Spar v. Pacific Bell

235 Cal. App. 3d 1480, 1 Cal. Rptr. 2d 480, 91 Cal. Daily Op. Serv. 9038, 91 Daily Journal DAR 14101, 1991 Cal. App. LEXIS 1304

• Court: California Court of Appeal
• Decided: November 14, 1991
• Docket: B045617
• Status: Published

Opinions

Opinion

WOODS (Fred), J.

—Canord Investment Company¹ appeals from the trial court’s judgment which held, because respondent Pacific Bell’s telephone facilities were a permanent nuisance, plaintiff’s cause of action was barred by the three-year statute of limitations for a permanent nuisance/trespass. Plaintiff contends the nuisance was instead continuing and, therefore, its cause of action was not barred by the statute of limitations. We find the trespass/nuisance to be permanent in nature, barred by the statute of limitations, and therefore affirm the judgment of the trial court.

Facts and Proceedings Below

In April 1988, Canord Investment Company filed suit against Pacific Bell, a public utility, for trespass and nuisance. Both theories of recovery were based on the existence of telephone lines and equipment which defendant buried under plaintiff’s property in 1963. Defendant’s amended answer asserted the affirmative defenses that it had acquired the right to maintain the facilities on the property as a prescriptive easement and also, that the three-year statute of limitations for a permanent trespass/nuisance had run at the time plaintiff filed its claim. Defendant also cross-complained for ejectment and for compensation under the doctrine of good faith improvement of another’s property.

Prior to trial, defendant removed the facilities (conduits, wires, and manhole) from the property in response to plaintiff’s demands.

The trial court bifurcated the trial and considered the statute of limitations and prescriptive easement defenses first. The trial court found defendant had placed the facilities under the property in 1963. The parties agreed the facilities had been situated under plaintiff’s property. The facilities started at an easement, which defendant had along the adjoining public street, then turned and went under the adjacent private property, now owned by plaintiff. The facilities deviated beyond the easement and onto plaintiff’s property from as little as twelve to sixteen inches in some places, to as much as ten to fifteen feet in other places.

The evidence also showed the facilities were intentionally placed by defendant to provide telephone service for the public indefinitely. An employee for defendant Pacific Bell testified the facilities were intended to be serviceable for at least 100 years. Heavy equipment was required to install the new equipment and remove the old facilities which were buried 10 feet underground with dirt tightly compacted around them. Plaintiff had no knowledge of the facilities until 1987 when it decided to build a shopping center on the property. Defendant admitted it had no recorded easement for the facilities to remain on the property.

The trial court ruled: (1) the elements of prescription were not established by the evidence, and (2) plaintiff’s claims were barred by the three-year statute of limitations for a permanent nuisance/trespass. The court explained because it was the intent of defendant for the facilities to remain indefinitely, the facilities were a permanent nuisance/trespass upon which the three-year statute of limitations had run at the time plaintiff filed its claim. (Code Civ. Proc., former § 338, subd. 2.)

Plaintiff appeals from the trial court’s ruling on the ground it was error to find the nuisance/trespass permanent rather than continuing in nature, and, as a continuing nuisance, the statute of limitations would not bar the present action.

Discussion

I. The Distinction Between Permanent and Continuing Nuisances

In nuisance law, two classifications have emerged which determine the remedies available to injured parties and the applicable statute of limitations. The two primary classifications are permanent and continuing nuisances. Clear-cut distinctions between permanent and temporary nuisances are elusive at best. As one commentator noted: “In a number of cases courts have drawn a distinction between damages that are permanent and those that are temporary, allowing recovery of diminished market value where the injury was permanent and allowing cost of repairs where it was temporary or repairable at reasonable cost. In other situations courts have drawn a confusingly similar, but actually quite different distinction. This is the distinction between permanent sources of damage, such as nuisances or trespasses that cannot or will not be abated, and temporary sources of damage, such as nuisances or trespasses that will naturally terminate or those that will be terminated by court order. Courts sometimes overlook the distinction with resulting confusion. In any event, the distinction is difficult to apply and is worth careful attention.” (Fns. omitted; original italics.) (Dobbs, Remedies (1973) § 5.4, p. 335.)

The lack of definitive guidelines for distinguishing between temporary and permanent nuisances/trespasses, prompted the following treatise comment:

“In fact, it has been said that the terms temporary and permanent nuisance are, in reality, often only short-hand conclusions to determine the outcome of a particular case or the legal effects of certain defenses, such as the statute of limitations. Thus, it is often difficult to distinguish between nuisances that are permanent in character and those that are not.

“Various rules or tests have been laid down for determining the classification of nuisances as permanent or temporary, but the distinctions between permanent nuisance and continuing or temporary nuisances are not always clearly delineated, and no short and all-inclusive rule or test has evolved. Rather, it seems that the cases must be decided in accordance with exact precedents rather than on principle. In many instances the distinction depends upon the particular facts, the measure of damages, whether the condition is negligently operated, or whether it is reasonably practicable for the condition to be abated.” (Fns. omitted.) (58 Am.Jur.2d, Nuisances, § 26, p. 688.)

