1 ELR 20196 | Environmental Law Reporter | copyright © 1971 | All rights reserved
Aaron v. City of Los AngelesNo. 837 799 (Cal. Super. Ct. February 5, 1970)
Noise caused by jet aircraft flying over or near residential properties in the neighborhood of Los Angeles International Airport; which results in a substantial diminution in the market value of these properties, constitutes a "taking or damaging" of property within the meaning of the California Constitution art. I, § 14. California law of inverse condemnation allows recovery where property value has been lessened even in absence of actual trespass. Since the evidence demonstrates that all property within specific distances from the offending aircraft flight patterns is as exposed to noise as property directly underneath the airport glidepaths, no reasonable basis exists in law or fact for distinguishing between property damaged by "fly over" noise and property damaged by "fly by" noise. The suit was filed within one year after the noise complained of had stabilized. The action therefore is not barred by the statute of limitations. The public convenience and necessity of jet transportation does not justify the uncompensated damaging of the property of persons living in close proximity to landing and takeoff light patterns. The general public which benefits from jet air travel must pay for this convenience through compensation of those who disproportionately suffer its consequences.
Counsel for Plaintiffs:
Lyle C. Ellis
James C. Slonne
Ellis & Slonne
1263 Westwood Boulevard
Los Angeles, California
Counsel for Defendants:
John Haggerty Deputy City Attorney
1 World Way
Los Angeles, California 90009
[1 ELR 20196]
This is an action for damages for inverse condemnation. There are approximately one thousand five hundred plaintiffs who allege that they are the owners of real property in the neighborhood of Los Angeles International Airport, sometimes hereafter referred to as the Airport, and that the City of Los Angeles, the only defendant in this action, has permitted and caused an increasing number of jet airplane flights over and in the immediate vicinity of the plaintiffs' properties, so that the noise, smoke, vibrations and fumes from the aircraft have damaged these properties. There are approximately seven hundred and fifty separate parcels of real property involved in this action. All of the parcels are residential in nature. Most of these parcels are located east of the Airport, with the remainder being located west of the Airport and in the beach area commonly known as Playa del Rey.
Besides denying the allegations set forth in the complaint, the defendant City asserts a number of affirmative defenses. The defenses raised by the defendant are as follows: (1) that the complaint fails to state a cause of action; (2) that the cause of action is barred by the statute of limitations as set forth in sections 312, 318 and 319 of the Code of Civil Procedure; (3) that the action is barred by the statute of limitations as set forth in section 338, subdivision 2, of the Code of Civil Procedure; (4) that the Federal Aviation Act of 1958, as amended, has preempted control of airspace navigation; (5) that the defendant City has acquired by prescription an easement in the airspaceinvolved because of more than five years' adverse use by defendant City; (6) that public convenience and necessity require that defendant City use the airspace involved in this action, and that the City is entitled to an easement for continued use of this airspace.
[1 ELR 20197]
A Pretrial Order was made which sets forth the various contentions of the parties, including additional issues to the extent that they are not raised specifically by plaintiffs' complaint and defendant's answer thereto. An important additional issue which has been raised and litigated in this case is the question of whether the plaintiffs are barred from relief by the failure to file a timely claim with the defendant City.
The basic theory of liability which plaintiffs advance is that the noise from jet aircraft flying over and near the residential properties of plaintiffs has resulted in a substantial diminution in the market value of these properties, which thus constitutes a "taking or damaging" of these properties within the purview of Article I, section 14, of the California Constitution.
It is conceded that the Los Angeles International Airport was in existence at its present location prior to the acquisition by the plaintiffs of their residential properties. The runways of the Airport are located in an easterly and westerly direction. Planes landing at the Airport approach the runways from an easterly direction. Planes leaving the Airport do so in a westerly direction and fly out over the ocean. These are the flight patterns of arrivals and departures for most of the days in the year. Occasionally, because of wind conditions, arrivals are directed to come from the west and takeoffs toward the east. The times, however, when these changes are made are rare enough that they need not be given any consideration with respect to the issues involved in this case.
Before the year 1959, planes flying into, and departing from, the Los Angeles International Airport were of the propeller type. The first jet airplanes started using this Airport in 1959, and, since 1959, there has been a gradual, yearly increase in the number of jet aircraft arriving and departing from this Airport. Apparently, there has been little or no complaint from property owners with respect to noise emanating from the propellor-type airplanes. The noise problem developed only with the advent of jet aircraft.
Although there was some testimony that soot, oil and fuel debris from jet aircraft fell on some of the parcels involved in this litigation, causing damage to painted surfaces and preventing homeowners from keeping their cars uncovered and using their yards for clothes drying, the essence of the claimed reductions in market values of property affected is related solely to the noise from the jet planes as the responsible cause.
Plaintiffs do not seek damages because of any personal injury, discomfort of annoyance. Although th testimony establishes that jet noise interrupted normal conversation, radio and television reception and sleep, at times, no claim is asserted for these results as such. The dvidence as to the effects of jet noise upon personal comfort, enjoyment or convenience in living was offered as a factor tending to show that these effects caused a reduction in the fair market value of the respective parcels of real property. What plaintiffs seek in this action are money damages measured by the extent to which the market value of the respective parcels of property has been reduced because of noise fromjet aircraft flying over and near these parcels located with and near the landing and takeoff patterns.
One of the crucial issues involved in this litigation is whether noise from jet aircraft presents a proper case for inverse condemnation. It is the contention of the defendant City that the law does not sanction any recovery for noise against a government entity, even assuming that such noise has caused a diminution in property values. There is yet no appellate court decision in California on this point. The trial courts must chart the theories of recovery or nonrecovery, and, ultimately, the California Supreme Court will be asked to determine this aspect of the law of inverse condemnation upon appeals from judgments of the trial courts.
There are various alternatives which may be considered. The federal Constitution provides for the payment of compensation only when there is a "taking" of private property for a public use. Under the federal view, what is meant by the concept of the "taking" of private property? The federal courts have made it clear that there can be no recovery in eminent domain or inverse condemnation proceedings unless the owner of real property has been ousted or displaced by the Government with respect to some portion of his property, with the result that the Government occupies what the owner once occupied or had the right to occupy. Under the federal cases, an injury to property without displacement or ouster of the owner is not compensable.
With respect to the flight of aircraft and aircraft noise, we have the problem of determining how noise from the flight of aircraft which lowers the market value of property can constitute a "taking" of such property. The federal rule solved this problem by holding that the flight of aircraft over an owner's property constitutes an invasion of the owner's airspace over his surface property, and that this is a sufficient "taking" to permit recovery by the owner who suffers a market-value loss by such overflights. But the federal rule does not allow any recovery to the owner who suffers a loss in market value from horizontal noise, or noise from flyby aircraft, even though it may be as annoying to him as it is to the owner directly over whose property the airplanes are flying. In United States v. Causby, 328 U.S. 256 (1946), the United States Supreme Court held that flights on takeoff and landing at low level over an owner's property could be considered a "taking" in the nature of an easement of flight, and rendered the Government liable for the decreased value of the owner's property. In Causby, the court made it clear that this decision was being limited to permitting recovery by a property owner over whose land the planes took off, and could not be considered as a holding to protect nearby owners. The nearby owners are considered to have suffered incidental damage for which no recovery is allowed.
In Batten v. United States, 306 F.2d 580 (10 Cir. 1962), plaintiffs whose property values were depreciated by the noise from jet aircraft near their properties, but which were not subject to direct overflights, sought damages from the Government under the theory that there was a "taking" of their property which was compensable under the federal Constitution. The majority of the court followed Causby and held that damage from lateral flight noise was not a "taking" by the Government. Plaintiffs were thus denied recovery.
A second view would permit recovery in inverse condemnation by property owners who suffer substantial diminution in market value from jet aircraft noise, regardless of whether the planes fly directly over the owner's property or not. Under this view, it is recognized that there can be no acceptable theory of a "taking" of the owner's property under such circumstances. This second view permits recovery on a nuisance theory, which requires substantial damage to the property owner. Is there any basis for sustaining such a view under a state constitutional provision which provides for compensation only when there is a "taking" of property by a governmental entity? This view of recovery is sanctioned in the State of Oregon. This was the holding in Thornburg v. Port of Portland, 233 Ore. 178, 376 P.2d 100 (1962). In Thornburg, the plaintiffs owned property near an airport which was owned and operated by a public agency, the Port of Portland. Oregon's Constitution is similar of the federal Constitution, and provides for compensation only for a "taking" of private property by governmental action.The damage to property values alleged came from noise from horizontal flights, or flyby aircraft, rather than from vertical flights, or flyover aircraft. The Oregon court rejected the federal rule set forth in Causby of limiting recovery to cases of noise from vertical flights, or flyover aircraft, which may be explained as a trespass theory, which gives the Government an easement right. The Oregon court adopted a nuisance theory, which permits recovery for damages so long as there is proof of real injury, whether resulting from noise coming from flyover or flyby aircraft.
However, in a second appeal in Thornburg v. Port of Portland, 244 Ore. 69, 415 P.2d 759 (1966), the Oregon court, although seemingly rejecting the nuisance theory of recovery enunciated by it in the first appeal, did, nevertheless, clarify what was required to be established by a landowner in order to recover damages for inverse condemnation. The court said, "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 certain sum 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, supra, 415 P.2d at p. 752.) See Murrah, C.J., dissenting, Batten v. United States, 306 F.2d 580, 587 (10 Cir. 1962).
