Aaron v. United States

• Citation: 311 F.2d 798
• Decision Date: 11 January 1963
• Docket Number: 489-58.,No. 113-59,113-59
• Parties: Alva A. AARON et al. v. The UNITED STATES. Peter ANDERSEN et al. v. The UNITED STATES.
• Court: Court of Federal Claims

311 F.2d 798 (1963)

Alva A. AARON et al. v. The UNITED STATES.

Peter ANDERSEN et al. v. The UNITED STATES.

Nos. 113-59, 489-58.

United States Court of Claims.

January 11, 1963.

Irl Davis Brett, Pasadena, Cal., for plaintiffs.

Herbert Pittle, Washington, D. C., with whom was Asst. Atty. Gen., Ramsey Clark, for defendant.

WHITAKER, Judge.

These two cases, in which plaintiffs are seeking to recover for the taking of easements of flight for defendant's jet aircraft over their respective properties, are before us on the findings of fact and recommendations for conclusions of law of Trial Commissioner Mastin G. White, supported by an opinion, which are hereinafter set forth.

The Trial Commissioner's opinion in this case was written before the Supreme Court's opinion in Griggs v. Allegheny County, 369 U.S. 84, 82 S.Ct. 531, 7 L. Ed.2d 585. Prior thereto this court and the Supreme Court had held that the United States was liable, under certain circumstances, for the taking of an easement of flight over property by its planes in landing and taking off from an airport. Following those decisions, the Trial Commissioner concluded that the United States had not taken an easement of flight over certain parcels of land owned by some of the plaintiffs in this case prior to the time Air Force pilots first began flying jet planes over the properties with the intention of continuing to do so at will. When Air Force pilots did begin flying over their property, he said there was a taking by the United States. That date he fixed as about August 1, 1953.

However, in Griggs v. Allegheny County, supra, the Supreme Court, for the first time, held that the operator of an airport was liable, under certain circumstances, for the taking of an easement of flight over property necessary for the use of airplanes in landing and taking off from its airport. This holding makes it necessary for us to re-examine the date of the taking, because the United States began the joint operation of this airport much before the Air Force pilots began flying planes over it. Prior thereto, and while the United States was jointly operating the airport, the planes had been flown by the pilots of the aircraft manufacturing companies.

As the Trial Commissioner found, and as he says in his opinion, on February 26, 1952, the United States took over joint operation of the airport with Los Angeles County, preliminary to its later complete acquisition of it on February 2, 1954. Pursuant to contracts entered into with the Air Force, aircraft manufacturing companies established and maintained at the airport plants for the manufacture of jet aircraft, and, beginning in February 1952, their pilots began making test flights of the planes being manufactured for the United States over some of the parcels of land involved in this case.

When the United States took over joint operation of the airport, it did so for the primary purpose of providing a place for the landing and taking off of the jet planes being manufactured for it on the airport grounds. It knew, of course, that these planes would fly over some of plaintiffs' properties, and it intended that they should do so at whatever altitude take-offs and landings required. It turned out that the planes passed over the porperties of some of the plaintiffs at altitudes of less than 500 feet, the lower reach of navigable air space over noncongested areas. This continued unabated from February 1952 to October 1956, when the number of these flights sharply decreased, but still continued thereafter to a greater or lesser extent.

When the flights commenced and it was ascertained that the planes passed over the properties at altitudes lower than the navigable air space, and defendant nevertheless continued the flights, it thereby manifested an intention to continue these trespasses on the air space below the navigable air space, which belonged to plaintiffs. But plaintiffs had no use for this air space, except as it contributed to their use and enjoyment of the surface of the ground, and except as it insured against an impairment of their use and enjoyment of the surface of the ground. So long as these flights did not seriously interfere with the use and enjoyment of their properties, the defendant did not impose a servitude upon them for which plaintiffs are entitled to compensation. In our opinion this did not occur until August 1953 for the reasons now to be stated.

From the time the defendant took over joint operation of the airport in February 1952 until January of the following year, there was an average of 61 flights per month by jet aircraft. Beginning in January 1953 they increased to 132, and further increased to 352 by December of that year. Prior to August 1953 the flights were by pilots of the airplane companies who were manufacturing planes for defendant. Beginning in August 1953, Air Force pilots also flew the jet planes in and out of the airport, and from this time on the number of flights substantially increased. In 1954, they ranged from 296 to 675 per month; in 1955, from 523 to 721; and in 1956, from 489 to 1001.

The use and enjoyment of their properties by plaintiffs during 1952 could not have been substantially interfered with, since there was an average of only two flights a day over their properties. In January 1953, they increased to something over four a day, and by the end of the year they had increased to ten or twelve a day. We think that some time during 1953 there was substantial interference with plaintiffs' use and enjoyment of their properties. The Trial Commissioner fixed August 1953 as the date of the taking, because at that time Air Force pilots began making test flights. We do not think this is determinative, but the record does not show substantial interference before that date, but it does show it thereafter. Hence, we see no reason to depart from the date fixed by the Trial Commissioner. Plaintiffs' counsel in oral argument accepted that date as the one on which the statute of limitations began to run.

That was about 18 months after the defendant began joint operation of the airport, and after the flights had...