Atkinson v. Bernard, Inc.

• Decision Date: 14 September 1960
• Citation: 223 Or. 624,355 P.2d 229
• Parties: Donald ATKINSON et al., Respondents and Cross-Appellants, v. BERNARD, INC., a corporation, Appellants.
• Court: Oregon Supreme Court

Page 229

355 P.2d 229

223 Or. 624

Donald ATKINSON et al., Respondents and Cross-Appellants, v. BERNARD, INC., a corporation, Appellants.

Supreme Court of Oregon, Department 1.

Argued and Submitted June 8, 1960.

Decided Sept. 14, 1960.

Winfrid K. Liepe, Portland, argued the cause for appellant. With him on the briefs were William H. Morrison, Portland, Carrell F. Bradley, Hillsboro, Stuart W. Richardson, and Maguire, Shields, Morrison, Bailey & Kester, Portland.

Wayne Hilliard, Portland, argued the cause of respondents-cross-appellants. With him on the brief were William J. Moshofsky and Koerner, Young, McColloch & Dezendorf, Portland.

Before McALLISTER, C. J., and ROSSMAN, WARNER, GOODWIN and HOLMAN, JJ.

GOODWIN, J.

The defendant operator of a small airport appeals, and the plaintiff landowners cross-appeal, from a decree of the circuit court enjoining part, but not all, of the flights from the airport over the lands of the plaintiffs. The parties will be referred to in this opinion as the Airport and the plaintiffs.

In 1918 the Airport commenced operation about one mile north of the city center of Beaverton. The Airport serves mainly single-engine, non-commercial aircraft of the type commonly flown for business and pleasure by persons having private licenses as distinguished from larger aircraft found in military and airline service. The present runway is about 2,500 feet long.

Some time after 1948, a suburban residential area known as Cedar Hills was developed directly north of the airport. Building sites and homes were sold to persons desiring to purchase them. Some 68 property owners joined as plaintiffs in 1955 in the present suit, and 21 of them testified at the trial. The plaintiffs located nearest the airport are approximately 1,000 feet north of the runway. Others are located at varying distances greater than 1,000 feet from the end of the runway, but all are within an area affected in some degree by the sound of aircraft landing and taking off.

The evidence showed that during fair weather the wind commonly blows from the north, and most of the flights take off toward the north during fair weather. The evidence further showed that a substantial number of flights take place early on Sunday mornings when the air is calm but when the plaintiffs are not necessarily ready to greet the new day.

The complaint alleged that, in taking off over the plaintiffs' homes, the planes fly at altitudes varying from 50 to 300 feet above the rooftops, and in so doing create noises and vibrations which substantially interfere with the use and enjoyment of the lands of the plaintiffs. There was testimony in support of these allegations, but the matter of altitude was sharply disputed.

The complaint further alleged that such flights constitute a hazard. There was evidence that during the past thirty years at least two planes had crashed to the north of the airport premises and near the property occupied by certain of the plaintiffs. Two others had crashed to the south of the airport. The plaintiffs expressed concern that future crashes could be expected with disastrous results for nearby householders.

The plaintiffs demanded an injunction of all flights taking off to the north, as such flights necessarily pass over one or more of their homes before gaining cruising altitude. As the only runway lies north and south, such an injunction would, for all practical purposes, put an end to fair-weather flying from the airport. During the winter, the evidence showed, the prevailing winds are from the south.

The trial judge viewed the premises, and, upon stipulation of the parties, observed a demonstration of several flights over the property of the plaintiffs.

The decree enjoined flights taking off over the property of the plaintiffs by all aircraft which make 'appreciably more noise than [a certain 1954 Piper Tri-Pacer 135 HP owned at that time by the State of Oregon].'

The Airport appeals from the decree, contending that it is too vague and indefinite for enforcement. The plaintiffs cross-appeal and demand an end to all take-offs over their lands.

No decibel readings or other objective acoustical data were made available to the trial court. The evidence showed that atmospheric conditions have some influence upon what those on the ground may hear as the result of flights over their property, but the nature and extent of such influence was undisclosed.

There are a number of problems raised in the briefs and argued before this court, but the principal question dealt with below was the extent to which the plaintiffs were entitled to noise abatement.