A third view is a further extension of the Oregon rule. The Oregon view requires proof of substantial damages. This third view permits recovery for any damage, whether substantial or not, which results to the property owner from aircraft noise, regardless of whether the noise comes from flyover or flyby aircraft. This view is espoused by the State of Washington. In Martinez v. Port of Seattle, 64 Wash. 2d 324, 391 P.2d 540 (1964), plaintiffs were property owners near the Seattle-Tacoma International Airport, owned and operated by the Port of Seattle, a municipal corporation. Some of the plaintiffs were located underneath the flight patterns, while others were not directly underneath but were near the flight patterns, and all claimed a decrease in property values from the jet noise. Here the question was whether the plaintiffs' [1 ELR 20198] complaint which set forth these facts stated a cause of action. The Washington Constitution contains a clause which requires compensation for "taking" or "damaging" private property by governmental action. The Washington court held that plaintiffs' complaint stated a cause of action. The court rejected as purely legalistic the theory of trespass or easement or a limitation of recovery to invasion of airspace above an owner's property. The court adopted the view of the dissent in Batten v. United States, cited supra, that there should be compensation whenever the interference with the use of an owner's land is of sufficient directness, peculiarity and magnitude "that fairness and justice, as between the State and the citizen, requires the burden imposed to be borne by the public and not by the individual alone." (Martinez, supra, 391 P.2d at p. 546.) However, the Washington court refused to accept the principle that the plaintiffs must make a showing that their damage is substantial before the damage can be said to be a taking or damaging within the meaning of the constitutional language. The Washington court rejected the view that less-than-substantial damage would be considered noncompensable as incidental damage, holding that any diminution of property values, however slight, should be compensable.
We now turn to the law of California to determine if California has embraced a particular theory for recovery in airport noise case. We start with a consideration of the street or freeway noise cases. To date, California has taken the view that a property owner whose property has not been taken for freeway or street purposes, but whose property has been decreased in value from the vehicular noise of a freeway or street, may not recover from the governmental entity any damages for such decrease in property values. This was the holding in People ex rel. Dept. of Public Works v. Symons, 54 Cal.2d 855 (1960). In Symons, the court quoted from Eachus v. Los Angeles, etc., Ry. Co., 103 Cal. 614, 617 (1894), as follows: "'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 constituion; but the property itself must suffer some diminution in substance, or be rendered intrinsically less valuable by reason of 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 any injury to the property itself so much as an influence affecting its use for certain purposes. . . .'" To the same effect is People ex rel. Dept. of Public Works v. Elsmore, 229 Cal. ApP.2d 809 (1964).
A more recent case in point is Lombardi v. Peter Kiewit Sons, 266 Cal. ApP.2d 599 (1968), where it was held that a complaint did not state a cause of action in inverse condemnation. The complaint alleged that the plaintiffs were property owners next to a freeway, and that the building and operation of the freeway resulted in fumes, noise, dust, shocks and vibrations, causing mental, physical and emotional distress to the plaintiffs and damage to the real property. The court held that this complaint did not state a cause of action in inverse condemnation because no recovery may be had unless damage in a substantial amount to the property itself has bee sustained. Lombardi cites as authority for its holding the cases of Albers v. County of Los Angeles, 62 Cal.2d 250 (1960); and Frustuck v. City of Fairfax, 212 Cal. ApP.2d 345 (1963).
In the Albers case, we have a situation in which the county construction of a road caused land slippage and damage to neighboring property owners. The Supreme Court upheld the trial court in giving judgment for damages in inverse condemnation against the County and in favor of the landowners. In Albers, the California Supreme Court interpreted the California constitutional provisions with respect to eminent domain to permit recovery for any actual physical injury to a landowner's property caused by the improvement. The court distinguished the situation presented in Albers from that presented in Symons by pointing out that in the latter instance the diminution in property values resulting from such factors as highway traffic noise does not involve any direct physical damage to the property itself but only a diminution in the enjoyment of such property.
Albers states the California law as going beyond the federal cases. The theory of the federal cases requires a physical invasion of realty by the governmental entity. This is a trespass theory, which requires an ouster of the owner of possession of some part of his property, whether it be the surface of his land or the airspace above. This physical invasion theory is the exclusive test under federal law. Albers can hardly be said to involve a trespass or a physical invasion of the landowner's property by the governmental entity. The emphasis in Albers is upon physical injury or damage to the realty. If there can be recovery for physical damage to realty without any actual trespass upon or physical invasion of the landowner's property by the governmental entity, it would seem to follow that an invasion of the air surface above the land by aircraft overflights would be sufficient to permit recovery in inverse condemnation, so long as there has been a loss in market value resulting from such aircraft overflight noise. It should be immaterial whether a loss of market value from aircraft overflight noise is looked upon as a "taking" or "damaging" of private property, since the California Constitution provides for eminent domain compensation where there is a "taking" or "damaging." (See California Constitution, Article I, section 14.)
A more serious question, however, is whether the California cases, such as Albers, Lombardi and Symons, restrict recovery in inverse condemnation in the aircraft noise situation to those cases in which the market value of private property has been diminished by noise from aircraft flyovers. The question to be determined is whether the rule of Symons means that aircraft noise falls in the same category as freeway motor vehicle noise, so that in the absence of an invasion of some portion of an owner's property, no recovery may be had for a decrease in market value due to noise, fumes, soot or vibrations of flyby jet aircraft as distinguished from flyover jet aircraft. Is there any rational basis for distinguishing freeway noise effects from jet aircraft noise effects?
One justification for the Symons rule in freeway noise cases is that property owners in the same position are treated equally. Thus, all property owners adjacent to the freeway are treated equally in not being permitted to recover for any loss of market value due to freeway noise or fumes. Such owners may logically be set apart from those whose property is actually taken by freeway construction, because the property owner whose property is actually taken is ousted and deprived of possession of that portion of his property. In the case of jet aircraft noise, however, it is pure fiction to claim that property owners directly under the flight pattern have been ousted from the use of the airspace above their properties by the flyover aircraft. In the case at bench, for example, the property owners whose properties are subject to flyover jet aircraft are still in possession and use of their single-family and multiple-unit properties to the same extent as are the owners who suffer from jet aircraft flyby noise only.
The theory of a "taking," enunciated by the federal cases, is deemed necessary because of the federal constitutional provision that a "taking" must occur in order to permit recovery from the Government. Since the California Constitution provides for compensation for a "damaging" of private property as well as for a "taking" of private property, California is not required to adopt the tenuous theory of the federal courts that an invasion of a landowner's property is necessary before a "taking" takes place.Albers leads the way to this result, since in Albers there was physical damage to the citizen's property but no real invasion or appropriation of space by the County.
There is every reason to believe that the citadel of Symons must crumble and fall in the face of changing conditions created by the advent of jet aircraft. The Symons rule must be restricted in its application to the narrow factual situation presented in that and similar cases. In addition to Albers, other California Supreme Court decisions leave little doubt as to the demise of the Symons doctrine in other factual contexts. In People ex rel. Dept. of Public Works v. Ramos, 1 Cal. 3d 261 (1969), Symons was distinguished, and any implications to the contrary found in People ex rel. Dept. of Public Works v. Elsmore, 229 Cal. ApP.2d 809 (1964), was disapproved. But of greater significance is the language found in Loma Portal Civic Club v. American Airlines, Inc., 61 Cal.2d 582 (1964), a case in which property owners sought an injunction against various airlines to prohibit annoying flight operations over their lands.Damages were not sought against the owner and operator of the airport. Although denying the injunctive relief sought, the court made this highly significant observation: "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." (Loma Portal Civic Club, supra, at p. 591.)
Furthermore, there is a significant difference between the noise emanating from jet aircraft and that coming from automobiles and trucks on a street or freeway. This difference is so pronounced that the legal consequences of jet noise should not be the same as the legal consequences of street and freeway noise of cars and trucks as enunciated by cases such as Albers, Lombardi and Symons. Scientific studies demonstrate that jet aircraft noise creates a severe disturbance to the [1 ELR 20199] comfort, enjoyment and use of residential property by the owners affected. The sounds emanating from cars and trucks on streets and freeways are simply minor contrasted with the irritating and offensive sounds emanating from jet aircraft. Scientific evaluation of sound and noise establishes a significant difference between the two types of sounds and noises and their effects upon human beings. Studies made by acoustical scientists and experts establish that the comparative offensiveness of different sounds is capable of measurement by accepted standards of numerical ratings.
Noise is simply one type of sound. Noise is commonly considered as unwanted sound because of the ear's reception and reaction to different kinds of sounds. In dealing with noise, whether it be from automobiles or aircraft, we are concerned with its annoyance and offensive effect upon people, and whether such noise results in a substantial interference with the comfort, enjoyment or use of one's home.
There are two components of sound in terms of the ear's reception and reaction.One is the intensity, magnitude or loudness of sound, and the second component is the frequency band or frequency range of sound. The high frequency components of sound are the elements which disturb human sensitivities. Although intensity or loudness is also involved in the human judgment of offensiveness, the high frequency aspect of sound creates, by far, the greater irritating effect upon human beings. Thus, the screech of crayon upon a blackboard is a typical example of significant annoyance from a high frequency sound of low intensity or loudness.
