Loma Portal Civic Club v. American Airlines, Inc.

This case arises out of the efforts of the owners of property near a public airport to enjoin certain flight operations. We hold that the refusal of the trial court to grant the injunction here sought was proper.

The use of large and powerful aircraft has created certain annoyances—noise, vibrations, and in some cases apprehension ■—to many people. The questions as to whether an individual should have redress for such annoyances, and, if so, under what theory and against whom, are very troublesome. These problems have become aggravated by the advent of jets, which are noisier than reciprocating engine craft and which require longer and shallower glide paths. (Anderson, Some Aspects of Airspace Trespass, 27 J. Air L. & Com. 341 , 348.) The problems are peculiarly acute for landowners near airports, who suffer not only from the increase in the general noise level but particularly from their proximity to the low-level flying which is a necessary part of takeoff and landing. On the other hand, the great public benefit, in terms of commerce, transportation and defense, which is derived from the use of jet aircraft is obvious..

Plaintiffs are individuals who reside in the Loma Portal area of San Diego, and a nonprofit corporation whose members are also residents of that area. Loma Portal lies to the west of

The FAA is directed to formulate policy and prescribe air traffic rules and regulations governing the use of navigable airspace ( 49 U.S.C. § 1348 ), including rules “for the protection of persons and property on the ground” ( 49 U.S.C. § 1348 (c)). (See generally Air Traffic and General Operating Rules, 14 C.F.R., subch. F (revised as of Jan. 1, 1964).) There is regulation of operations in the vicinity of airports. ( 14 C.F.R. § 91.85 .) According to the affidavit of the FAA’s Western Region Assistant Administrator, “the Agency, in cooperation with the aviation industry, has endeavored through engineering research and continued re-evaluation of aircraft operations to reduce the level of noise. Such studies with associated improvements are continuing today.”

The defendant airlines have FAA airworthiness certificates (under 49 U.S.C. § 1423 (c)) for each aircraft operated by them. Pacific Southwest Airlines has an FAA commercial operator certificate and the other lines have air carrier operating certificates (under 49 U.S.C. § 1424 ) and certificates of public convenience and necessity (under 49 U.S.C. § 1374 ), under which they are obligated to provide “safe and adequate” service (see 49 U.S.C. § 1374 (a)) to San Diego. Under their leases with the city, the airlines have the right to use the airport and all its appurtenances, including “the landing field and any extensions thereof or additions thereto . . . and all other conveniences for flying, landing and take offs. ...”

Although defendants’ affidavits might have been more explicit in certain respects, plaintiffs did not sufficiently plead, nor do they claim, that they can make out a ease on

Where a prima facie ease has otherwise been made out, an injunction will be granted only when such a remedy is appropriate, and in determining the availability of injunctive relief, the court must consider the interests of third persons and of the general public. (Rest., Torts, §§ 933, 942.) The national interest in commerce, transportation and defense is furthered by the operation of scheduled passenger, freight and postal jet carriage into and out of San Diego. The people of San Diego and of the State of California benefit from these operations. Plaintiffs do not contend that defendants’ operations are not in furtherance of the public interest.

It is well established that public policy denies an injunction and permits only the recovery of damages where private property has been put to a public use by a public service corporation and the public interest has intervened. (See People v. Ocean Shore Railroad, 32 Cal.2d 406 , 421 [ 196 P.2d 570 , 6 A.L.R.2d 1179 ]; Hillside Water Co. v. City of Los Angeles, 10 Cal.2d 677 , 688 [ 76 P.2d 681 ]; Gurnsey v. Northern Cal. Power Co., 160 Cal. 699 , 709 [ 117 P. 906 , 36 L.R.A.N.S. 185 ].) This principle is based upon the policy of protecting the public interest in the continuation of the use to

Numerous statutory provisions give us guidance in the ascertainment of the public policy here involved.

Congress has determined that "There is recognized and declared to exist in behalf of any citizen of the United States a public right of freedom of transit through the navigable airspace of the United States” ( 49 U.S.C. § 1304 ), which is defined to include “airspace needed to insure safety in take-off and landing of aircraft.” ( 49 U.S.C. § 1301 (24).) Our own Legislature has provided, in section 21403 of the Public Utilities Code, that:

“(a) Flight in aircraft over the land and waters of this State is lawful, unless at altitudes below those prescribed by federal authority, or unless so conducted as to be imminently dangerous to persons or property lawfully on the land or water beneath. . . .

