Bacon v. United States

• Decision Date: 01 November 1961
• Docket Number: No. 333-58.,333-58.
• Citation: 295 F.2d 936
• Parties: Kate Mock BACON (1), Bertha Mock Davis, Stella Mock Hunter, Kate Mock Bacon, and Alma Mock Hilsman, A Partnership Doing Business As Baker Heights (2), Stella Mock Hunter (3), J. W. Mock (4), J. W. Mock, Jr. (5), L. Eugene Mock, Sr. (6), L. Eugene Mock, II (7) v. UNITED STATES.
• Court: U.S. Claims Court

295 F.2d 936 (1961)

Kate Mock BACON (1), Bertha Mock Davis, Stella Mock Hunter, Kate Mock Bacon, and Alma Mock Hilsman, A Partnership Doing Business As Baker Heights (2), Stella Mock Hunter (3), J. W. Mock (4), J. W. Mock, Jr. (5), L. Eugene Mock, Sr. (6), L. Eugene Mock, II (7) v. UNITED STATES.

No. 333-58.

United States Court of Claims.

November 1, 1961.

Alvin O. West, Washington, D. C., for plaintiffs. B. C. Gardner, Jr., and Asa D. Kelley, Jr., Albany, Ga., on the briefs.

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

LARAMORE, Judge, delivered the opinion of the court.

The plaintiffs, owners of several tracts of land and improvements near the City of Albany, Georgia, sue for the value of an interest in said properties, allegedly taken by defendant by operating aircraft at Turner Air Force Base.

The real estate owned by plaintiffs was acquired either by purchase or inheritance at various times during the period 1923 to 1946 and is located just to the southwest of Turner Air Force Base.

Turner Air Force Base was activated by defendant on May 15, 1941, and was used throughout World War II for preflight training of aviation cadets and for training pilots for propeller-driven fighter and bomber aircraft. Until the cessation of hostilities, many different types of aircraft were used for training, including the propeller-driven B-25 medium bomber. During this period of time, B-25s made numerous flights at elevations as low as approximately 250 to 300 feet over all the plaintiffs' properties, and on occasion such flights would be as low as approximately 100 to 150 feet over such properties. These planes, including the B-25 bombers used at the Base commencing in 1943, were noisy but were not so obnoxious as to be intolerable to plaintiffs.

On September 1, 1947, Turner Field was reactivated and transferred to the Tactical Air Command. In January 1948 the Field was redesignated Turner Air Force Base. Shortly after December 1, 1948, the fighter group operating from said Base was equipped with P-51 single engine, propeller-driven aircraft. In September 1948, some F-84C single engine, jet-propelled fighter planes were assigned to the Base.

Thereafter, different types of jet-propelled aircraft were assigned to the Base as they were developed. An increasing number of flights occurred in the years following, when jet aircraft commenced regular low flights over the properties.

It is the government's position that in the present case the plaintiffs' cause of action accrued in 1941, and certainly no later than 1948 or early 1949, when F-84 aircraft commenced full operations and started to make low and frequent flights over the premises, and this suit is barred by the statute of limitations, 28 U.S.C. § 2501.

The basic issue in this case, therefore, is essentially factual; i. e., when did the flights over plaintiffs' land amount to a taking by the defendant under the standard established by the Supreme Court in United States v. Causby, 328 U.S. 256, 66 S.Ct. 1062, 90 L.Ed. 1206.

This standard is that when flights over private lands constitute a direct and immediate interference with the enjoyment and use of the land by plaintiffs, there is a compensable taking under the Fifth Amendment.

Turning then to the facts of this case — it is quite evident that while there was some noise and inconvenience to plaintiffs from the time the flights commenced in 1941, it was not so obnoxious as to be intolerable to plaintiffs. Even upon reactivation of the Field in 1947, while the use of P-51s and later the single engine jet T-33s, F-80s, F-84Cs, F-84Es, and F-84Gs, created greater noise and were still more annoying than the planes previously used, the noise was still not intolerable to plaintiffs and their families.

From 1947 to approximately the summer of 1955, the effect of the flights was not such as to interfere substantially with the use of plaintiffs' properties as residential properties. However, the value of plaintiffs' properties was diminished by the increased noise and nuisance of the newer and more powerful types of jet planes introduced at the Base in the latter part of 1954 (principally the F-84Fs, with their terrifyingly loud, shrill noise), the increased flight activity at the Base commencing in 1955, and the consequent more frequent low flights over the properties, and finally and more dramatically, by a later described plane crash in August 1955, following which the usual forms of VA, FHA, and conventional financing for residential properties became unobtainable with respect to transactions in properties located in the approach zones, as were plaintiffs' properties. After August 1955, the marketability of such properties was seriously affected adversely by such financing restrictions. The introduction of the very large and even noisier eight engine B-52 jet bombers in 1959 and their frequent low flights plaintiffs' properties made such properties even less desirable as residential property and further reduced their market value.

There have been some differences in the flight pattern since runway No. 2 was opened in 1959, as...