JOHNSON,J. —I respectfully dissent.
The majority conclude because the underground telephone facility had “overwhelming characteristics” of a permanent nuisance, this case was not a “close one” and the plaintiffs, therefore, were not entitled to elect to treat the nuisance/trespass as continuing rather than permanent. The majority point out the telephone facility was on plaintiffs’ land for over 20 years and was intended to operate in that location for at least 100 years.
While it is true the facility had many of the characteristics of a permanent nuisance/trespass, it is also true the facility had the primary and most critical indication of a continuing one—abatability. The majority, however, choose to give short shrift to this all-important, distinguishing characteristic in order to find as a matter of law the nuisance/trespass case was a permanent one.
As our Supreme Court has pointed out on several occasions, regardless how solid or seemingly permanent a structure is, if the structure can be removed it can be properly considered a continuing nuisance/trespass at the plaintiff’s election. In Baker v. Burbank-Glendale-Pasadena Airport Authority (1985) 39 Cal.3d 862, 868 [218 Cal.Rptr. 293, 705 P.2d 866], the court noted “Whether a nuisance will be classified as continuing or permanent depends not on the offending party’s interest in continuing the nuisance, but on the type of harm suffered.” Thus, the telephone company’s intent to use the underground facility for at least 100 years is irrelevant. What is signifi[1489]cant is that in this case the harm suffered by the plaintiffs was not permanent but only temporary because the facility, the source of the injury, was removed from their land upon its discovery.
In reality, the underground conduit in this case had characteristics of both a continuing and permanent nuisance/trespass. In cases of doubt as to the permanency of the injury “the plaintiff may elect whether to treat a particular nuisance as permanent or continuing.” (Baker, supra, 39 Cal.3d at p. 870.)
Because this case unquestionably presents a question of doubt as to the permanency of the intrusion, precluding a finding as a matter of law the nuisance/trespass was permanent, I would conclude plaintiffs should have been allowed an election to treat the nuisance/trespass as continuing.
I. One of the Most Critical Characteristics of a Continuing Nuisance/Trespass Is Whether It Is Abatable
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 (1988) 204 Cal.App.3d 228, 234 [251 Cal.Rptr. 49] [“the salient feature of a continuing trespass or nuisance is that its impact may vary over time”].) This analysis, that relies on the type of injury to define a nuisance as either permanent or temporary, has been criticized as adding to the confusion of terms.
For a specific example, in Thackery v. Union Portland Cement Co. (1924) 64 Utah 437 [231 P. 813], the court held that a nuisance created by operation of a cement plant and deposit of fine particles from it on plaintiff’s land was “recurrent” and not permanent because sometimes the wind took the particles in the other direction and hence the invasion and injury varied. In analyzing this case, a commentator noted “This seems to represent a misunderstanding of the ‘permanent’ notion, since it is the permanence of the source, not the constancy of the invasion, that is usually controlling.” (Dobbs, Remedies (1973) § 5.4, p. 335.) Meanwhile our Supreme Court, unlike the Utah Supreme Court, recognized this difference in Phillips v. Pasadena (1945) 27 Cal.2d 104 [162 P.2d 625], in which it held a gate placed across a city street was a temporary nuisance on the basis the nuisance was removable—not because the injury it caused varied over time.
Most cases 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-[1490]Glendale-Pasadena Airport Authority, supra, 29 Cal.3d at p. 869; accord Kornoff v. Kingsburg Cotton Oil Co. (1955) 45 Cal.2d 265, 270-271 [288 P.2d 507]; Spaulding v. Cameron (1952) 38 Cal.2d 265, 268 [239 P.2d 625]; Phillips v. Pasadena, supra, 27 Cal.2d at p. 107; Kafka v. Bozio (1923) 191 Cal. 746, 751 [218 P. 753, 29 A.L.R. 833]; see also 3 Witkin, Cal. Procedure (3d ed. 1985) Actions, § 425, p. 458; 58 Am. Jur.2d Nuisances § 28, p. 690 [“if a nuisance is a use which may be discontinued at any time, it is considered continuing in character”]; Annot., Injunction Against Repeated or Continuing Trespasses on Real Property (1958) 60 A.L.R.2d 310; McCormick, Damages for Anticipated Injury to Land (1924) 37 Harv.L.Rev. 574, 591 [primary criteria for determining permanence is plaintiff’s ability to abate].)
Even the Field-Escandon court seemed to rely heavily on the abatability issue. In reading the opinion closely it is implicit the court acknowledged it was “improbable as a practical matter” the sewage line could or would have been abated. (See Spaulding v. Cameron, supra, 38 Cal.2d at p. 268.)
The California Supreme Court also recognized there would be cases where it might be difficult to determine whether a nuisance or trespass was permanent or continuing. Plaintiff relies on Baker v. Burbank-Glendale-Pasadena Airport Authority, supra, 39 Cal.3d 862, as an example of this type of situation. In Baker, homeowners who lived adjacent to the Burbank-Glendale-Pasadena Airport sued the airport for nuisance caused by noise, smoke, and vibrations from flights over their homes. The trial court dismissed the nuisance cause of action as barred by the statute of limitations covering permanent nuisances. The plaintiffs appealed. (Id. at pp. 865-866.)