“(b) The right of flight in aircraft includes the right of safe access to public airports, which includes the right of flight within the zone of approach of any public airport without restriction or hazard. The zone of approach of an airport shall conform to the specifications of the Technical Standard Order of the Civil Aeronautics Administration of the Department of Commerce designated TSO-N18.”

Subdivision (b), which was added in 1957, was apparently enacted specifically to deal with flight operations in the vicinity of an airport, and, under accepted rules of statutory construction, should be interpreted as enlarging upon the right of flight which exists elsewhere. The provision that these flight operations, if conducted in conformity with federal law, shall be “without restriction” indicates a policy against interference with such operations by the injunctive process, a policy clearly called into play under the circumstances of this case.

Yet another indication of California policy in this area is found in section 731a of the Code of Civil Procedure. That section provides:

“Whenever any city, city and county, or county shall have

established zones or districts under authority of law wherein certain manufacturing or commercial or airport uses are expressly permitted, except in an action to abate a public nuisance brought in the name of the people of the State of California, no person or persons, firm or corporation shall be enjoined or restrained by the injunctive process from the reasonable and necessary operation in any such industrial or commercial zone or airport of any use expressly permitted therein, nor shall such use be deemed a nuisance without evidence of the employment of unnecessary and injurious methods of operation. . . .” (Italics added.) The italicized words, making the statute expressly applicable to airport uses, were added in 1959, and indicate an intent that such uses be favored in this state and are not to be enjoined unless it is clearly established that such uses are being carried out in both an unnecessary and injurious manner.

It is clear, therefore, that it would be contrary to the policy of this state to grant an injunction against flight operations in the vicinity of a public airport, conducted by regularly scheduled, certificated airlines, not alleged to be conducted in violation of federal orders and regulations or in an imminently dangerous manner, and not alleged to be carried on in a manner inconsistent with the public interest inhering in the continuation of such service. Anderson v. Souza, 38 Cal.2d 825 [ 243 P.2d 497 ], which permitted an injunction at the instance of adjoining landowners, is not inconsistent herewith. In that case, in which the defendants were the operators of the airfield, the court expressly pointed out that it was dealing with a private airfield, “the establishment of which requires no finding by any public agency of public convenience and necessity.” (Anderson v. Souza, supra, at p. 842.)

We note, too, that there exists an extensive array of enforcement devices available to the federal authorities for preventing and punishing violation of federal law, and that such proceedings may be initiated by complaint of any interested party. (See generally 49 U.S.O. §§ 1429, 1471-1474, 1481-1489.) To be sure, this in itself would not preclude an injunction under state law, for the state court is concerned not with providing an additional sanction for the enforcement of federal law, but with the protection of state-created rights. But it is a factor to be considered.

Nothing herein is intended to be a determination of the

Defendants, in addition, vigorously urge that the refusal to grant the injunction can also be supported on the ground of federal preemption, i.e., that state action affecting any aspect of flight operations is precluded by the extensive pattern of federal regulation in this field. We are not persuaded of the soundness of this contention. A holding of federal preemption would have the effect of disabling the state from any action in the entire field, and placing in the federal government complete and sole responsibility for regulation of all aspects of that field. Such a holding by a single state court would have, of course, no effect on the conduct of other states with respect to regulation of that field, and unless Congress had in fact intended such preclusion of state regulation and were to carry out its responsibilities, there would result within that state a lacuna which the state would be powerless to fill. As was said in Charles Dowd Box Co. v. Courtney, 368 U.S. 502 , 505 [ 82 S.Ct. 519 , 7 L.Ed.2d 483 ], quoting from the opinion of the Massachusetts Supreme Judicial Court: “In the absence of a clear holding by the Supreme Court of the United States that Federal jurisdiction has been made exclusive, we shall not make what would be tantamount to an abdication of the hitherto undoubted jurisdiction of our own courts.”

