Causby v. United States

• Decision Date: 04 June 1945
• Docket Number: No. 46054.,46054.
• Citation: 60 F. Supp. 751
• Parties: CAUSBY et ux. v. UNITED STATES.
• Court: U.S. Claims Court

60 F. Supp. 751

CAUSBY et ux. v. UNITED STATES.

No. 46054.

Court of Claims.

June 4, 1945.

COPYRIGHT MATERIAL OMITTED

COPYRIGHT MATERIAL OMITTED

COPYRIGHT MATERIAL OMITTED

William E. Comer, of Greensboro, N. C., for plaintiff.

Mary K. Fagan, of Washington, D. C., and Francis M. Shea, Asst. Atty. Gen., for defendant.

Before WHALEY, Chief Justice, and LITTLETON, WHITAKER, JONES, and MADDEN, Judges.

WHITAKER, Judge.

Plaintiffs sue for the alleged taking by the defendant of their home and chicken farm which was adjacent to the Greensboro-High Point Municipal Airport. This airport was operated under an enabling Act of the North Carolina Legislature. It was used by commercial airliners, by private planes, and by military aircraft. The defendant used it under a lease which permitted its military airplanes to land on and take off from it, and to use one of the hangars on it and to have the exclusive use of 10 acres of land adjoining the hangar.

One of the runways on which the planes landed and took off ran in the direction of plaintiffs' home and chicken farm, so that planes using this runway passed directly over plaintiffs' property. All planes, both private and military, used this runway when the wind was blowing from a certain quarter.

Plaintiffs say that most of the planes using it passed over their house harmlessly at relatively high altitudes, but that the heavier of the military planes passed over it at so low an altitude as to seriously interfere with their possession and enjoyment of their property. They say that the chickens on their chicken farm lived in such a state of fright that their fertility was greatly decreased, and that on frequent occasions they became so frightened that they blindly flew against the buildings and were killed. As a result they say they have had to sell their remaining chickens and abandon their property as a chicken farm. They also say that they themselves live in a state of constant uneasiness and that they are unable to sleep at night due to the noise of the planes passing over their house and to the glare of their lights. They continue, however, to occupy the property as a home.

The proof shows that plaintiffs' barn is 2,220 feet from the end of the paved portion of the northwest-southeast runway, the tallest tree is 2,230 feet from it, and plaintiffs' house is 2,275 feet from it. The elevation of plaintiffs' property is from five to six feet below that of the runway.

According to the rules and regulations of the Civil Aeronautics Authority, the ideal glide angle is not less than 30 to 1. This means that there must be no obstruction more than a foot high 30 feet from the end of the runway, and that the height of any obstruction must not exceed 1/30 of its distance from the end of the runway. This angle of glide is supposed to be safe under the worst conditions. The highest tree on plaintiffs' property is 18 feet below this glide angle, plaintiffs' barn is 63 feet below it, and plaintiffs' house is 67 feet below it. Not infrequently defendant's planes passed over plaintiffs' property at approximately these heights. On some occasions the backwash from the propellers blew the dead leaves off the trees.

Plaintiffs' testimony that the fertility of their chickens was so decreased, and that so many of them were killed as a result of fright that their business became so unprofitable that they had to abandon it, is not disputed; nor that the value of the property has greatly decreased. Nor is it disputed that all planes used the runway which passed over plaintiffs' property when the wind was blowing from a certain direction, nor that the defendant intended to continue to do so as long as it continued to use the airport. The defendant does say that this runway was used only from 4 to 7 percent of the time, but it does not deny that it intended to continue to use it whenever the wind blew from a certain quarter, so long as it continued to use the airport.

The term of the lease began on June 1, 1942, and ran for a period of thirty days, but with the privilege of renewal until June 30, 1967, or until six months after the end of the present national emergency, whichever date was the earlier. It is still in force and defendant continues to use the airport.

The question is whether or not the passage of defendant's planes over plaintiffs' property at the stated heights above it, with the result stated, and its intention to continue to have them pass over it for an indefinite period, constitutes a taking.

Under the old common law doctrine of cujus est solum ejus est usque ad coelum et ad inferos a landowner not only owns the surface of his land, but also owns all that lies beneath the surface even to the bowels of the earth and all the air space above it even unto the periphery of the sky.