The court stated, “Airport operations are the quintessential continuing nuisance. Although the [federal] law precluding interference in any way with flight patterns and schedules adds an element of permanency to an otherwise continuing problem, it does not mandate overall that the nuisance is a permanent one. . . . Because plaintiffs elected to treat the airport as a continuing nuisance, we conclude that the statute of limitations does not bar their nuisance claims.” (39 Cal.3d at p. 873.) Thus, the Supreme Court held, “In case of doubt as to the permanency of the injury the plaintiff may elect whether to treat a particular nuisance as permanent or continuing.” (Baker v. Burbank-Glendale-Pasadena Airport Authority, supra, 39 Cal.3d at p. 870; see also Kafka v. Bozio, supra, 191 Cal. at p. 752 [“In all cases of doubt respecting the permanency of the injury, courts are inclined to favor the right to successive actions”]; see also United States v. Dickinson (1947) 331 U.S. 745, 749 [91 L.Ed. 1789, 1794, 67 S.Ct. 1382] [expressing preference for [1491]election of remedies]; Note, Developments in the Law—Statutes of Limitation (1950) 63 Harv. L. Rev. 1177, 1205-1207.)1
II. The Plaintiff Should Have Been Allowed to Elect Whether to Treat This as a Continuing Nuisance
If there ever was a case of doubt, it is the case presently before the court. The nuisance/trespass complained of in this case has many of the 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.)
In Phillips v. Pasadena, supra, 27 Cal.2d 104, a case similar to the present one, the plaintiff sued the city for closing a road, which was the only safe means to go to and from plaintiff’s resort. The city blocked access to the road by placing a locked gate across it at an intersection within the city. The trial court dismissed the action as barred by the three-year statute of limitations for a permanent nuisance/trespass. (Id. at pp. 105-106.) The plaintiff contended the condition was a continuing nuisance/trespass because the defendant had removed the barrier on demand on previous occasions and thus defendant’s intention to permanently obstruct the road was not immediately apparent to plaintiff. The judgment was reversed on appeal. The court said it could not be found “as a matter of law, that the locked gate constituted a permanent nuisance, since it appears. . . it could have been removed at any time.” (Id. at p. 108.)
[1492]As in Phillips, it cannot be said as a matter of law the facilities here were a permanent nuisance simply because they were maintained by a public utility vested with a public interest. Although seemingly permanent, the facilities, like the gate in Phillips, apparently could have been removed at any time. In fact, they were removed by the defendant in the instant case before trial began. Therefore, the complained of facilities had the main characteristic of a continuing nuisance—they were abatable. That they were abatable was proved conclusively by the fact they were abated in an attempt to head off threatened litigation to force removal of the facilities.
Because the nuisance in the present case has characteristics of both a permanent and continuing nuisance or trespass, the plaintiffs should be allowed to elect whether to treat the nuisance as continuing or permanent. Therefore it was error for the trial court to have ruled the nuisance was permanent as a matter of law when there was obviously doubt as to whether or not it was a permanent nuisance. (Kornoff v. Kingsburg Cotton Oil Co., supra, 45 Cal.2d 265, 271 [plaintiff should not be forced to bring successive actions even though it is highly improbable the nuisance will be abated]; see also Polin v. Chung Cho (1970) 8 Cal.App.3d 673, 677 [87 Cal.Rptr. 591] [the rule of permanent nuisance is for “the benefit of plaintiff, [and] plaintiff should not be compelled to treat a condition as ‘permanent’ when plaintiff prefers not to so treat it.”].)
Accordingly, plaintiff in the present case should not be compelled to treat the nuisance/trespass as permanent when it has elected to treat it as continuing. The plaintiff’s election to treat the condition as a continuing nuisance/ trespass is confirmed by the complaint which asks primarily for past damages. It was stated by the court in Baker, “public policy militates against defining a nuisance as permanent or continuing on the basis of [public entity] privilege alone. As noted, the purpose of nuisance law is to provide a means of recovery for harm suffered. The doctrine of election is designed to facilitate just and equitable recovery.” (Baker v. Burbank-Glendale-Pasadena Airport Authority, supra, 39 Cal.3d at p. 871.) The only way “just and equitable recovery” can be obtained in the present case is by allowing plaintiff to treat the nuisance as continuing.
The trial court and the majority contend this case is controlled by the decision in Field-Escandon v. DeMann, supra, 204 Cal.App.3d 228, which found an underground sewer pipe to be a permanent nuisance. Although the trial court felt Field-Escandon compelled the conclusion the telephone facilities were also a permanent nuisance, in ruling the trial court acknowledged several times it was a harsh result.
