I concur in the reversal of the judgment as to' plaintiffs Terry, Fletcher, Harrison, Baba and Wooters, and in the reversal of the part of the judgment which restrains defendants from operating the airport. I agree that the cause should be remanded for further proceedings in accord with the view that11 Contiguous property owners must to a reasonable degree yield their desired privacy to the general welfare which is contributed to by the operation of legitimate businesses. Were it not so, railroads could not operate near residences, and factories could not be established without the necessity of purchasing prohibitively large areas of property. That reasonable inconvenience must be suffered by owners whose holdings are contiguous to commercial enterprises is too well decided to require citation of authorities.”
An airport is just as lawful, just as much in the public interest and as necessary for its convenience, as a garage or a service station, and a school of aeronautics is just as lawful and serves the public interest as truly as any other school which teaches a useful art or science or craft. Such activities may constitute “a substantial interference with enjoyment of the property” which is in proximity to the places where they are carried on, but it is only an interference which is unreasonable under all the circumstances that can be enjoined. (See, e.g., Nagel v. Dorrington (1927), 202 Cal. 698, 700 [262 P. 718], refusing to enjoin operation of garage and *846service station in the absence of a showing that “it is operated in some extraordinary manner so as to be a nuisance because of such operation. ’ ’)
I dissent from the affirmance of the judgment for damages against Souza, owner of the airstrip, and his wife. In my opinion the evidence does not support the findings that the Souzas operated the airport and that Souza operated “many” planes from it. Souza testified that he did not operate the airport; that he had leased it to Barlandson, who, under the terms of the lease, had the exclusive right to operate it. Mr. Souza collected rent from Barlandson and from the owners of some 18 planes which were kept at the field. There is no evidence that Souza controlled the operation of these planes which regularly occupied space at the airport or that these particular planes were operated in a manner which was legitimately objectionable to any plaintiff. Souza did not lease the land for any improper purpose; he leased it for the lawful, useful purposes of the operation of a flying school, the storing of planes, and the servicing of planes which used the field. Souza did not operate “many” planes; he owned and operated only one plane and there is no evidence that he himself ever used his airport or his airplane unlawfully or in such a manner as to interfere with any plaintiff’s use and enjoyment of plaintiffs’ land.
Would it be reasonable to hold that the owner of property used as a garage, for the storing and repair of automobiles, is to be liable for damages and for abatement of the use of his property if owners of the automobiles stored or serviced at his garage drive them on the highways in such a manner as to violate the law and constitute a nuisance? If the owner of garage property is not to be held to such an extended degree of responsibility for the independent acts of his patrons then neither should the owner of an airport. The liability here of Mr. and Mrs. Souza rests on no better foundation.
It is relatively but a few years since courts—and, of course, the citizenry at large who brought the cases to court—were struggling with a new concept: the use of public highways by self-propelled vehicles. Illustrative of the difficulties encountered then is Nason v. West (1900), 31 Misc. 583 [65 N.Y.S. 651, 652-653], an action for damages which resulted when plaintiffs’ horse was frightened by defendant’s carefully driven motor carriage. The court said: “It will not do to say that it is proper to run any kind of a contrivance upon the street, in which persons may be carried. A machine that *847would go puffing and snorting through the streets, trailing clouds of steam and smoke, might be a nuisance; but this is not such a case. It cannot be said that the defendant’s machine is such a departure in its construction or mode of operation from other steam motor carriages, which experience has lately shown to be entirely practicable for street use, as to make it a nuisance, although, because of the present novelty of horseless carriages, horses may take fright at its approach.” Judgment for the plaintiffs was reversed.
The thought that privately owned automobiles might be generally barred from public highways is now archaic. So also is the thought that privately owned surface vessels might be generally barred from the use of navigable waters. But there are still many people who have not yet accepted the concept that the navigable sea of the air is a public domain and that “Flight in aircraft over the lands 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.” (State Aeronautics Com. Act, § 2(b), ch. 1379, Stats. 1947, 1 Deering’s Gen. Laws, Act 151a.) Only a couple of decades ago pilots often heard the statement (which almost became an adage) that “One doesn’t have to be crazy to fly but it helps.” There are people who still believe this. But the magnificent records of safe, speedy and comfortable transportation through the use of airplanes, made by both airline companies and conservative private owners, have disproved the “adage.”