The hue and cry over aircraft noise did not develop until the coming of jet aircraft. The explanation is that propellor aircraft creates sounds that are predominantly in the low frequency range, and low frequency sounds are not as disturbing to the ear as are high frequency sounds. Likewise, the sounds from automobiles and trucks traversing the streets and freeways are predominantly low frequency or low pitch sounds, and hence do not begin to have the annoyance and offensive consequence to the human ear as the high frequency sounds made by jet aircraft. Tests conducted by acoustical experts indicate that if the average person hears two sounds of the same intensity or loudness and one is a high frequency sound and the other a low frequency sound, such person will believe that the high frequency sound is louder than the low frequency sound.
The sound frequencies, or the differences in high pitch tones or low pitch tones, are measured by the number of vibrations or cycles per second. The intensity or magnitude or loudness of sound is measured in terms of a logarithmic scale of decibels. The sound or noise from jet engines creates what is called a broad band noise in the sound spectrum. An orchestra with all of its instruments playing represents a picture of a broad band sound spectrum. That is, the flutes and piccolos make high frequency sounds, while the tubas, bases and cellos create low frequency sounds. The broad band sound of jet engines produces tones of various frequencies. However, the dominant tones of jet engines are in the high frequency range. It is this factor of the concentration of jet noise in the high frequency portion of the sound spectrum which creates the disturbing and annoying feature to the ear.
Acoustical experts have developed the term "Effective Perceived Noise Level," abbreviated EPNL. Effective Perceived Noise Level represents a noise scale which provides a means for comparing the relative noise content of sounds on the basis of the two components, intensity and frequency. The EPNL rating of noise sounds represents the annoyance or offensive value which hearers place on the noise spectrum. It represents the hearer's interpretation of the sound spectrum. It is a conversion of a physical measurement of sound in terms of frequency in cycles per second and intensity in decibels to a hearing interpretation of sound. Sound experts rate noise with an EPNL single numerical number in decibels, which represents the individual's reaction or annoyance to the particular sound spectrum. The higher the EPNL rating, the greater the annoyance feature of the noise which is translated into the EPNL rating. The EPNL numerical rating, which is expressed in terms of decibels, fixes a value which takes into account, where jet aircraft are concerned, factors such as the duration of the particular sound, the number of flights, whether the flights are daytime or nighttime flights, and the type of aircraft engine, such as the fan jet engine or the pure jet engine.
What are the annoyance or offensive features of noise? One of the important considerations is the influence of noise upon the ability of persons to communicate with each other. If the noise is such that persons engaged in conversation must talk louder to be heard, or get closer together to be heard, or cease talking altogether, then the noise has clearly interfered with normal communication between persons in a home. Interference with normal communication may also be considered in terms of its effect upon telephone conversations and the ability to hear and enjoy radio and television programs. Another annoyance feature of noise is involved if there is an interruption of a person's sleep.
The physical factors which go into the calculations to arrive at an EPNL rating are obtained in part from field tests, which record by means of instruments and cameras the jet noise from flyover and flyby aircraft at various land points in the takeoff and landing patterns. The EPNL value determined at a particular land location takes into consideration factors such as the altitude of the aircraft and its distance from the land location as it approaches and leaves the specific location on its flight, the duration of the sound, the type of sound produced by different types of aircraft and the number of flights of different types of aircraft per day and night.
The reason that the number of operations per day of jet aircraft is important in a determination of the EPNL rating of jet aircraft noise is that if the noise of a single aircraft is such that it interferes with normal communication in a home, an increase in the number of flights thereby increases the chances of an interference with normal communication, and hence increases the annoyance effect of jets. Thus, several flights a day of jet aircraft may constitute little interference with normal communication. But if there are hundreds of flights per day, the interference with normal communication obviously becomes substantial.
An expert in applied acoustics and aircraft and vehicle noise sound measurements testified for the plaintiffs. This expert was the co-author of a study made by the firm of Bolt, Beranek and Newman, Inc., for the Federal Aviation Administration. The study was made to determine Noise Exposure Forecast areas resulting from aircraft takeoff and landing operations at the Los Angeles International Airport for the year 1965. The purpose of the study was to determine the effects of aircraft noise upon various land uses in areas surrounding the Los Angeles International Airport. To what extent is commercial use of land different from residential use insofar as aircraft noise is concerned? Determination of the effects of jet noise upon different land usages furnishes a good guide to better land-use planning and zoning in areas surrounding an airport. The Noise Exposure Forecast areas, hereafter referred to as NEF areas or contours, were determined and based upon aircraft noise measured numerically in terms of Effective Perceived Noise Levels, and which thus took into consideration factors such as the number of jet flights per day as compared to the number at night, the various types of operating conditions, such as takeoff and landing thrusts and performance and the altitudes of aircraft at various locations in the takeoff and landing patterns.
The NEF areas delineated as a result of the study constitute a measuring of the noise environment surrounding the Los Angeles International Airport, using the EPNL standard of measurement. The study resulted in the designation of three NEF areas of zones. An inner zone, designated NEF Area "C," constitutes a zone of the highest noise level, in which jet aircraft would have the greatest impact on people living within that area. An outer area, designated NEF Area "A," was the zone of the lowest noise level, in which it was determined that there should be no annoyance from aircraft noises to persons living in that zone. In between these two NEF areas was a third zone, designated NEF Area "B." The middle zone was one in which it was concluded that it would be difficult to predict to what extent persons living in that area would be affected by jet aircraft noise.
In the zone designated NEF Area "C," it was the recommendation of the authors of the study that no new single-family residences or apartment houses should be constructed because of the severe noise impact from jet aircraft upon residential living in this area.
In the zone designated NEF Area "B," the opinion was that apartment house construction could be permitted with adequate soundproofing, but that new single-family construction should generally be avoided. So far as noise levels are concerned, the expert witness indicated that there was a 15 decibel difference in noise level rating resulting from jet aircraft between NEF Area "A" and NEF Area "C." In other words, in NEF Area "C," where jet aircraft noise had its greatest annoyance value to residents, the EPNL rating was 15 decibels higher than the noise level in NEF Area "A," where there should be no substantial effect upon residential living. The three NEF areas depict, therefore, areas of significant difference in terms of the deleterious effects of aircraft noise. The 15 decibel difference between an area seriously affected by jet aircraft noise and an area not materially affected has significance because of the accepted principle that an increase of 10 decibels in the Effective Perceived Noise Level rating corresponds to a doubling of the annoyance effect upon persons subjected to a noise level increase of 10 decibels.
[1 ELR 20200]
Since the noise from jet aircraft is capable of acceptable and recognized measurement in terms of its annoyance effect, no reasonable basis exists for making a legal difference between the effects caused by flyby aircraft and the same effects caused by flyover aircraft. Recognition of this principle of equal treatment for the same effects from jet noise is the basis upon which NEF Area "C" has been designated as the area in which the Effective Perceived Noise Level is such that a substantial interference with residential living results from jet aircraft noise caused by the landings and takeoffs in the vicinity of Los Angeles International Airport.
It is suggested that unless recovery in inverse condemnation is limited to landowners suffering from flyover aircraft, there will be no reasonable way to draw a line to distinguish between those landowners who would have a cause of action and those who would not. The development of the NEF contour areas provides a good means of drawing a reasonable line between those landowners who may establish a cause of action for inverse condemnation and those who may not. All landowners who suffer from substantially the same noise level are treated on an equal basis. Thus, all landowners located in NEF Area "C" are subjected to noise from jet aircraft which substantially interferes with residential comfort, enjoyment and use of their property and which is substantiated by the Effective Perceived Noise Level rating in decibels used to delineate NEF Area "C." To the extent that they are able to establish that jet aircraft noise has diminished substantially the market value of their property, they should be entitled to recover damages in inverse condemnation. Those owners whose property is located outside of NEF Area "C" would not ordinarily be entitled to recover because the jet noise in areas outside of NEF Area "C" does not constitute normally a substantial interference with residential comfort, enjoyment and use of their property.
The testimony of the appraisers for the plaintiffs substantiates the findings of the acoustical expert whose studies produced the suggested NEF Areas "C," "B" and "A." Without being aware of these areas, the appraisers testified that at the various locations of most of the parcels involved in this suit they heard the noise of the planes, felt vibrations at some locations, and observed the nearness of the planes and their flyover or flyby routes. Even though it is coincidental, it turns out that the bulk of the parcels of real property involved in this lawsuit is located in the area or zone designated as NEF Area "C."
One of the reasons advanced by those who favor limiting recovery to those landowners who are in the overflight patterns only is that of administrative convenience. Unquestionably, administrative convenience is served by a rule of law that can be easily administered by the courts. To hold that the right to possession of real property is the sole constitutionally protected interest in real property does have administrative convenience in its favor. However, since the Effective Perceived Noise Level rating offers a comparative measure of annoyance and offensiveness for areas subjected to the same kind of flight operations, the use of such a standard is not ruled out through administrative inconvenience. On the contrary, the Effective Perceived Noise Level rating scale offers a practical means for comparing noise environments. Conditions which occur immediately below the line of flight appear also at lateral points along the surface. The Effective Perceived Noise Level scales permit the making of practical noise estimations and depicting this situation by contour maps of the surface. This has been done through the development and delineation of NEF Areas "A," "B" and "C" with respect to the land adjacent to and near the Los Angeles International Airport.
The view of this Court that landowners who are damaged by noise from flyover or flyby aircraft should have a cause of action for inverse condemantion receives support from legislation enacted by the California Legislature. Section 1239.3 was added to the Code of Civil Procedure in 1965. This section provides that a condemning agency, such as a city or airport district, may acquire airspace or an air easement in the airspace above the surface of property in the vicinity of an airport in which excessive noise, vibration, discomfort, inconvenience or interference with the use and enjoyment of real property produces a reduction in the market value of real property and occurs because of the operation of aircraft to and from and airport.