Under this doctrine any erection over the land of another, or any passage through the air space above it, is a trespass. So, if an adjoining landowner allows the eaves of his house to extend beyond his own property and over the land of another he has committed a trespass. Broom's Legal Maxims, 310; Crowhurst v. Amersham Burial Board, 4 Ex.D. 5, 10; Ackerman et al. v. Ellis, 81 N.J.L. 1, 79 A. 883. A telephone or telegraph company which stretches its wires over the land of another without permission is guilty of a trespass. Butler v. Frontier Telephone Co., 186 N.Y. 486, 491, 79 N.E. 716, 11 L.R.A.,N.S., 920, 116 Am.St.Rep. 563, 9 Ann.Cas. 858. The shooting of guns over another's land is also a trespass, although the bullets do not land upon it. Whittaker v. Stangvick et al., 100 Minn. 386, 111 N.W. 295, 10 L.R.A., N.S., 921, 117 Am.St.Rep. 703, 10 Ann.Cas. 528; Restatement of the Law of Torts, sec. 159.

However, especially since the days of airplanes, this common law doctrine has received substantial modification. But even so, there can be no doubt that today a landowner owns the air space above his land as completely as he does the land itself or the minerals beneath it, at least insofar as it is necessary for his full and complete enjoyment of the land itself. So, he may erect buildings on his land to any desired depth or height, subject, of course, to necessary police regulations, and, subject, of course, to the right of eminent domain, he may prohibit the erection over it of any structures of any character or the passage over it of anything that interferes with his right to light, air, view, or the safe and peaceful occupation and enjoyment of his land. Smith v. New England Aircraft Co., 270 Mass. 511, 170 N.E. 385, 69 A.L.R. 300; Delta Air Corporation v. Kersey, 193 Ga. 862, 20 S.E. 2d 245, 140 A.L.R 1352; Restatement of the Law of Torts, sec. 194; Pollock on Torts, 13th Ed., p. 362; Burdick's Law of Torts, 4th Ed. 406; Act of May 20, 1926, c. 344, 44 Stat. 568, 574, sec. 10; 49 U.S.C. 180. Cf. Northwest Airlines v. Minnesota, 322 U.S. 292, 64 S.Ct. 950, 88 L.Ed. 1283; Hinman et al. v. Pacific Air Transport Corporation, 9 Cir., 84 F.2d 755.

Under the facts of this case there can be no doubt that defendant has committed numerous trespasses upon plaintiffs' property. It has traversed many times the air space above their property at such an altitude and with planes of such a character as to seriously interfere with plaintiffs' use and enjoyment of their property, even to such an extent as to make it necessary for them to abandon it as a chicken farm.

A trespass upon the property of another, however, does not ordinarily constitute a taking, but if it is sufficiently frequent or if there is otherwise shown an intention to continue it at will, such continued trespasses or intention may amount to a taking, if they destroy the owner's use and enjoyment of his property. Hurley v. Kincaid, 285 U.S. 95, 103, 52 S.Ct. 267, 76 L.Ed. 637; Jacobs v. United States, 290 U.S. 13, 16, 54 S.Ct. 26, 78 L.Ed. 142, 96 A.L.R. 1; Portsmouth Harbor Land & Hotel Co. v. United States, 260 U.S. 327, 43 S.Ct. 135, 67 L.Ed. 287.

The case last cited was before the Supreme Court on three different occasions. Its first opinion was in a case styled Peabody v. United States, 231 U.S. 530, 34 S. Ct. 159, 58 L.Ed. 351, its second in Portsmouth Harbor Land & Hotel Co. v. United States, 250 U.S. 1, 39 S.Ct. 399, 63 L.Ed. 809. Under the facts in the two former opinions the Supreme Court held that there had not been a taking. The case reported in 260 U.S. 327, 43 S.Ct. 135, 136, 67 L.Ed. 287, came before the court upon a demurrer which had been sustained by this court. The facts stated in the petition were that the defendant had erected a fort on a strip of land immediately to the west of plaintiff's land and that it had planted guns therein which could be fired only over plaintiff's land; that a fire control tower had been erected for the firing of these guns, and that the defendant intended to fire them across plaintiff's land at will, with the result that it had been deprived of the use and enjoyment of its property. Of such a case the court said:

"* * * There is no doubt that a serious loss has been inflicted upon the claimant, as the public has been frightened off the premises by the imminence of the guns; and while it is decided that that and the previously existing elements of actual harm do not create a cause of action, it was assumed in the first decision that — `If the Government had installed its battery, not simply as a means of defence in war, but with the purpose and effect of subordinating the strip of land between the battery and the sea to the right and privilege of the Government to fire projectiles directly across it for the purpose of practice or otherwise, whenever it saw fit, in time of peace, with the result of depriving the owner of its profitable use, the imposition of such a servitude would constitute an appropriation of property for which compensation should be made.' 231 U.S. 538, 34 S.Ct. 160, 58 L.Ed. 351. That proposition we regard as clearly sound. The question is whether the petition...