We now review the legal precedents that have evolved in California jurisprudence. In Kafka v. Bozio (1923) 191 Cal. 746, 750-751 [218 P. 753, 29 A.L.R. 833], the court held, “Where a trespass consists of a physical entry upon the lands of another and taking possession thereof under such circumstances as to indicate an intention that the trespass shall be permanent, the law may regard the wrong done in such case as complete at the time of entry and allow recovery in a single action of all damages resulting therefrom, including prospective as well as past damages. ... In such a case the statute of limitations runs from the time of the original entry.”

Cases which have found the nuisance complained of to be “unquestionably permanent” in nature have involved solid structures, such as a building encroaching upon the plaintiff’s land. (Troeger v. Fink (1958) 166 Cal.App.2d 22 [332 P.2d 779]; Rankin v. DeBare (1928) 205 Cal. 639 [271 P. 1050].) (See also Bertram v. Orlando (1951) 102 Cal.App.2d 506 [227 P.2d 894, 24 A.L.R.2d 899] [concrete piers which extend across the common boundary line]; Williams v. Southern Pacific R.R. Co. (1907) 150 Cal. 624 [a steam railroad operating on plaintiff’s land]; and Field-Escandon v. DeMann (1988) 204 Cal.App.3d 228 [251 Cal.Rptr. 49] [a buried sewer line running through plaintiff’s property].)

It has been stated “[t]he clearest case of a permanent nuisance or trespass is the one where the offending structure or condition is maintained as a necessary part of the operations of a public utility.” (Spaulding v. Cameron (1952) 38 Cal.2d 265, 267 [239 P.2d 625]; see also, 3 Witkin, Cal. Procedure (3d ed. 1985) Actions, §§ 423-424. pp. 456-458; 58 Am.Jur.2d, Nuisances, § 27, p. 688 [a permanent nuisance is of such a character as it will be reasonably certain, or will be presumed, to continue indefinitely, or affect the value of tiie property permanently].)

In cases of a permanent trespass or nuisance, the damages are complete when the nuisance comes into existence and plaintiff is required to bring one action for all past, present and future damages within three years after the permanent nuisance/trespass has occurred. (Rankin v. DeBare, supra, 205 Cal. at p. 641.)

In contrast, the two primary characteristics of a continuing nuisance or trespass are: (1) the nuisance/trespass is abatable, and/or (2) the damages from the nuisance/trespass may vary over time. “[If] an encroachment . . . is abatable, the law does not presume that such an encroachment will be permanently maintained. The maintenance of such an encroachment is a continuing trespass or nuisance.” (Kafka v. Bozio, supra, 191 Cal. at p. 751 [Encroachment by defendant’s building progressively leaning over plaintiff’s adjacent property line was an abatable and therefore continuing nuisance/ trespass.].)

Classic examples of a continuing nuisance include an ongoing or repeated disturbance where damages may vary over time, such as a nuisance caused by noise, smoke, and vibrations from airplane flights over homes (Baker v. Burbank-Glendale-Pasadena Airport Authority (1985) 39 Cal.3d 862 [218 Cal.Rptr. 293, 705 P.2d 866]), property contaminated by hazardous waste by the prior owner (Mangini v. Aerojet-General Corp. (1991) 230 Cal.App.3d 1125 [281 Cal.Rptr. 827]), and a dairy whose noxious odors pervade surrounding properties (Wade v. Campbell (1962) 200 Cal.App.2d 54 [19 Cal.Rptr. 173, 92 A.L.R.2d 966]). Even such a trespass as a locked gate placed by a city barring access to a public road has been held to be a continuous nuisance or trespass because it was removable. (Phillips v. Pasadena (1945) 27 Cal.2d 104 [162 P.2d 625].)

In these instances, “persons harmed by [the continuing nuisance] may bring successive actions for damages until the nuisance is abated. [Citation.] Recovery is limited, however, to actual injury suffered prior to commencement of each action. Prospective damages are unavailable.” (Baker v. Burbank- Glendale-Pasadena Airport Authority, supra, 39 Cal.3d at p. 869.)

In determining whether a nuisance/trespass is continuing in nature, a few cases emphasize the characteristic of whether the damages may vary over time. (See, e.g., Field-Escandon v. DeMann, supra, 204 Cal.App.3d at p. 234 [“The salient feature of a continuing trespass or nuisance is that its impact may vary over time.”].) Most cases, however, analyze the condition to determine whether the nuisance/trespass may be discontinued. In fact, our Supreme Court has determined the crucial distinction between a permanent and continuing nuisance is whether the nuisance may be discontinued or abated at any time. (Baker v. Burbank-Glendale-Pasadena Airport Authority, supra, 39 Cal.3d at p. 869; Kornoff v. Kingsburg Cotton Oil Co. (1955) 45 Cal.2d 265, 270-271 [288 P.2d 507]; Spaulding v. Cameron, supra, 38 Cal.2d 265, 267; Phillips v. Pasadena, supra, 27 Cal.2d at p. 107; Kafka v. Bozio, supra, 191 Cal. at p. 751.)