There are indeed numerous similarities between this case and FieldEscandon. However, there is one vital difference between the two cases [1493]which was not considered by the trial court. In the instant case the nuisance was abated. On the other hand, in Field-Escandon not only was the nuisance not abated but it was clear the defendants had no intention to abate their only means of sewage. As such, the abatability of the condition in Field-Escandon was “improbable as a practical matter.” (Spaulding v. Cameron, supra, 38 Cal.2d at p. 268.) Similarly, if the only possible site for defendant’s telephone facility had been on plaintiffs’ property and that facility were essential to the telephone company’s operation, the instant nuisance would have been permanent. Indeed, if that were the case, as in Field-Escandon, the defendant would not have chosen to remove it. But this particular location was not essential. So the company’s nuisance was not only abatable, it was abated. Consequently, Field-Escandon is neither conclusive nor persuasive on the facts of this case.
I am bothered, in part, because the the majority opinion results in an apparent oxymoron, in fact, a double oxymoron—the abated “unabatable” nuisance and the impermanent “permanent” trespass. While the majority treats the fact the telephone company had abated the nuisance by removing the offending equipment as some sort of irrelevant incident, it is, in logic and common sense, the determinative legal fact.
Indeed the majority opinion creates something of a legal anomaly. It characterizes appellant’s cause of action as one for a “permanent” nuisance in a situation where appellant would only be entitled to damages for a “continuing” nuisance, assuming no statute of limitations problem existed. The primary difference between these two causes of action is the entitlement to damages for future injuries when suing for a “permanent” nuisance. In essence, when a nuisance indeed is going to be a permanent intrusion, the law allows a property owner the opportunity to accept this as a fact of life and sue for damages to compensate for the future injuries the owner will suffer through the entire life of the ongoing intrusion on its property. The cause of action for a “continuing” nuisance, on the other hand, is solely for past injuries and cannot include a prayer for future damages since it is assumed the nuisance will be abated sometime in the future.
Here the defendant already had abated the nuisance by removal of the offending equipment from appellant’s property. The nonexistent “permanent” nuisance was no longer causing injuries compensable through “permanent nuisance” damages. Consequently, there were no future injuries to suffer and appellant could only file an action for a “continuing” nuisance and not for a “permanent” nuisance. This is what appellant did—file a suit for a “continuing” nuisance. Yet, paradoxically, the majority opinion holds appellant could not allege a cause of action for a “continuing” nuisance. Rather appellant was limited to a cause of action for a “permanent” nuisance—even [1494]though that was not be a viable cause of action once the nuisance was abated. After consigning appellant to that nonviable cause of action, the majority opinion then decides the statute of limitations has run on that species of lawsuit.
In fact, assuming no statute of limitations problems existed for either kind of cause of action, appellant would not have been entitled to file a cause of action on a “permanent” nuisance theory. Instead he properly would have been allowed to pursue damages for past injuries only under a “continuing” nuisance theory. Consequently, if properly characterized, appellant’s lawsuit would not be barred by the statute of limitations. Only by pigeon-holing it in a category where it could not fit were statute of limitations problems irrelevant does the majority opinion create a statutory bar to this lawsuit.
In sum, because the nuisance/trespass in the present case shared characteristics of both a permanent and continuing nuisance, I conclude under settled and sound principles of California law plaintiffs should have been allowed to elect to treat the encroachment as a continuing rather than a permanent nuisance. (Baker v. Burbank-Glendale-Pasadena Airport Authority, supra, 39 Cal.3d 862.) Having elected to treat the nuisance/trespass as continuing, I would further find the statute of limitations was not a bar to their action for damages and plaintiffs should have been allowed to seek such past damages as may have accrued within the statutory period.
Appellants’ petition for review by the Supreme Court was denied February 20, 1992.
Other jurisdictions have noted with approval an election of remedies where the nature of the wrong makes choosing when to bring suit, and whether to sue for only past or prospective damages, becomes a difficult choice for a plaintiff. In Strange v. the Cleveland, C. C. & St. L. Ry. Co. (1910) 245 I11. 246, 252 [91 N.E. 1036, 1039] the Supreme Court of Illinois stated “ ‘The apparent discrepancy in the American cases on this subject may, perhaps, be reduced by supposing that where the nuisance consists of a structure of a permanent nature and intended by the defendant to be so, or of a use or invasion of the plaintiff’s property or a deprivation of some benefit appurtenant to it for an indefinitely long period in the future, the injured party has an option to complain of it as a permanent injury and recover damages for the whole time, estimating its duration according to the defendant’s purpose in creating or continuing it, or to treat it as a temporary wrong, to be compensated for while it continues,— that is, until the act complained of becomes rightful by grant, condemnation of property or ceases by abatement.’ ” (See also Hockaday v. Wortham, (1900) 22 Tex. Civ. App. 419 [54 S.W. 1094] [in an action for the maintenance of a cattle barn as a nuisance, in view of the expressed purpose of the defendant to continue the nuisance, the plaintiff was entitled to an election to sue either for temporary or permanent injury.].)