Prior to the addition of section 1239.3, the power to condemn airspace and air easements was granted to condemning agencies operating airports only to protect runway approaches from encroachment of structures or vegetation. Section 1239.3 is a legislative recognition of the principle that jet aircraft noise may be such that a landowner's property adjacent to an airport may be decreased in market value by reason thereof and result in a cause of action for damages for inverse condemnation. Section 1239.3 is significant because it does not, by its terms, limit the power of condemnation to the airspace in which overflights occur.Thus, this section appears to constitute a legislative recognition that landowners whose properties are reduced in market value by noise from jet flyby aircraft are entitled to consideration to the same extent as those who are affected by the noise from jet flyover aircraft.
Objection was made to the testimony of the expert who developed the NEF contour areas "C," "B" and "A" on the ground that his testimony pertained to the aircraft noise situation as it existed in 1965, whereas the thrust of plaintiffs' cause of action related to the aircraft noise situation in the year 1963. It is true that the 1965 noise problem would not be identical with the 1963 situation. The evidence indicates that in 1965 there were 113,061 jet landings at the Los Angeles Airport, inclusive of propeller jets, and that of this total number 86, 855 were pure jet aircraft. In 1963, the total number of jet landings, inclusive of propeller jets, was 76,724, of which 59,776 were pure jet aircraft. The difference between the number of pure jet aircraft in 1965 as compared with 1963 is not so great that the 1965 study lacks significance for 1963 conditions. The increase in the number of jet flights in 1965 over 1963 would indicate an increase in the annoyance factor of jet noise between the two years, but such increase is not of sufficient quantity to materially change the jet noise annoyance effect of 1963. To state the matter in reverse, as will be discussed infra, the number of jet flights to and from the Airport in 1963 was large enough to create a substantial interference with the comfort, enjoyment and use of residential property situated within NEF Area "C."
The land area described as NEF Area "C" consists of portions of the cities of Los Angeles, Inglewood, El Segundo and unincorporated Los Angeles County territory. That portion of NEF Area "C" east of the Airport is in the shape of a wedge, and may be generally described as follows: The narrowest and most distant point east of the Airport begins at Avalon Boulevard and Golden Avenue, and then stretches in a generally southwesterly direction toward the Airport. There is a gradual widening of NEF Area "C" from Golden Avenue and Avalon Boulevard to the Airport. This gradual widening results from the fact that airplanes are gradually descending as they approach the Airport for their landing. At Vermont Avenue, the northerly boundary of NEF Area "C" is approximately at 94th Street, and it southern boundary is approximately at 103rd Street. At Western Avenue, the northern boundary is approximately at 95th Street, and the southern boundary is approximately at 105th Street. At Crenshaw Boulevard, the northern boundary is approximately at 98th Street, and the southern boundary is approximately at 108th Street. At Hawthorne Boulevard and La Brea Boulevard, which are extensions of each other, the northerly boundary is approximately at 99th Street, and the southern boundary is approximately at 110th Street. At the San Diego Freeway, the northerly boundary is approximately at 99th Street, and the southern boundary is approximately at 111th Street.
The northerly boundary of NEF Area "C" to the west of the Airport is approximately along a line just south of Waterview Street and just north of Napoleon Street in the Playa del Rey community. The southerly boundary of NEF Area "C" to the south and west of the Airport is approximately at Mariposa Avenue in El Segundo.
The view of many courts, regardless of the theory of recovery, is that property owners must suffer substantial damage from jet noise in order to recover for inverse condemnation. This was the view enunciated by the Oregon court in the first appeal in Thornburg, which adopted a nuisance theory and permitted recovery by property owners who suffered damage from jet aircraft noise, whether the noise came from flyover aircraft or flyby aircraft. How is substantial damage to be defined? The cases dealing with the law of nuisance do not indicate any clear concept of what is meant by substantial damage. A reasonable view is one which holds that damage is substantial if it is measurable as contrasted with that which is merely nominal. Under this view, no particular dollar amount or percentage of reduction in the market value of property from jet noise is required for proof of substantial damage. Evidence that the market value of real property has been reduced by jet noise to an extent which is reasonably measurable satisfies the requirement of substantial damage.
One of the defenses raised by the defendant City is that the Federal Aviation Act of 1958 has preempted for the federal government the control and regulation of the use of navigable airspace. The Federal [1 ELR 20201] Aviation Act of 1958, as amended, declares that there exists in behalf of the citizens of the United States a public right of freedom of transit through the navigable airspace of the United States. This act defines "navigable airspace" to be the "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." (48 U.S.C. § 1301 (24).) Defendant City correctly points out that it has no control over setting the altitudes at which aircraft may fly in takeoffs or in landings. However, the fact that the federal government establishes the altitudes of flight does not answer the question of whether state law may impose liability for damage caused by jet aircraft noise. In Aaron v. United States, 311 F.2d 798 (Ct. Cl. 1963), the federal court indicated that a right of recovery for damage from aircraft flyover noise was limited to flights below the navigable airspace designated by Congress. The theory that there can be no taking of private property and hence no liability for noise from aircraft within the designated airspace was considered to be derived from the precedents existing for highways. Every citizen is entitled to use the highways, regardless of the noise made by his automobile. Similarly, it was said that citizens should be entitled to fly in the navigable airspace without liability. It is obvious that airplanes must fly at low altitudes for a certain distance adjacent to the runways upon making a landing and upon takeoff. If we accept the defendant City's contention, it would mean that the only liability for aircraft noise, regardless of the amount of damage in terms of diminution in market value, would come from aircraft which flew at lower altitudes than those designated. In Aaron, although the federal court accepted the preemption theory generally, it rejected the contention of immunity for flights within the navigable airspace at least to the extent of stating that a property owner's constitutional rights would have to be considered if it could be shown that a property owner suffered substantial impairment of his property rights from aircraft flights within the designated navigable airspace. With respect to state law imposition of liability, it could be reasonably asserted that if an owner's property is destroyed or damaged by aircraft noise, any immunity granted by Congress would be null and void because it would constitute a taking or damaging of private property without due process of law guaranteed by the Fourteenth Amendment to the United States Constitution.
State courts have rejected this theory of federal preemption for aircraft flying within the navigable airspace. In Thornburg, the Oregon court rejected the doctrine of federal preemption creating an immunity from liability on the ground that such immunity is predicated on the view that there can be no trespass from planes flying in the navigable airspace, and, without a trespass, there can be no damage to the landowner. Since the Oregon court rejected the trespass and taking theory and relied upon a nuisance theory for recovery, it concluded that the nuisance theory would permit recovery for damage to property from aircraft noise even if flights are within the navigable airspace designated pursuant to congressional legislation. In Anderson v. Souza, 38 Cal.2d 825, 839 (1952), it was stated that the federal declaration with respect to navigable airspace was "not intended to and do not divest owners of the surface of the soil of their lawful rights incident to ownership."
In Loma Portal Civic Club v. American Airlines, Inc., 61 Cal.2d 582 (1964), the California Supreme Court again rejected the contention of federal preemption. The Loma Portal Civic Club case determined that Congress had not indicated any intent to establish a federal preemption policy so that state action would be precluded because of an extensive pattern of federal regulation in the field. The court said that Congress had not indicated such a federal preemption because the Federal Aviation Act contained an express declaration that nothing therein contained should, in any way, abridge or alter remedies existing at common law or by statute. The court also reached the conclusion that there was no federal preemption by applying the test of whether the enforcement of state law would conflict with the purposes of the federal legislation, whether by frustrating an affirmative purpose or by interfering with a matter left intentionally unregulated by Congress. The court concluded that only a compelling federal interest, as where a statecreated liability would clearly frustrate federal purposes, would justify inferring an intent on the part of Congress to nullify rights normally considered in the state-law sphere. The definition and adjustment of property rights and the protection of health and welfare are matters primarily of state law. Thus, state courts may entertain wrongful death actions against airlines (Porter v. Southeastern Aviation, Inc., 191 F. Supp. 42 [M.D. Tenn. 1961]). In Huron Portland Cement Co v. City of Detroit, 362 U.S. 440 (1960), it was held that a city was not precluded from applying its antismoke ordinance to a ship whose boiler was built in compliance with federal safety requirements and had received federal approval after inspection. Huron indicates that the presence of a federal license is not, therefore, all-controlling in deciding the question of federal preemption.
Closely allied with the defense of federal preemption is the contention of defendant City that it cannot be held liable for damage to property owners from jet aircraft noise because it has no control over the airlines' choice of aircraft engines or the flight altitudes on the glide paths to and from the Airport. Although these are matters regulated by the Federal Aviation Administration, they offer no valid defense to the defendant City. The United States Supreme Court rejected such a defense in Griggs v. Allegheny County, 369 U.S. 84 (1962). There it was held that Allegheny County, which owned and operated the Greater Pittsburgh Airport, was bound under the Fourteenth Amendment to the United States Constitution to compensate a property owner who was damaged as a result of aircraft flights over his land. The fact that approach patterns were within the navigable airspace declared by Congress did not preclude the holding that there had been a "taking" of private property by the governmental owner and operator of the airport. The reasoning of the Supreme Court was that the County exercised the sole discretion to place the airport in the specific location, and that had it not so located the airport, there would have been no federal licensing of airplanes or fixing of navigable airspace to and from the specific location. Thus, in the case at bench, the City of Los Angeles made the decision to locate the Los Angeles International Airport where it now stands, and, as a result of that decision, must compensate those who own property adjacent to and near the Airport and who can establish that they have been damaged as a result of noise from jet aircraft.