By the above comparison of cases in which the courts of California have found a permanent nuisance/trespass on the one hand and a continuing nuisance/trespass on the other, we are compelled to come down solidly in favor of a permanent nuisance/trespass in this case by reason of the long standing permanent nature of these underground telephone utility lines.

We now turn to a discussion of the fact of voluntary removal of the underground telephone lines by the defendant.

II. The Plaintiff Should Not Have Been Allowed to Elect Whether to Treat This as a Continuing Nuisance

The nuisance/trespass complained of in this case has overwhelming characteristics of a permanent nuisance or trespass. The facilities were intentionally placed to provide service to the public indefinitely. An employee of defendant testified the facilities were intended to be operable for at least 100 years. It required considerable effort and heavy equipment to install and remove the facilities, which were 10 feet underground encased in tightly compacted dirt. Lastly, because defendant is a public utility, it might have been able to keep the facilities on plaintiff’s property by paying just compensation to plaintiff. (See, Spaulding v. Cameron, supra, 38 Cal .2d at p. 267.)

The solitary fact in this case to hint that the nuisance/trespass was continuing was the voluntary removal and relocation of the telephone utility line by the defendant. We do not know from the record the reason for this voluntary act and refuse to speculate as to the exact reason for this act. We cannot say that this solitary fact either transformed the nuisance into a continuing nuisance or brought into play the benefit of the “close case” election to be afforded to the plaintiff.

An example of a case where the court allowed an election is Kornoff v. Kingsburg Cotton Oil Co., supra, 45 Cal.2d 265. Just as the plaintiffs in Komoff were given the opportunity to elect whether to treat a cotton gin as a permanent or continuing nuisance, the trial court in the present case was presented with the same alternative.

In Komoff, defendants operated a cotton gin six months out of the year. During the ginning season large quantities of fumes, dust and sediment were emitted into the air and penetrated into plaintiff’s home. Komoff is a classic case of a continuing nuisance because the nuisance was ongoing and repeated yearly with the possibility of the damages varying over time. However, the plaintiffs elected to treat it as a permanent nuisance, thus asking for past, present, and future damages. The court allowed the election and explained a plaintiff should not be forced to bring successive actions even though it is highly improbable the nuisance will be abated. (45 Cal.2d at p. 271.) But there is nothing in Komoff to suggest that a plaintiff has an unbridled election in every case to elect whether to treat a nuisance as permanent or continuing. The proper analysis appears to be that a permissible election is dependent on whether the case is a “close” one pertaining to the permanancy of the encroachment. A cotton gin which intermittenly spews impurities appears in ail respects to be a close call bringing into play the close case election to be afforded a plaintiff.

But, plaintiff in the present case is not presented with a factually close case. As previously discussed, it is difficult to imagine a more permanent encroachment than a telephone conduit buried 10 feet in the earth for approximately a quarter of a century, which is designed to have a useful life of 100 years. It would be straining reality to perceive this case as a close one.

In its ruling, the trial court relied on the decision in Field-Escandon v. DeMann, supra, 204 Cal.App.3d 228. In Field-Escandon the plaintiff sued the defendant for trespass because of a buried sewer line running through plaintiff’s property, aline which had been in existence for over 25 years. The pipe was the only sewer line servicing defendant’s house and without it the defendants would not have use of any plumbing facilities. The evidence submitted on the defendant’s summary judgment motion established the sewer pipe was intended to be a permanent structure for sewage disposal. The trial court granted defendant’s motion on the ground the sewer pipes were a permanent trespass, and, therefore, the three-year period had run over twenty years before and the action was barred by the statute of limitations. (Id., at p. 232.) The Court of Appeal affirmed the judgment.

In the present case, the trial court felt Field-Escandon was “on all fours” and felt compelled to rule the telephone facilities were also a permanent nuisance. We agree.

The similarities between this case and Field-Escandon are inescapable. For instance, both pipes were intended to be permanent structures. Both had been buried underground for over 20 years. Neither of the plaintiffs was aware of the underground condition. In Field-Escandon, the plaintiff discovered the trespass when plaintiff decided to build a retaining wall. The facilities in the present case were discovered when plaintiff began to build a shopping center.

The only difference between the two cases is the voluntary act of defendant in abating the nuisance.

In sum, because the nuisance/trespass in the present case had characteristics which were overwhelmingly permanent, we conclude plaintiff should not have been allowed to elect to treat the encroachment as a continuing rather than a permanent nuisance.

Disposition

The judgment is affirmed. Respondent to recover costs of appeal.

Lillie, P. J., concurred.

1 Plaintiffs and appellants are partners in Canord Investment Company and hereafter will be referred to in the singular.