Spar

*1482 Opinion

—Canord Investment Company 1 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…

—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.…

WOODS (Fred), J.

Canord Investment Company [1] 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.

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…