One of the defenses asserted by the defendant City is that the defendant has acquired an easement by prescription because aircraft has used the airspace above plaintiffs' properties for more than five years preceding the filing of the complaint, and that the use of this airspace has been open and notorious and adverse to any interests claimed or asserted by plaintiffs. There is a serious question of whether it is legally possible for an operator and owner of an airport to obtain an easement by prescription with respect to aircraft flights over an owner's land. It is generally held that an easement in the air may not be obtained by prescription. See Hinman v. Pacific Air Transport, 84 F.2d 755 (9 Cir. 1936).However, defendant City offered no evidence to support this defense, and the matter requires no further consideration.
Another defense urged by defendant City is that plaintiffs are barred from relief by virtue of the statute of limitations provisions found in sections 312, 318, 319 and 338 of the Code of Civil Procedure. Asserted with this defense is the claim the plaintiffs are barred from relief by failing to file a claim with the City within one year after the accrual of a cause of action as required by Government Code section 911.2, formerly section 644. The evidence establishes that some of the plaintiffs filed claims with the defendant City on January 2, 1964, and the remainder on February 7, 1964.Obviously, if plaintiffs' cause of action arose more than one year prior to the above dates, the claims were not filed within the one-year period following the accrual of the cause of action. If the claims statute is applicable to a cause of action in inverse condemnation, and plaintiffs have not complied with the statute, plaintiffs have failed to prove a cause of action, and the statute of limitations provisions of the Code of Civil Procedure need not be considered. On the other hand, if the plaintiffs filed claims with defendant City within the prescribed one-year period, plaintiffs' complaint was filed within the requisite period following the denial of the claims so as to render inoperative any of the statute of limitations sections of the Code of Civil Procedure.
No authority has been cited by plaintiffs to justify a position that the one-year claims statute is inapplicable to a cause of action for inverse condemnation against a governmental entity. It appears to be an accepted rule of law that plaintiffs must file a claim for damages in inverse condemnation with the government agency under Government Code section 911.2 as a condition precedent to filing a lawsuit.See Peacock v. County of Sacramento, 271 A.C.A. 987, 993 fn. 5 (1969). Plaintiffs in this action assert that their cause of action for damages from jet aircraft noise arose in the year 1963, and that their claims filed in January and February of 1964, respectively, were thus filed in time. The defendant, while offering evidence tending to show that plaintiffs suffered no damage at all from jet aircraft noise, also offered evidence seeking to establish that any cause of action for damages from jet aircraft noise arose prior to the year 1963, with the consequent result that plaintiffs did [1 ELR 20202] not file their claims within the required one-year period. Although plaintiffs sought to prove that the year 1963 was the accrual date of their cause of action, no particular time in 1963 was sought to be established as the accrual date for the cause of action.
The question of when does a cause of action arise for damages to real property due to aircraft noise is a difficult and troublesome one and not easy of solution. However, this Court is satisfied that the evidence in this case establishes that plaintiffs' cause of action against the defendant City for damages to their properties from jet aircraft noise accrued in the month of May 1963. It follows that the claims filed by plaintiffs on January 2, 1964 and February 7, 1964, respectively, were filed within one year from the accrual of the cause of action.We now turn to a consideration of the evidence and authorities which support this conclusion. It cannot be contended with any degree of logic that when the first jet aircraft flew from the Los Angeles International Airport in 1959 a cause of action arose at that time. It is true that the evidence before this Court demonstrates that the same type of jet aircraft engine, regardless of the number of flights and regardless when tested, makes the same broad-band noise in the sound spectrum and will produce the same numerical rating in terms of frequency in cycles per second and intensity decibels. However, the annoying, irritating and offensive factors involved in jet engine noise, insofar as interference with residential living is concerned, come into significant play because of the multiplication of the number of flights and the hours during the day or night when such flights take place. The number and timing of flights, as has been indicated before, become important because of the increased chances and opportunities for interference with normal communication and sleep, together with the ear's simple dislike of the type of noise generated by jet engines.
The increase in the number of jet landings and takeoffs at the Los Angeles International Airport has been a gradual development from year to year since 1959. With this gradual process taking place, the issue to be decided is, at what precise month and year did the jet noise become so offensive and annoying that it substantially diminished the market value of plaintiffs' properties so as to create a cause of action for damages in inverse condemnation? It is without dispute and a matter of common knowledge that persons living near major airports have disliked the sounds emanating from the whining and screaming jets almost from the moment of their introduction. The evidence in the case at bench is to the effect that beginning with the year 1959 persons living within NEF Area "C" began to complain to Los Angeles city officials and other government officials about the noise from jet aircraft. The evidence also proves that in 1959 citizens adjacent to the Airport formed a Citizens Health and Welfare Council for the purpose of determining whether or not some group action was available because of the jet aircraft-noise condition. Individual plaintiffs attended meetings of this property owners' group from time to time, and individual plaintiffs joined the organization at various times. There is indication that prior to 1963 some of the plaintiffs may have believed that their properties were being reduced in market value by jet aircraft noise. Also, the Citizens Health and Welfare Council employed, prior to 1963, the attorneys who represent the plaintiffs in this case.
As the residents of the areas adjacent to the Airport made complaints to various government officials regarding the airport-noise situation, they were advised that steps to reduce the jet noise were being taken by groups such as the Los Angeles Airport Commission and the Sound Abatement Coordinating Committee, and that progress was being made in the direction of aircraft noise reduction and abatement. However, the combination of these matters and events does not establish that a cause of action for damages resulting from jet aircraft noise arose while these matters and events were taking place. A cause of action for damages to real property resulting from jet aircraft noise does not arise from a landowner's belief that his property has been damaged by such noise.During the time of the formulation of this opinion of damage by various plaintiffs, Los Angeles city officials and other government officials were indicating that steps were being taken to alleviate and abate the problem of jet aircraft noise.
One accepted and tenable view is that a cause of action for inverse condemnation arises at such time as the particular damage factor involved becomes stabilized. Applying this principle to jet aircraft noise as the damage factor, the inverse condemnation cause of action arises at such time when it can be said with some assurance that the annoyance factor of jet noise has become stabilized and has reached the point of causing the market value of the landowner's real property to be substantially reduced. This requires a factual determination. A landowner's personal opinion about whether and when his property became reduced in market value is of little assistance to the trier of fact unless the particular landowner is an appraiser, real estate broker or otherwise possesses expertise in the field of market-value determination.
Prior to the time when this stabilization of jet aircraft noise and its substantial effect upon the market value of real property have been reached, there is annoyance and irritation from jet aircraft noise and, at some point, a beginning effect upon the market value of real property, but this is noncompensable damage at this fluid state of events. How many flights per year, month or day must exist before the noncompensable annoyance and damage ripens into a cause of action? In Jensen v. United States, 305 F.2d 444 (Ct. Cl. 1962), the court espouses the view that the determination of when the point in time beyond noncompensable annoyance and damage is reached depends on making a judgment evaluating a variety of factors. The factors to be considered include "the frequency and level of flights; the type of planes; the accompanying effects, such as noise from falling objects; the use of the property; the effect on values; the reasonable reactions of the humans below; and the impact upon animals and vegetable life . . . ." (Jensen v. United States, supra, at p. 447.) In evaluating such factors, it is obvious that sound judgment and discretion must be exercised in order not to overstress some of these factors and neglect others. Some factors may be more critical than others under the circumstances involved.
That California has adopted this stabilization theory for determining when a cause of action arises for inverse condemnation is evidenced by the case of Pierpont Inn, Inc., v. State of California, 70 A.C. 293 (1969). In Pierpont Inn, a cause of action for inverse condemnation resulted from the construction and operation of a freeway. At the time constructionof the freeway began and at the time the landowner filed his claim with the state and commenced the action, section 644 of the Government Code required that a claim be presented to the State Board of Control "within two years after the claim first arose or accrued." The state contended that this statutory period began to run at the start of construction. The court, however, sustained the ruling of the trial court that the cause of action for inverse condemnation begins only when the situation is stabilized, and here the completion and operation of the freeway constituted the stabilization time, not the commencement of the work. Hence, the claims were filed within the appropriate time limit. In reaching this conclusion, the California Supreme Court recognized that "There is a paucity of authority dealing with the problem of determining the exact date upon which a claim or cause of action for inverse condemnation arises. Prior to the age of the freeway, most inadvertent or intentional trespasses by authorities with the power to condemn were of such a nature that there was only a relatively brief interval of time between the first invasion upon the land and the completion of the project itself. Such authority as does exist, however, supports the holding of the trial court herein." (Pierpont Inn, Inc., supra, at p. 298.) Aaron v. United States, 311 F.2d 798 (Ct. Cl. 1963), also involved the problem of determining at what point in time landowners were affected by the noise from flights over their lands from an airport to such an extent as to create a cause of action for inverse condemnation. In that case, the trial judge fixed August 1953 as the beginning period for the cause of action and the statute of limitations to start running.