The published records of the Civil Aeronautics Authority disclose that (as of February 1, 1952) there were 88,275 civil aircraft registered in the United States, of which 1,258 were scheduled air carrier aircraft and 87,017 were privately owned and operated in other than scheduled air carrier operations. Every one of these 88,275 airplanes must have airports from and to which to operate; the utility of each can be no greater than the available take off and landing facilities. By reason of size, weight and other limitations, the 1,258 scheduled air carrier aircraft are limited to the use of relatively very large and highly improved airports but the great majority of the 87,017 privately owned and operated airplanes are built to take off and land on much smaller fields. The loss of any approved and established airport—small or large—is a loss to the people of the entire state. As declared in “California *848Airport Study” (1950), prepared by the California Aeronautics Commission, “Aviation’s part in California’s growth is large. The State has accepted the aircraft as an important means of transportation, and as a new tool of agriculture. Airports must be provided on a permanent and equitable basis. Detailed study of the inventory of the State’s airports and careful consideration of the specific needs of the various counties and cities, individually and collectively, leads to certain broad conclusions. These are:
“An airport is a part of a state-wide transportation system and serves all of the people of the State—not just those who live in the immediate vicinity of the terminal.
“The ‘highway system of the air’ will not give full service nor show adequate returns until it is completed.
‘ ‘ To keep California abreast of national progress a definite, integrated, program must be instituted to establish the system.
“The problem confronting the people of the State of California at the present time is the establishment of a system of airports on a permanent basis in order to realize the full benefit to be derived from aviation.
“The terrain will force the use of the airplane for rapid and economic travel in many areas. The distances between the State’s major areas of population will demand transportation means faster than can be accomplished on the surface.
“Many airports are needed to adequately serve populated areas.
“Airports are needed to give access to the many fine existing recreational areas, and to develop others that are not otherwise accessible.
“Isolated airports are required to complete the system.
“Some airports are needed to save lives.”
Returning more particularly to the law applicable to this case I would emphasize that neither noise alone (see Smith v. New England Aircraft Co. (1930), 270 Mass. 511 [170 N.E. 385, 69 A.L.R. 300, 306]; Delta Air Corp. v. Kersey (1942), 193 Ga. 862 [20 S.E.2d 245, 140 A.L.R. 1352, 1356] ; Crew v. Gallagher (1948), 358 Pa. 541, 548 [58 A.2d 179]), nor mere apprehension of danger of falling airplanes (see Thrasher v. Atlanta (1934), 178 Ga. 514 [173 S.E. 817, 99 A.L.R. 158, 163]; Batcheller v. Commonwealth (1940), 176 Va. 109, 117 [10 S.E.2d 529])—the two elements of which particular complaint is made in the testimony of those plaintiffs who took the stand in support of the allegations of the *849complaint— are sufficient grounds for enjoining the operation of an airport.
In the state of the evidence here I would hold that the Souzas are within the rule of such cases as Meloy v. City of Santa Monica (1932), 124 Cal.App. 622, 627 [12 P.2d 1072], and Mundt v. Nowlin (1941), 44 Cal.App.2d 414, 416 [112 P.2d 782], that a landlord is not liable for a nuisance created by lessees who have leased the land for lawful and proper purposes. It was not shown that a nuisance is a necessary consequence of the operation of the flying school and airport here. The lessor should not be liable for their operation in a manner which he did not contemplate and to which he did not consent.
Earlandson states that he has no objection to any unlawful or improper actions being enjoined. Earlandson is liable only for unlawful use of the airport which he could control. Since there is evidence tending to show that planes of Earlandson’s flying school, inferentially controlled by him, often passed over the land of plaintiffs at unnecessarily low altitudes when taking off, the finding against Earlandson on this point can be upheld, but the relief adjudged against him should go no further than the ends of equity, upon the proof, may require.