# Anderson v. Souza

> California Supreme Court · April 24, 1952 · 38 Cal. 2d 825

URL: https://www.frixlaw.com/law-library/cases/9550605

## Case

- **Full name:** ARVID G. ANDERSON Et Al., Respondents, v. JOHN J. SOUZA Et Al., Appellants
- **Court:** California Supreme Court
- **Decided:** April 24, 1952
- **Citations:** 38 Cal. 2d 825; 243 P.2d 497; 1952 Cal. LEXIS 224
- **Precedential status:** Published
- **Opinion:** Dissent by Carter
- **Judges:** Schauer, Carter
- **Cited by:** 44 later opinions in the Frix Law Library

## Citator (automated)

- No negative treatment found by the automated citator. That is not the same as a confirmation that the case is good law; read the citing cases.
- Full citator and citing cases: https://www.frixlaw.com/law-library/cases/9550605

## Opinion text

CARTER, J.
I dissent.
I agree with everything in the majority opinion of this court except its conclusion that a permanent injunction should not have been granted. The trial judge who heard the evidence, saw the witnesses, and viewed the maps and photographs, was of the opinion that the airfield could not be so operated that it would not constitute a continuing nuisance as to plaintiffs.
Inherent in the majority opinion is the premise that plaintiffs had clearly shown that a nuisance existed as it undoubtedly did and will continue to exist. The trial court was of the opinion that the continued operation of the field “in its present condition, according to the evidence, (note that it was not only the manner in which the planes were operated) must inevitably result in continuance of the nuisance. The field is entirely too small to avoid the nuisance; and the runway is too close to the homes of some of the plaintiffs.” (Italics added.) Having heard the evidence, the trial judge was in a position to know that a permanent in *850 junction, was necessary to preserve the rights of these plaintiffs. A majority of this court, however, feels that this is much too drastic a step and reverses that portion of the judgment.
The landing strip on the airfield is laid out diagonally. The airstrip is 2,000 feet in length, just 200 feet beyond the minimum permitted by the United States Civil Aeronautics Administration. The majority states that there is no testimony to show that the runway is so short that planes could not lawfully operate from the field. Apparently the testimony was all to the effect that no planes did lawfully operate from the field and it is stated by a majority of this court that although defendants testified “that they had continually done all they could to prevent improper flying ... it is a fair inference that they either cannot or will not abate the nuisance themselves. This is significant in view of the fact that the action had been filed on August 7, 1947, and the case was tried beginning May 18, 1948." (Italics added.) It is conceded that a nuisance existed; that the plaintiffs proved their ease, but the judgment granting a permanent injunction is reversed. The reason assigned for this conclusion is that plaintiffs have not shown that it is impossible for the airfield to be “operated in a normal and usual manner.” If this is stated in another way, it means that plaintiffs are required to prove what defendants should be required to prove: That the airport can be so operated as not to create a nuisance. The injunction having been granted, it appears to me that it is now up to the defendants to prove that they are prepared to so operate their admittedly lawful business as to comply with the regulations this court has decided will constitute a lawful operation thereof. For example, “flight over the homes of plaintiffs at elevations below those set by federal authority could be forbidden; flight by flyers unable to comply with such a regulation by reason of inexperience could be forbidden; use of the airport by any type Or size of aircraft for which the court on competent evidence finds the airport inadequate, could be forbidden; flight except during daylight hours could be forbidden if necessary"; and “the advance of aeronautical science may make use of the field possible without injury to plaintiffs . . . defendants may acquire additional land and extend their runway.” And, as a complete answer, it is stated that “upon a proper showing of changed circumstances, the trial court may modify or dissolve the injunction"-—this undoubtedly refers to the “further *851 proceedings in harmony with the views expressed in the (majority) opinion.” (Italics added.)
It appears to me that under the “views expressed,” plaintiffs now must show defendants how to try to lawfully operate their airfield. Then, if the nuisance continues to exist, they must again go to court, prove the existence of the nuisance and receive money damages and a permanent injunction which would, in turn, probably be again reversed by a majority of this court. Up until now, it had always been my understanding that a single suit in equity took the place of many successive suits at law for damages with the court of equity ending by injunction the violation of the plaintiff’s rights which, together with recovery of damages sustained, settled the entire controversy in a single suit. Damages are clearly inadequate here; a permanent injunction is the only thing which will give plaintiffs the relief they seek, and the only thing which will prevent a multiplicity of suits.
It appears to me that the result reached by a majority of this court is in direct conflict with the usual procedure. It is uniformly recognized that where a final or permanent injunction has been granted, the court which granted it may dissolve or modify it where changes in circumstances or conditions warrant it (Santa Rita Oil Co. v. State Board of Equalization, (Mont.) 116 P.2d 1012 , 136 A.L.R. 757 ; Ladner v. Siegel, 298 Pa. 487 [ 148 A. 699 , 68 A.L.R. 1172 ]; Washington Water Power Co. v. City of Coeur d’Alene, (Idaho) 24 F.Supp. 790 ; Sontag Chain Stores Co. v. Superior Court, 18 Cal.2d 92 [ 113 P.2d 689 ]; Kelley v. Earle, 325 Pa. 337 [ 190 A. 140 ]; Hodges v. Snyder, 45 S.D. 149 [ 186 N.W. 867 , 25 A.L.R. 1128 ], 261 U.S. 600 [ 43 S.Ct. 435 , 67 L.Ed. 819 ] ; Equity, de Funiak, § 8, p. 19.)
In the Sontag case (p. 94), this court in discussing a permanent injunction had this to say; “This is so because the decree, although purporting on its face to be permanent, is in essence of an executory or continuing nature, creating no right but merely assuming to protect a right from unlawful and injurious interference. Such a decree, it has uniformly been held, is always subject, upon a proper showing, to modification or dissolution by the court which rendered it. The court’s power in this respect is an inherent one.” This would appear to be particularly applicable to the instant case. When, and if, the defendants can show that they are able to so operate their airfield as to respect plaintiffs’ property rights, *852 then the court which granted the injunction may modify or dissolve it. This procedure places the burden where it belongs—on the ones who have created, and who continue to create, the nuisance complained of. The numerous ways in which the airport could be operated so as not to interfere with plaintiffs' rights (as pointed out in the majority opinion, and which I have heretofore set forth) would seem to be innovations which defendants could put into practice before applying for modification or dissolution of the injunction. In effect, the majority says to plaintiffs: You have proven sufficient facts to show that the manner in which defendants have operated their airport constitutes a nuisance, and you have been damaged thereby, but defendants may be able to change their method of operation so as to eliminate the objectionable features and thereby discontinue the nuisance. Therefore, without any assurance that defendants will do so, we will deprive you of the protection afforded by the injunction and will force you to again apply to the trial court for such protection, and if the trial court grants it, we may again reverse the judgment, in the hope that defendants may, at some time in the future, change their method of operation so as to make their operation lawful. This may continue ad infinitum.
The holding of the majority in this case marks a clear departure from the settled course of procedure, as it places the burden on plaintiffs to press their claim for relief or suffer from the continuance of the nuisance. As I have hereinabove pointed out, if the injunctive provisions of the instant judgment are affirmed, defendants are not thereby prevented from so changing their method of operation as to eliminate the nuisance, if this can be done. At such time they may apply to the court for such relief as they may be entitled to receive. In the meantime, plaintiffs are protected from the continuance of the nuisance and the consequent damage to their property which the injunction was issued to prevent.
For the foregoing reasons, I would affirm the judgment.

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Source: Frix Law Library, https://www.frixlaw.com/law-library/cases/9550605. Public record. Not legal advice.