It is conceded that since the introduction of jet aircraft there has been a gradual increase in the number of jet aircraft takeoffs and landings as the Los Angeles International Airport. The number of jet aircraft landings, exclusive of propeller jets which are not true jet aircraft, for the years 1960 through 1965 are as follows:
By mathematical computation, the above yearly numbers produce an average of daily landings for the same years as follows:
[1 ELR 20203]
The number of jet aircraft flights per day, month and year is obviously an important factor to be considered in determining when the noise situation stabilized to create a cause of action for inverse condemnation. A factor of even greater significance, however, is the difference in the character of the noise created by the pure turbojet engine and that created by the turbofan jet engine. The turbojet engine was introduced first. It has already been indicated that the jet aircraft engine produces a broad-band noise spectrum dominated, however, by high frequency sound components. This description has reference to the turbojet engine, which also may be referred to as the pure jet engine. The turbofan jet engine was introduced after the use of the turbojetengine. The turbofan jet engine constituted a significant improvement in thrust in relation to fuel consumption. The turbofan jet engine is generally considered a more efficient engine than the turbojet engine.
Unfortunately, however, the turbofan jet engine was not an improvement insofar as noise considerations are concerned. The turbofan jet engine produces essentially the same range of frequency components of sound as that produced by the pure or turbojet engine. The noise characteristics, however, of the two engines are startingly different. The turbofan engine introduced a noise characteristic which may be described as a monstrous siren effect and also a whining sound. Another pertinent description is to say that the turbofan engine introduced a propeller effect into the pure turbojet engine. Although the sound frequency range of the two engines is substantially the same, the active band levels in decibels are vastly different. The noise from the turbofan engine is much greater in intensity or magnitude. The common expression would be that there is a loudness feature of the turbofan engine over the turbojet engine by quite a large amount. Since there is a higher intensity or magnitude of sound from the high frequency components of the turbofan jet engine, the conclusion follows that the turbofan jet engine produces a much greater annoying, irritating and offensive effect than the pure or turbojet engine produces.
Studies of the two types of engines made with aircraft at an altitude of 300 feet during landing operations established that at that altitude the Effective Perceived Noise Level rating in decibels of the four-engine turbofan jet aircraft was 117.5, while the four-engine turbojet aircraft was rated at 112. Thus, the noise magnitude of the turbofan jet aircraft was 5.5 decibels higher than that of the turbojet or pure jet aircraft. This 5.5 decibel difference in the Effective Perceived Noise Level rating is highly significant in the effect of aircraft noise upon the human reaction to sound. It has previously been pointed out that an increase of 10 decibels in noise level is considered as a doubling of the annoyance and irritating effect of noise. In view of this relationship, an increase of 5.5 decibels in the noise level caused by the use of the turbofan jet engine means that the turbofan jet noise constitutes a 55 percent increase in annoyance and offensiveness to residents affected over that produced by the turbojet aircraft. This means also that the screaming and whining sounds produced by turbofan jet aircraft have caused a 55 percent increase in interference with speech communication, telephone communication and radio and television reception.
Plaintiffs introduced evidence of a comparison of jet aircraft landings per day at the Los Angeles International Airport for the months of May and October of 1962 and for the months of May and October 1963, with particular reference to the percentage of fan jet aircraft to the total number of jet aircraft. This study revealed that in the month of May 1962 there were 121 daily jet landings, of which 34 were fan jet aircraft, which constituted 28 percent of the daily jet landings for that month. In October 1962, the daily landings of all jet aircraft were 133 in number, of which 53 were fan jet aircraft, constituting 40 percent of the total jet aircraft landings. In the month of May 1963, the number of landings per day of all jet aircraft was 148, of which 78 were fan jet aircraft, constituting 53 percent of the total jet aircraft daily landings. In the month of October 1963, the total number of daily jet aircraft landings was 156, of which 84 were fan jet aircraft, constituting 54 percent of the total daily jet aircraft landings. This study indicates a substantial increase in the annoyance and offensive features of jet aircraft in 1963 over 1962. The daily landings of jet aircraft increased from 121 in May of 1962 to 148 in May of 1963. In the same yearly period, the number of fan jet aircraft increased from 34 to 78, which is more than a doubling of the number of daily fan jet aircraft landings.The percentage of fan jet aircraft out of the total of all jet aircraft increased from 28 percent to 53 percent during this same one-year period. The total increase in all jet aircraft landings in May of 1963 as compared to May of 1962 means there was a corresponding increase in the number of occurrences of irritating jet noise resulting solely from the increase in the number of aircraft flights. However, the more than doubling of the number of fan jets operating in May of 1963 over the number operating in May of 1962 introduced not only the greater frequency of annoying and irritating noise but also a greater annoyance effect because of the increase in the magnitude of the noise resulting from the greater use of fan jet engines in jet aircraft. Because of the two factors of an increase in the number of flights of all jet aircraft and an increase in the noise magnitude or intensity from the larger number of fan jet aircraft being used, the conclusion follows that from the standpoint of human body reaction, the annoyance effect from jet aircraft in 1963 was approximately three times greater than it was in 1962.
It appears that the month of May 1963 is the most important consideration in comparing the year 1963 with the year 1962 with respect to jet aircraft noise effects. From May 1963 to October 1963 the change in the number of daily fan jet aircraft being used was slight, and the percentage of fan jet aircraft to total jet aircraft changed only slightly. During this five-month period, the total number of daily fan jet flights changed from 78 to 84, while the percentage of fan jet aircraft to total jet aircraft changed only from 53 percent to 54 percent. It thus appears that as of May 1963, primarily because of the increase in the use of fan jet aircraft, the annoyance and offensive features of jet aircraft became stabilized. Testimony of the real estate appraisers for plaintiffs was to the effect that market prices of real property within NEF Area "C" showed a noticeable drop in 1963 compared to market prices in 1962. A finding is thus made by this Court that noise from jet aircraft, as it interfered with residential living and substantially affected the market value of real property in the area described as NEF Area "C," became stabilized in the month of May 1963. This is the date which this Court finds to be the time of accrual of plaintiffs' cause of action for damages for inverse condemnation. The claims of the plaintiffs filed with the defendant City in January and February of 1964 were filed, therefore, within the time required by law. It follows that plaintiffs' cause of action is not barred by any statute of limitations provisions of the Code of Civil Procedure relied upon by defendant City.
Another defense urged by defendant City is that public convenience and necessity for more than five years preceding the filing of the complaint required, and still requires, the use of the airspace over and adjacent to the propertiesof plaintiffs for public aviation purposes. We all recognize that jet aircraft is a modern necessity and convenience for public travel. Some inconvenience, discomfort and annoyance from the noise of such aircraft must be borne and tolerated by citizens as part of urban living. There is a limit, however, to the annoyance and damage from aircraft noise which residents must tolerate and bear without compensation. This limit is reached as to those property owners located in the vicinity of the flight paths of the landing and takeoff aircraft who suffer from jet aircraft noise out of proportion to other residents of the community who are inconvenienced and annoyed by jet aircraft noise. Public convenience and necessity cannot be permitted to justify the damaging, without compensation, of the property of persons living in close proximity to the landing and takeoff aircraft patterns. However, because of the great public convenience and necessity for jet aircraft and air travel, the public in general who benefit from the existence of jet aircraft and air travel must pay for this convenience and necessity through the compensation allowed to the few who are damaged by virtue of the chance selection of their place of abode.
We now come to the question of whether there has been proof of substantial diminution in the market value of the various parcels of property involved in this case. We have the testimony of two real estate appraisers for the plaintiffs. The approach of the appraisers for the plaintiffs was to select comparable areas not affected by jet aircraft noise, consider sales of comparable property in the unaffected areas, and then determine a fair market value of plaintiffs' parcels as of the year 1963, assuming that such parcels were not affected by aircraft noise. Then the appraisers considered 1962 and 1963 sales of comparable properties located within the area designated NEF Area "C" and reached an opinion of the fair market value of plaintiffs' parcels in the year 1963 as affected by jet aircraft noise. Using this difference in the fair market value of the plaintiffs' parcels of property as if they were not affected by the jet aircraft noise, an opinion was reached as to the damage in terms of the dollar amount of the diminution in market value. On the other hand, the defendant City offered evidence to establish that there had been no diminution in market value of the plaintiffs' properties because of noise from jet aircraft.
The approach and opinions of plaintiffs' appraisers leave much to be desired. Thus, in seeking and using comparable properties in areas not [1 ELR 20204] affected by jet aircraft noise, no consideration was given to the fact that plaintiff owners originally purchased their properties in the areas adjacent to the Airport and in the vicinity of the flight paths of propeller-driven aircraft. Such a location made these homes less desirable than residences located on quiet streets unaffected by noise from freeways, busy streets or commercial development, which were used as unaffected comparable areas. For most of the parcels of property appraised, plaintiffs' appraisers reached opinions of a range of market values, both as unaffected by jet noise and as affected, rather than a single value. As an illustration, an opinion was stated that a particular parcel had an affected market value of $22,000 to $24,000 and an unaffected market value of $25,000 to $27,000. Then a single damage figure was given, such as $2,000. The testimony indicated that the range of market values developed because one appraiser's opinion was the lower figure in the range, and the other appraiser's opinion was the higher figure. The appraisers were unable to testify as to which appraiser used the lower figure and which the higher figure. The testimony was that they appraised all of the properties as a team, but at the time of trial, they had no memoranda or recollection of the separate opinon as to market value of each appraiser. The dollar amount agreed upon as the amount of damages for each parcel appraised appeared to be a compromise reached by the two appraisers, in many instances, as the dollar amount of damages did not coincide with a figure reached by simply subtracting the market values as affected from the market values as unaffected.
