascertained and paid in this proceeding and they will not receive in the future any further compensation therefor.' (See, People ex rel. Dept. Pub. Wks. v. Lundy, supra, 238 Cal.App.2d 354, 361-362.)

The conclusions of law should be amended by the deletion of the reference to section 1239.3 in paragraph 'II'; and the conclusions of law and judgments by the substitution of the following language for paragraph 'III' of the conclusions of law and the commensurate language in the judgments:

'That the payment into court of said sums of money as hereinabove specified is in full payment for the easement so taken, as set forth in the complaint, and for all damages of every kind and nature suffered by said defendants by reason of the taking of said easement pursuant to said section 1239.2 and the use of the airspace which is the subject thereof in connection with the adjacent airport of plaintiff for the landing and taking off of aircraft, including in such damages compensation for excessive noise, vibration, discomfort, inconvenience and interference with the use and enjoyment of defendants' remaining property, and any reduction in the market value of such property by reason of the operation of aircraft to and from the plaintiff's airport through the airspace which is the subject of said easement.'
The judgments are reversed and the cases are remanded for correction of the conclusions of law and judgments nunc pro tunc as of the time of their original entry, in accordance with the views expressed in this opinion. The judgments shall draw interest from the date of their original entry. The costs of appeal shall be taxed to appellant city.

Molinari, P. J., and Elkington, J., concurred.

A petition for rehearing was denied on December 23, 1970, and the following opinion was then rendered:

THE COURT.

In their petition for rehearing the landowners for the first time contend that interest should be allowed from the date of the filing of the complaint because their damage had occurred prior to that date. (See Code Civ. Proc., s 1255b, subd. (a) (2); Youngblood v. Los Angeles County Flood Control Dist. (1961) 56 Cal.2d 603, 611-612 [15 Cal.Rptr. 904, 364 P.2d 840]; Heimann v. City of Los Angeles (1947) 30 Cal.2d 746, 758-760 [185 P.2d 597]; and Riverside County Flood etc. Dist. v. Halman (1968) 262 Cal.App.2d 510, 514-517 [69 Cal.Rptr. 1].) This contention is rejected.

'The right interest on a condemnation award springs from the judgment. [Citations.] Ordinarily, interest commences from the date of entry of the judgment. [Citations.] However, where property is taken or damage prior to judgment, the condemnee's right to just compensation includes the right to have the award draw interest from the date of possession [citations], or the date the property was damaged [citations]. The rules are now codified in section 1255b of the Code of Civil Procedure which provides that an award shall draw interest from the earliest of the following: '(1) The date of the entry of judgment. (2) The date that the possession of the property sought to be condemned is taken or the damage thereto occurs. (3) The date after which the plaintiff may take possession. ...' (Code Civ. Proc., s 1255b.) Plaintiff not having obtained an order for immediate possession, the right to interest in the present case turns upon the question whether the property was taken or damaged prior to judgment.' (Riverside County Flood etc. Dist. v. Halman, supra, 262 Cal.App.2d at pp. 514-515.) The landowners, having failed to raise the question of interest below, and not having filed a cross-appeal, may not secure review of the question of interest at this stage of the proceedings.

The landowners also contend in their petition for rehearing that the opinion improperly provides that the costs of appeal shall be borne by each party as incurred. This contention is meritorious. A landowner has the constitutional right to be free from costs in any condemnation action seeking to acquire his property rights for public use, including his costs on appeal. (See In re Redevelopment Plan for Bunker Hill (1964) 61 Cal.2d 21, 68-71 [37 Cal.Rptr. 74, 389 P.2d 538], cert. den. 379 U.S. 899 [13 L.Ed.2d 174, 85 S.Ct. 185], app. dism. 379 U.S. 28 [13 L.Ed.2d 173, 85 S.Ct. 190]; and Sacramento Drainage Dist. ex rel. State Rec. Bd. v. Reed (1963) 217 Cal.App.2d 611, 612-613 [31 Cal.Rptr. 754].)

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