The trial court found, and the evidence supports the finding, that at least some of the plaintiffs were annoyed and inconvenienced by the noise of unspecified 'larger' or 'noisier' planes taking off over their rooftops. The noise on take-off bears some relation to the kind of engine, the pitch of the propeller, and the angle of climb between the time the plane leaves the runway and the point where it reaches flying or cruising altitude. The evidence left the exact relationship somewhat obscure, but mere size of aircraft alone appeared to be less significant than the other factors.

Here we are dealing with a privately operated airport and the question of enjoining certain flights, all of which, to some extent, invade the airspace below navigable heights and above the surface. This was the situation in Anderson v. Souza, 38 Cal.2d 825, 844, 243 P.2d 497, 509. There the court indicated that the landowners were entitled to limited relief and remanded the cause for further evidence.

To the facts in the instant case, the trial court applied the 'privileged trespass' theory found in the Restatement, 1 Torts 460, § 194 (1934). The Restatement rule is as follows:

'Travel Through Air Space.

'An entry above the surface of the earth, in the air space in the possession of another, by a person who is traveling in an aircraft, is privileged if the flight is conducted

'(a) for the purpose of travel through the air space or for any other legitimate purpose,

'(b) in a reasonable manner,

'(c) at such a height as not to interfere unreasonably with the possessor's enjoyment of the surface of the earth and the air space above it, and

'(d) in conformity with such regulations of the State and federal aeronautical authorities as are in force in the particular State.'

This court referred to the above-quoted section of the Restatement when it said in a dictum in 1948:

'* * * Air travel over a plaintiff's land is still recognized as trespass prima facie imposing liability but the rights of airplane travel are established or recognized by the doctrine of privilege * * *.' Amphitheaters, Inc., v. Portland Meadows, 184 Or. 336, 344, 198 P.2d 847, 850, 5 A.L.R.2d 690.

Under the 'privileged trespass' theory, two considerations determine whether the invasion of the landowner's airspace will be privileged: (1) the flight itself must be reasonable, thus eliminating stunting, whimsical changes of propeller pitch and the like, at altitudes which affect those on the ground; and (2) the flights must be at such a height as not to interfere unreasonably with the enjoyment of the surface by the person in possession. See Anderson v. Souza, supra; Brandes v. Mitterling, 67 Ariz. 349, 196 P.2d 464; Delta Air Corporation v. Kersey, 193 Ga. 862, 20 S.E.2d 245, 140 A.L.R. 1352. As will be seen later, reasonableness becomes the key issue in each case.

It is the process of becoming airborne which causes the difficulty in the case now before the court, as in most of the litigation elsewhere. A partial bibliography, together with a challenging presentation of the 'take-off' problem, may be found in William B. Harvey, Landowners' Rights in the Air Age: The Airport Dilemma, 56 Mich.L.Rev. 1313 (1958).

Most heavier-than-air flying machines presently used by private citizens require a horizonal space beyond the end of the runway in which to ascend or descend to or from a flying, or cruising, altitude. The so-called glide-angle or 'glide plane' needed for taking off may vary from a ratio of seven feet of horizontal movement to one foot of ascent or descent for light aircraft of modest speed to a ratio of 50 to 1 for high-powered planes of greater weight and velocity. Harvey, 56 Mich.L.Rev., supra at 1314.

Many courts have considered the problems which are inherent in every airport lacking sufficient surface ownership to escort its patrons aloft to navigable airspace entirely over its own land. As noted by Professor Harvey:

'If the prime method for ascertaining the limits of the ownership-trespass zone in airspace is by determining whether the landowner's use and enjoyment of the surface have been subjected to unreasonable interference, it is apparent that the concept of nuisance is equally available with trespass as an analytical tool. In fact, some decisions range freely over both the trespass and the nuisance rationales--the airspace zone in which intrusion by aircraft would be a nuisance apparently being considered in certain opinions as coterminous with that in which it would constitute a trespass * * * [citing cases], while others which rely upon nuisance as the ground of decision might easily be interpreted in trespass terms * * * [citing cases].' 56 Mich.L.Rev., supra at 1315.

At the point where 'reasonableness' enters...