The combined approach and compromise of the two appraisers for plaintiffs placed the Court in a difficult position in evaluating the opinions of the two appraisers. It would seldom happen in a trial that the opinions of two appraisers would be given equal weight by the trier of fact. Had each appraiser given his separate opinion of value, the plaintiffs' evidence of damages would have been more credible. In dealing with the appraisal of apartment houses and rental units as contrasted with single-family homes, plaintiffs' appraisers at no time used the two methods of a reproduction cost approach or the capitalization of income approach, even though in many instances it was conceded that sales of comparable properties were not readily available. Also, in the appraisal of some rental units, plaintiffs' appraisers applied a gross multiplier method for the purpose of aiding them in the formulation of their opinions of value. It is true that this method does have some usefulness in the market place, but it is subject to the criticism that it is too rough a measure to be given much weight in arriving at market value opinions. Also, in appraising some multiple units, plaintiffs' appraisers used a price per unit approach by computing the sales price per unit on sales of multiple units which were not really comparable to the apartment buildings being appraised. Opinions predicated on this approach are not entitled to a great deal of weight, since a per-unit sales price approach fails to adequately take into account varying factors, such as differences in sizes of units, in room size and arrangement and in the number of bedrooms per unit.
The approach of defendant City in presenting evidence tending to show that plaintiffs' properties were not reduced in market value by jet aircraft noise was entirely different from the approach of plaintiffs. An appraiser for defendant City testified and expressed an opinion that the residential properties in NEF Area "C" did not decrease in market value at all in 1963, and hence were not damaged by the noise from jet aircraft. The reasons given in support of this opinion were manifold. The City's appraiser made no appraisal of separate parcels of property. However, he studied that portion of NEF Area "C" east of the Airport, particularly with respect to factors of new construction of residential properties, loans made by lending institutions, whether rental units appeared to be fully occupied and whether the residential properties appeared to be well kept to indicate a pride of ownership and a healthy economic condition. All of these factors were considered for the years 1963 to 1968. For the years indicated, his testimony was that permits for new construction amounted to $8,957,956. These permits included 868 residential units, ofwhich there were 45 apartment houses, 63 duplexes, 67 single-family residences and 32 swimming pools. Loans were granted by lending institutions in substantial amounts on the various types of residential properties, from single-family to large apartment houses and for the construction of new swimming pools. The opinion of the City's appraiser was that all of these factors indicated that in the period 1963 through 1968 there was a healthy condition with respect to residential property in NEF Area "C," and that there was confidence in the real estate market on the part of persons owning residential property in this area. There was evidence tending to show that there were few "For Sale" or "For Rent" signs in this area, and no indication of any abnormal vacancy factor in rental units. The evidence disclosed that many parcels in NEF Area "C" sold on the open market fairly soon after they were listed for sale with real estate brokers, a further indication of an active real estate market. There can be no dispute that NEF Area "C" has continued to be fully utilized for residential purposes in spite of the noise from jet aircraft.
The opinion of the City's appraiser that property parcels involved in this case suffered no market damage at all from jet aircraft noise is based in part on the results of price-trend studies of sales and resales of parcels in selected portions of NEF Area "C" east of the Airport and sale and resale price-trend studies of parcels in comparable areas outside of NEF Area "C." Four selected portions of NEF Area "C" east of the Airport were considered. The most distant portion from the Airport is a section immediately west of Western Avenue. A second portion is located between Crenshaw Boulevard on the west and Van Ness Avenue on the east. A third portion studied is located west of Crenshaw Boulevard, with Doty Avenue being the westerly line and Yukon Avenue the easterly line. The portion closest to the Airport is located between Inglewood Avenue on the west and Mansel Avenue on the east. The three test areas outside of NEF Area "C" used by the appraiser include two areas south of NEF Area "C" and one area north of NEF Area "C." One of the southerly areas is in Inglewood south of 115th Street, between Crenshaw Boulevard on the west and Western Avenue on the east. A second test area is in Hawthorne south of El Segundo Boulevard, between Prairie Avenue on the west and Yukon Avenue on the east. The northerly test area may be described as the Overhill area, which is north of Slauson Avenue and immediately east of La Brea Avenue. The sales price-trend studies did not consider these sections separately. The three test areas were considered together, and the four portions of NEF Area "C" east of the Airport were considered together. The period covered by these sales price-trend studies was from 1955 to the first few months of 1969. The method used was to consider purchases or sales and resales of the same parcels of property during the period covered. The difference between the purchase price and resale price was taken, whether that constituted an increase or decrease in sales price. This difference was converted into a gross percentage increase or decrease over the original purchase price. The number of years elapsing between the date of purchase and the date of reasle was divided into the total percentage increase or decrease to obtain an average yearly price increase or decrease. For example, if a home had been purchased in 1960 for $25,000 and resold in 1964 for $30,000, the $5,000 difference constituted a 20 percent increase in sales price over the original purchase price. The four-year period between the purchase date and reasle date divided into 20 percent gives a five percent average annual increase in sales price. There were 341 sales sets considered in the selected portions of NEF Area "C" east of the Airport, which also included 179 sales sets of parcels of property involved in this case. The test areas contained 402 sales sets.
The appraiser for the defendant City expressed an opinion that the sales price trend studies indicated the same upward trend in sales prices for residential properties located in the portions of NEF Area "C" studied as was shown for residential properties in the test areas. The appraiser for the City testified that mathematically the sales price-trend studies indicated that in the portions of NEF Area "C" east of the Airport there was an average annual increase in sales prices of 4.57 percent for the period 1955 to 1969, and that in the test areas used for comparison with NEF Area "C" east of the Airport, the average annual increase in sales prices amounted to 4.96 percent for the same period of years.
The same kind of sales price-trend study was made by the City's appraiser for a portion of NEF Area "C" west of the Airport and covered, generally the beach community known as Playa del Rey. The portion of Playa del Rey considered as part of NEF Area "C" for this sales pricetrend study is from Killgore Street on the south to Sterry Street on the north. The test areas used to compare with the subject area of Playa del Rey included a portion of Playa del Rey north of Sterry Street and a portion of Pacific Palisades called the Castellamare area. This comparative sales price-trend study indicated an average annual sales price increase in the subject area of Playa del Rey of 5.89 percent. There was an average annual increase in sales prices for the test areas compared with the Playa del Rey area of 5.68 percent.
Among the factors to be considered in evaluating the merit and worth of an appraiser's opinion of market value is the degree of comparability of the areas and sales selected for comparison with the property being appraised. So, also, the value, validity and worth of conclusions to be drawn from comparative sales price-trend studies [1 ELR 20205] depend, in part, upon how truly comparable are the areas selected for the control or test areas. As a part of the two days spent by this Court in viewing the areas involved in this litigation, the Court viewed the various test areas used by the appraiser for the City and portions of areas used by the appraisers for the paintiffs to obtain their comparable sales. The Court found little comparability between the Castellamare area of Pacific Palisades and the subject Playa del Rey area located in the westerly portion of NEF Area "C." The subject Playa del Rey area appeared to the Court to be a much more desirable residential area than the Castellamare area, considering such factors as the ocean view, the size of the lots and the land topography.
In testifying regarding his visits through NEF Area "C" east of the Airport, the appraiser for the City said that he did not notice and was not particularly aware of the planes or of noise from them as they proceeded toward the Airport for landing. He testified that at no time did he have to stop talking because of any jet aircraft noise. This testimony is incredible. It is inconceivable to the Court, in view of what the Court saw and heard relative tothe flow of jet aircraft over NEF Area "C" to make their landings. How any person with normal sight and hearing could be in the area for any period of time and not be acutely aware of the flow of jet aircraft traffic and the screaming noise coming therefrom, is beyond comprehension.
In interrogatories submitted to plaintiffs by defendant and in answers to such interrogatories, information was given as to the date of purchase and the purchase price of the parcel involved, together with the sales date and sales price if the particular plaintiff had sold his parcel of property either before or subsequent to the commencement of the lawsuit. This information was given to the appraiser for the City, who testified that an analysis of this information indicated that there was a 4.01 percent average annual price increase of the plaintiffs' properties based on this submitted information. The appraiser for the City further testified that the sales price-trend studies would not indicate that any particular parcel of property had a market value as of any particular date; that the average annual price increase would not indicate any actual market price increase for any particular year, and that no inference could be drawn of whether there was a particular market price decrease or increase in any particular year involved in the period studied, which included the years 1962 and 1963. The appraiser for the City made clear that the average annual percentage price increase shown in the sales pricetrend studies would not lead to a conclusion that this percentage represented an actual percentage increase in the market value of property between the years 1962 and 1963.
Comparing the average yearly price increase of 4.57 percent for residential property located in the portions of NEF Area "C" east of the Airport with the average yearly price increase of 4.96 percent for the residential property located in the selected comparable control areas, the average yearly price increase for the portions of NEF Area "C" studied was 0.39 percent less than the average yearly price increase for the test areas. The period studied was from 1955 to the first few months of 1969. This constitutes a total period of fourteen years and a few months. If we consider the fourteen-year period as a whole and the average yearly difference in sales price increase of 0.39 percent between the subject area and the test areas, we find that the gross or total sales price increase in the subject NEF Area "C" east of the Airport was approximately 5.50 percent less than the gross sales price increase for the test areas. In view of the fact that the average annual percentage increase does not indicate the actual status of the real estate market in any particular year, the percentage increase for the entire fourteen-year period considered becomes significant. It might well be that the approximate 5.50 percentage difference in the sales price increase between the subject area and the test areas reflects this kind of percentage decline in real estate market prices in one particular year in the subject area. The fact that for the entire period studied there is this type of percentage difference lends support to the contention of plaintiffs that there was a substantial decrease in the market value of residential properties located in NEF Area "C" in the year 1963.
