Hinman v. Pacific Air Transport

• Decision Date: 20 July 1936
• Docket Number: 7811.,No. 7810,7810
• Citation: 84 F.2d 755
• Parties: HINMAN et al. v. PACIFIC AIR TRANSPORT. SAME v. UNITED AIR LINES TRANSPORT CORPORATION.
• Court: U.S. Court of Appeals — Ninth Circuit

84 F.2d 755 (1936)

HINMAN et al. v. PACIFIC AIR TRANSPORT.^*

SAME v. UNITED AIR LINES TRANSPORT CORPORATION.

Nos. 7810, 7811.

Circuit Court of Appeals, Ninth Circuit.

July 20, 1936.

Bruce Murchison and M. L. Clopton, both of Los Angeles, Cal., for appellants.

Newlin & Ashburn, Gurney E. Newlin, Paul Sandmeyer, and George W. Tackabury, all of Los Angeles, Cal., for appellees.

Before WILBUR, MATHEWS, and HANEY, Circuit Judges.

HANEY, Circuit Judge.

From decrees sustaining motions to dismiss filed by defendants in two suits, appellants appeal and bring for review by this court the rights of a landowner in connection with the flight of aircraft above his land. Appellant filed one bill against Pacific Air Transport, an Oregon corporation, and another bill against United Air Lines Transport Corporation, a Delaware corporation, in each of which the allegations are nearly identical. Although two appeals are before the court, briefs filed discuss both cases, and therefore we will consider them together.

Appellants filed a first amended bill against Pacific Air Transport after a motion to dismiss the original bill had been sustained, and after a motion to dismiss the first amended bill had been sustained, they filed their second amended bill, which is the bill before this court. In the United Air Lines Transport Corporation case, the first amended bill is before this court, there having been filed an original bill, which was dismissed.

Appellants allege, in the bills under consideration, facts showing diversity of citizenship and that the amount in controversy exceeds $3,000 exclusive of interest and costs; that they are the owners and in possession of 72½ acres of real property in the city of Burbank, Los Angeles county, Cal., "together with a stratum of air-space superjacent to and overlying said tract * * * and extending upwards * * * to such an altitude as plaintiffs * * * may reasonably expect now or hereafter to utilize, use or occupy said airspace. Without limiting said altitude or defining the upward extent of said stratum of airspace or of plaintiff's ownership, utilization and possession thereof, plaintiffs allege that they * * * may reasonably expect now and hereafter to utilize, use and occupy said airspace and each and every portion thereof to an altitude of not less than 150 feet above the surface of the land * * *". The reasonable value of the property is alleged to be in excess of $300,000.

It is then alleged that defendants are engaged in the business of operating a commercial air line, and that at all times "after the month of May, 1929, defendants daily, repeatedly and upon numerous occasions have disturbed, invaded and trespassed upon the ownership and possession of plaintiffs' tract"; that at said times defendants have operated aircraft in, across, and through said airspace at altitudes less than 100 feet above the surface; that plaintiffs notified defendants to desist from trespassing on said airspace; and that defendants have disregarded said notice, unlawfully and against the will of plaintiffs, and continue and threaten to continue such trespasses.

It is further alleged: "That in operating aircraft as aforesaid, defendants followed and on substantially all occasions herein referred to have followed one of two courses, ways and paths in, across and through said airspace, which by reason of constant and repeated user by defendants have become and are well defined by constant user * * *." Thereafter the first of such courses, designated "A," is described with particularity with regard to the surface boundaries of plaintiffs' land; course "A" is averred to be 75 yards wide over the north side of plaintiffs' land the place of entry, the lowest boundary of the course above the surface to be 25 feet, and the highest boundary to be 175 feet above the surface. At the south side of plaintiffs' land, the course is said to be 100 yards wide, the lowest boundary to be 5 feet above the surface, and the highest boundary to be 45 feet above the surface.

The second course is also described particularly, and although there is some difference in the width of the course, the height above the surface is the same as course A.

It is alleged that the direction of the breeze determines which course defendants use on a particular occasion, and that defendants have used such courses since the time of the notice given them by plaintiffs, openly, notoriously, and under claim of right adverse to plaintiffs.

In the last paragraph it is alleged that the remedy at law is inadequate; that unless defendants are enjoined they will repeat the said trespasses and will impose a servitude upon plaintiffs' utilization, use, occupancy, and enjoyment of the surface of their land to their irreparable injury; and that injunctive relief is necessary to prevent a multiplicity of legal proceedings.

In each bill under consideration, there is a second cause of action. The allegations of the first cause, except the last paragraph, are adopted in the second cause, and it is further alleged that the reasonable value of the utilization, use, and occupancy of said courses is $1,500 per month; that "by reason of defendants' invasion and disturbance of and trespass upon plaintiffs' ownership and possession of said airspace, plaintiffs have suffered damage" in the sum of $90,000.

The prayer asks an injunction restraining the operation of the aircraft through the airspace over plaintiffs' property and for $90,000 damages in each of the cases.

Appellees contend that it is settled law in California that the owner of land has no property rights in superjacent airspace, either by code enactments or by judicial decrees and that the ad coelum doctrine does not apply in California. We have examined the statutes of California, particularly California Civil Code, § 659 and § 829, as well as Grandona v. Lovdal, 78 Cal. 611, 21 P. 366, 12 Am.St.Rep. 121. Wood v. Moulton, 146 Cal. 317, 80 P. 92; and Kafka v. Bozio, 191 Cal. 746, 218 P. 753, 29 A.L.R. 833, but we find nothing therein to negative the ad coelum formula. Furthermore, if we should adopt this formula as being the law, there might be serious doubt as to whether a state statute could change it without running counter to the Fourteenth amendment to the Constitution of the United States. If we could accept and literally construe the ad coelum doctrine, it would simplify the solution of this case; however, we reject that doctrine. We think it is not the law, and that it never was the law.

This formula "from the center of the earth to the sky" was invented at some remote time in the past when the use of space above land actual or conceivable was confined to narrow limits, and simply meant that the owner of the land could use the overlying space to such an extent as he was able, and that no one could ever interfere with that use.

This formula was never taken literally, but was a figurative phrase to express the full and complete ownership of land and the right to whatever superjacent airspace was necessary or convenient to the enjoyment of the land.

In applying a rule of law, or construing a statute or constitutional provision, we cannot shut our eyes to common knowledge, the progress of civilization, or the experience of mankind. A literal construction of this formula will bring about an absurdity. The sky has no definite location. It is that which presents itself to the eye when looking upward; as we approach it, it recedes. There can be no ownership of infinity, nor can equity prevent a supposed violation of an abstract conception.

The appellants' case, then, rests upon the assumption that as owners of the soil they have an absolute and present title to all the space above the earth's surface, owned by them, to such a height as is, or may become, useful to the enjoyment of their land. This height, the appellants assert in the bill, is of indefinite distance, but not less than 150 feet.

If the appellants are correct in this premise, it would seem that they would have such a title to the airspace claimed, as an incident to their ownership of the land, that they could protect such a title as if it were an ordinary interest in real property. Let us then examine the appellants' premise. They do not seek to maintain that the ownership of the land actually extends by absolute and exclusive title upward to the sky and downward to the center of the earth. They recognize that the space claimed must have some use, either present or contemplated, and connected with the enjoyment of the land itself.

Title to the airspace unconnected with the use of land is inconceivable. Such a right has never been asserted. It is a thing...