Preemption is, of course, a matter of legislative intent. In ascertaining this intent, with respect to the federal-state field, the test applied by the courts is whether the enforcement of state law would conflict with the purposes of the federal legislation, whether by frustrating an affirmative federal purpose or by interfering with a matter intentionally left unregulated by Congress. It is far from clear that every

The definition and adjustment of property rights and the protection of health and welfare are matters primarily of state law, and only a strong federal interest, as determined by Congress, will necessitate infringement upon state-created rights in these areas. Only a compelling federal interest, e.g., where the state-created liability would clearly frustrate federal purposes, justifies our implying an intent on the part of Congress to nullify common-law rights normally in the state-law sphere. In People v. Western Air Lines, Inc., 42 Cal.2d 621 , 645 [ 268 P.2d 723 ], we said, “Any doubts on the subject should be resolved in favor of state power for the principal reason, as stated, that the regulation of intrastate fares of common carriers traditionally has been subject to state regulation.” In California Oregon Power Co. v. Superior Court, 45 Cal.2d 858 [ 291 P.2d 455 ], we rejected a claim of preemption, despite regulation under the Federal Power Act (which, like the Federal Aviation Act, has a saving clause) of dams on navigable streams, and held that a state court had jurisdiction to entertain an action by the state to abate a nuisance. It was noted that “Here we are concerned with the abatement of a nuisance, in a sense a local police measure.” (At p. 868; see also Northern Cal. Assn, to Preserve Bodega Head & Harbor, Inc. v. Public Utilities Com., ante, p. 126 [ 37 Cal.Rptr. 432 , 390 P.2d 200 ].)

Here we have an expression of the intent of Congress. The Federal Aviation Act expressly declares that “Nothing contained in this chapter shall in any way abridge or alter the remedies now existing at common law or by statute, but

The imposition of state personal property taxes on aircraft operating in interstate commerce is permissible. (Braniff Airways, Inc. v. Nebraska etc. Board of Equalization & Assessment, 347 U.S. 590 [ 74 S.Ct. 757 , 98 L.Ed. 967 ]; in this case it was noted that many states have aeronautics acts (see, e.g., Pub. Util Code, § 21001 et seq.) and that these are not precluded by federal legislation in the field.) Also, state courts may entertain wrongful death actions against airlines. (Porter v. Southeastern Aviation, Inc., 191 P.Supp. 42; Southeastern Aviation, Inc. v. Hurd, 209 Tenn. 639 [ 355 S.W.2d 436 ], appeal dismissed, 371 U.S. 21 [ 83 S.Ct. 120 , 9 L.Ed.2d 96 ] (“for want of a substantial federal question”) (intrastate airline).) The presence of a federal license is not of independent significance. (See Huron Portland Cement Co. v. City of Detroit, 362 U.S. 440 [ 80 S.Ct. 813 , 4 L.Ed.2d 852 , 78 A.L.R.2d 1294 ], noted at 74 Harv.L.Rev. 132 .) In Huron, it was held that the 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. And in Anderson v. Souza, supra, 38 Cal.2d 825 , 839, we held that the federal declaration with respect to navigable airspace did not divest property owners of their rights.

Allegheny Airlines v. Village of Cedarhurst, 238 F.2d 812 , which contains broad preemption language, is not contrary to our conclusions. That ease held invalid an ordinance prohibiting flights over the village at altitudes below 1,000 feet. Despite the preemption language, however, the court was there dealing with an ordinance which “plainly conflicts with the federal statutes and regulations” (id., at p. 814). Moreover, that action, in the words of the trial court, did “not affect the rights of property owners”; their claims, based on nuisance and trespass, had been withdrawn (Allegheny Airlines v. Village of Cedarhurst, 132 F.Supp. 871 , 873). In fact, there had been a specific finding that there was “no evidence that the operations constitute a trespass or nuisance to the people of the Village” (Allegheny Airlines v. Village of Cedarhurst, supra, 238 F.2d 812 , 816). Nor did City of Newark, New Jersey v. Eastern Airlines, Inc., 159 F.Supp.

In conclusion, we hold that an injunction to prohibit a nuisance was properly denied, as a matter of law, under the circumstances of this case, because there is an overriding public interest in the operation of aircraft with federal airworthiness certificates in federally certificated, scheduled passenger service, in a manner not creating imminent danger, and in accordance with applicable statutes and regulations.

The judgment is affirmed.

Gibson, C. J., Traynor, J., Tobriner, J., and Peek, J., concurred.

Sehauer, J., and McComb, J., concurred in the judgment.

Appellants’ petition for a rehearing was denied September 10,1964.