The contention of plaintiffs with respect to a diminution the market value of residential property within NEF Area "C" resulting from jet aircraft noise is likewise bolstered by the conclusions of the City's appraiser regarding the sales and resales of plaintiffs' parcels gathered from the interrogatories and answers thereto. The average annual sales price increase of 4.01 percent is considerably less than the average annual sales price increase of 4.96 percent obtained from the study of the test areas used by the appraiser. The average annual sales price increase of 5.89 percent found in the Playa del Rey portion of NEF Area "C" is higher than the average annual sales price increase of 5.68 percent found in the test areas used for comparison. In view of the Court's finding that the test areas used for comparative purposes with the Playa del Rey portions of NEF Area "C" exhibited considerable differences, a comparison of the two average annual percentage sales price increases is not particularly helpful. This comparison, therefore, does not demonstrate or lead to the conclusion that the properties in the Playa del Rey portion of NEF Area "C" were not adversely affected in market value by the noise from jet aircraft taking off from the Airport.
Comparing the average annual sales price increase of 5.89 percent in the Playa del Rey portion of NEF Area "C" with the average annual sales price increase of 4.57 percent in the portion of NEF Area "C" east of the Airport tends to indicate that the Playa del Rey community has had a much better real estate market condition than the communities east of the Airport. But this does not lead to a conclusion that noise from jet aircraft landings has a greater impact upon the real estate market than noise from jet aircraft takeoffs. The testimony of the experts on sound and noise indicates that there is very little difference between the Effective Perceived Noise Level rating of jet aircraft on takeoffs as contrasted with landings. Although the evidence convinces the Court that some residential property in the Playa del Rey portion of NEF Area "C" was adversely affected in market value by noise from jet aircraft in 1963, the evidence likewise establishes that the Playa del Rey community was not as seriously affected in market value depreciation as those areas located east of the Airport.
Another factor which concerned the Court in evaluating the appraisers' opinions in this case was the use of 1962 sales of comparable property within the subject area involved. The appraisers for the plaintiffs used 1962 sales along with 1963 sales of properties in NEF Area "C" to support their opinion of market value diminution in 1963 as a result of jet aircraft noise. They explained their use of 1962 sales by stating they considered such sales prices as indicating only a slight effect of jet noise upon market values as compared to 1963 comparable sales indicating a major effect of jet aircraft noise upon the market values, and that this difference was duly considered in aiding them to arrive at their opinions of the market values of the plaintiffs' properties being appraised as of 1963. No indication was ever given of how much, in terms of dollars or percentages, the 1962 comparable sales prices represented in depreciated market value from jet aircraft noise.
Since the time of the substantial effect upon market value from jet aircraft noise occurred in 1963, it would appear that a helpful method of determining the effect of jet aircraft noise upon market value in 1963 would have been to consider sales prices of property within NEF Area "C" which took place in 1961 and 1962 and compared those sales prices with sales prices of comparable property for the years 1963 and 1964. Such a comparison of sales prices should produce some reflection of the effect of jet aircraft noise upon the market value of properties located within the affected area. However, no effort was made by either the appraisers for the plaintiffs or the appraiser for the defendant City to use this approach of comparing sales prices within the affected area before the advent of jet aircraft noise with the sales prices of comparable property taking place after the advent of jet aircraft noise. One objection to this approach would be that there might be an absence of a sufficient number of sales of comparable properties to make such a comparison meaningful. But there was no testimony to indicate that there was any lack of comparable sales before 1963 to preclude using this approach to help support the opinion that market values were substantially affected by jet noise in 1963 or to support the opinion that there was no substantial effect upon market values in 1963 from jet aircraft noise.
The parties stipulated that one of the north runways of the Airport, designated 24L, was used sporadically from 1960 to 1967, and that not until 1968 did this specific runway go into regular use by jet aircraft. The parties also stipulated that the second north runway, the most northerly one, designated 24R, is not yet fully constructed and hence has never been in use. In view of this stipulation, it is apparent that property in the Playa del Rey community was not affected in 1963 by any jet aircraft takeoffs from the north runways of the Airport. Property located in the northerly section of NEF Area "C" in Playa de Rey are much closer to the north runways than they are to the south runways. These are factors which must be taken into account in determining whether these residential properties in Playa del Rey suffered any market value diminution in 1963. The evidence convinces the Court that these northerly located Playa del Rey parcels of property were not substantially [1 ELR 20206] adversely affected in 1963 by any jet aircraft noise. These are the parcels of property in Playa del Rey situated north of Century Boulevard. These parcels are too distant from the south runways to be materially affected by noise from jet aircraft taking off from these runways. We are not concerned in this case with the effects of noise from jet aircraft taking off from the north runway, 24L, beginning regularly in 1968.
Only a few of the approximately one thousand five hundred plaintiffs have testified in this case. Some of the plaintiffs who testified live in the Playa del Rey area and others live in the portion of NEF Area "C" that is east of the Airport. On the whole, their testimony related the annoyance features of jet aircraft noise upon normal communication in the home, upon enjoyment of radio and television programs, upon telephone communication and the effects of smoke, soot and debris left in the wake of jet aircraft.This evidence by the plaintiffs who testified was substantiated by the two appraisers for plaintiffs who testified to seeing and hearing the jet aircraft at each parcel of property they appraised.
Although the Court finds that most of the properties involved in this lawsuit and located in both the easterly and westerly portions of NEF Area "C" have suffered substantial damage by reason of jet aircraft noise culminating and stabilized in 1963, with respect to a number of the parcels of properties involved in this lawsuit, the plaintiffs have simply failed to establish that they have been substantially damaged by jet aircraft noise. Consequently, as to these properties, no recovery will be permitted.
It is the position of the defendant City that an award of compensation should carry with it the grant of an easement to the defendant City for jet aircraft flights as flyovers or flybys with respect to the particular parcel of real property. This result is dictated by the legislative recognition of such an easement found in section 1239.3 of the Code of Civil Procedure.
The question is raised, however, of whether such a flight easement in airspace is permanent so far as the damage to the property so affected is concerned. If the City is granted an easement as a result of compensation awarded to property owners, is there any recourse if the number of jet flights are increased or the character of the jet engines is changed so that the Effective Perceived Noise Level is increased, resulting in a further reduction in the market value of property over and above that found to exist by virtue of the judgment? The general law of easements would seem to have application in this situation. So long as the burden of the easement upon the property owner is not increased, there would be no basis for additional relief. However, if the property owner is able to establish that subsequent increases in the number of jet flights using the airspace or the character of the noise has changed so that there is a substantial increase in the Effective Perceived Noise Level, with a resulting further diminution in the market value of the affected property, the property owner should be entitled to recover the additional damage in such a case. The burden of proof would be upon the property owner to establish that there has been such an increase in the number of flights or a change in the character of the noise from factors in addition to, or separate from, the number of flights to justify a cause of action for additional damage. In this case, the award of compensation and the corresponding easement are determined for conditions existing in the year 1963.
Listed below in Schedule A are the parcels of real property which the Court finds to have been substantially damaged in terms of market value depreciation by noise from jet aircraft, and the amount of damage which the Court finds each parcel listed to have suffered as of May 1963. The parcels are listed in accordance with the designation given by the appraisers who testified for plaintiffs. The type of property is indicated by appropriate abbreviations. A single-family home is indicated by the abbreviation "S/F," and multiple-family property is identified by the number of nuits involved, such as a four-family property being identified with the abbreviation "4/U."
[Schedule A omitted. Copy available from Digest Fascimile Service, 1 ELR Dig. ]54[. Instructions for Digest Facsimile use appear at page 65000. — Ed.]
Set forth in Schedule B below is a list of parcels of real property with respect to which the Court finds the evidence to be insufficient to establish any market value loss or depreciation in 1963 as a result of noise from jet aircraft. Some of these parcels are located in NEF Area "C," while others are located in NEF Area "B." The abbreviations used in Schedule B are the same as those used in Schedule A, supra. To the extent that a cause of action was alleged with respect to any parcel of real property not set forth in either Schedule A or Schedule B, judgment is to be rendered against any plaintiff alleging an interest in such parcel, as no evidence was offered regarding damage to any parcels of property not set forth in either Schedule A or Schedule B.
[Schedule B omitted.Copy available from Digest Facsimile Service, 1 ELR Dig.  — Ed.]
The judgment to be rendered in this case will be an interlocutory judgment. Further proceedings must be conducted to determine which plaintiffs are entitled to a final judgment for damages with respect to the specific parcels of real property as set forth in Schedule A. The evidence disclosed that various plaintiffs sold their parcels of real property during the period from 1962 to the date of trial. It is alleged in the complaint that certain plaintiffs claim a right of action against defendant City of Los Angeles by virtue of being the owners in fee of their parcels of real property; that the rights of other plaintiffs exist by virtue of equitable ownership in their parcels of real property resulting from contracts of purchase, and that other plaintiffs claim a cause of action for damages by virtue of written assignments in their favor. The Court's determination herein that a particular parcel of real property has been damaged by noise from jet aircraft in a specified amount is not to be construed as a determination that any particular plaintiff is entitled to a final judgment in his favor. A particular plaintiff's right to receive the damage amount determined herein for a particular parcel of real property must be established in subsequent proceedings to be held in this case.
A judgment is to be prepared in accordance with the views expressed herein.
1 ELR 20196 | Environmental Law Reporter | copyright © 1971 | All rights reserved