Batcheller v. Commonwealth Ex Rel. Rector And Visitors Of Univ. Of Va.

• Decision Date: 05 September 1940
• Citation: 10 S.E.2d. 529
• Court: Virginia Supreme Court
• Parties: BATCHELLER et al. v. COMMONWEALTH ex rel. RECTOR AND VISITORS OF UNIVERSITY OF VIRGINIA.

10 S.E.2d. 529

BATCHELLER et al.

v.COMMONWEALTH ex rel. RECTOR AND VISITORS OF UNIVERSITY OF VIRGINIA.

Supreme Court of Appeals of Virginia.

Sept. 5, 1940.

Appeal from State Corporation Commission.

Proceeding by the Commonwealth, on the relation of the Rector and Visitors of the University of Virginia, for a permit for the establishment, maintenance, operation, and conduct of an airport and landing field, opposed by Henry E. Batcheller and others. The State Corporation Commission of Virginia granted the permit, and Henry E. Batcheller and others appeal.

Order of the Commission granting permit affirmed.

Argued before CAMPBELL, C. J, and HOLT, HUDGINS, GREGORY, BROWNING, EGGLESTON, and SPRATLEY, JJ.

Leon M. Bazile and R. E. Peyton, Jr., both of Richmond, for appellants.

Abram P. Staples, Atty. Gen, and W. W. Martin, Asst. Atty. Gen., for the Commonwealth.

GREGORY, Justice.

The Rector and Visitors of the University of Virginia made an application pursuant to the provisions of Code, §§ 3775a to 3775n and 3074a to 3074i, to the State Cor poration Commission for a permit for "the establishment, maintenance, operation and conduct of an airport and/or landing field for the landing and departure of civil aircraft engaged in commercial aviation" to be located near the city of Charlottesville on 178 acres of land formerly known as the "W. D. Haden Farm." The permit was granted over the opposition of the appellants.

The University offers a course in Aeronautical Engineering as a branch of its Department of Engineering. It had no airport and of course could not give an entirely satisfactory course in this branch of the department. It was also prohibited from taking advantage of the flight instruction and other benefits made available by the Federal government at little or no expense to the University, because it had no airport.

A large number of colleges and universities throughout the United States have participated in the program of the Civil Aeronautics Authority to the end that aviation may be stimulated through educational and subsidized flight training. In order for the University to take advantage of these provisions, it became essential that it have an airport, and it therefore leased the "W. D. Haden Farm" for the purpose. An option to purchase the farm for $17,800 was also secured. There being no appropriation from the State to pay for the land, the Governor of Virginia authorized the University to incur a deficit in its appropriation to take advantage of the option. The option was exercised and the land now belongs to the University. The deficit was satisfied by an appropriation by the General Assembly of 1940. Acts of 1940, p. 797, c. 425.

Under the program of the Civil Aeronautics Authority, flight instructors are provided by the Authority while the selection of students and the administration and supervision of the airport are left to the University. An associate professor of engineering has been appointed as Director of Aeronautical Training and he will control the airport. Flight instruction will be given by a licensed commercial pilot, approved by the University. He agrees with the Authority to furnish a certain amount of flight training. The aircraft to be used by the pilot or operator is furnished by him and not by the University. The University receives $20 from the Authority for each student for ground instruction, and the op-erator receives from $270 to $290 per student for flight training.

The site of the airport was approved by the Authority, and, as already indicated, the State Corporation Commission issued the permit applied for by the University. The full quota of students, forty in number, were being instructed at the time of this appeal.

The appellants appeared before the commission and opposed the issuance of the permit. They contended there, and now contend, that (1) the commission had no power to grant to the University the permit applied for, and (2) the University had no authority to operate an airport such as was contemplated in the permit granted.

The commission, in an elaborate and exhaustive opinion by Commissioner Fletcher, resolved both contentions against the appellants. It found that the University is a public corporation and a governmental agency of the Commonwealth; that the aircraft proposed to be engaged in the training of students will be civil aircraft engaged in commercial aviation within the meaning of Chapter 445 of the Acts of 1936, particularly Code, § 3775l; that the University is entitled to the permit and license applied for; and that an airport is necessary to the purposes of the University.

Judge Fletcher in his opinion summarized the objections of the appellants to the airport thus:

"(1) That the section surrounding the proposed site is residential, closely settled for a rural community, and that some of the finest houses in Albemarle county are in the immediate vicinity;

"(2) That the great attractions to the neighborhood adjacent to the proposed airport are the hunting facilities and its suitability for growing pedigreed horses, cattle, and other live-stock, and that the Keswick Hunt Club draws not only visitors for the season, but many permanent residents, greatly improving the value of property throughout the section;

"(3) That the noise of planes close to the ground in warming up, ascending and landing would be most objectionable and greatly affect the comfort and peace of mind of residents in the neighborhood, and would lead to a depreciation of property values for a considerable distance from the immediate area of the field proposed, and this would be particularly true if used as a student flying school;

"(4) That the menace of accidents which would most probably be incident to a school for flying would be a hazard which would affect the desirability of living in the area, and, therefore, property values would decrease disastrously in case of those owning property in the immediate vicinity of Milton and Shadwell;

"(5) That not very far from the University of Virginia there were other locations available, far less thickly settled, where land values are not so high, which could be used for the purpose of establishing a school for flying and where it would not constitute so serious a nuisance nor affect property values so considerably to the detriment of so many property owners and tax returns to the State and county."

Three of the appellants appeared before the commission in person and testified. Their testimony tended to sustain the objections previously adverted to and summarized by Judge Fletcher, who painstakingly disposed of the major objections in this language, which we adopt as our own:

"Some of the contentions of the objectors will be considered. The contention * * * that an airport is a nuisance per se is not well founded. It is well established by the authorities that an airport, landing field or flying school is not a nuisance per se.

"In 2 C.J.S., Aerial Navigation, page 909, § 29, it is said: 'An airport, landing field or flying school is not a nuisance per se, although it may become a nuisance from the manner of its construction or operation; in other words, it can be regarded as a nuisance only if located in an unsuitable place or if operated so as to interfere unreasonably with the comfort of adjoining owners.'

"In Swetland v. Curtiss Airports Corporation, D.C., 41 F.2d 929, 932, modified on other grounds in 6 Cir., 55 F.2d 201, 83 A. L.R. 319, it is said: 'In view of this declared legislative policy, we have no difficulty in arriving at the conclusion that a private airport, flying school, or landing field such as the defendants propose to operate is not a nuisance per se. It is obvious that although aviation is still to some extent in the experimental stage, it is of great utility in times of peace, and will be a great protection to the nation in times of war. In fact, it is indispensable to the safety of the nation that airports and flying schools such as contemplated by the defendants be encouraged in every reasonablerespect. An airport, landing field, or flying school can be regarded as a nuisance-only if located in an unsuitable location (Euclid v. Ambler Realty Co., 272 U.S. 365, 388, 47 S.Ct. 114, 71 L.Ed. 303, 54 A.L.R. 1016; 46 C.J. 666) or if operated so as to interfere unreasonably with the comfort of adjoining property owners.'

"The contention that the permit in question should not be granted on account of the annoyance arising from the warming up of airplanes on the proposed field is untenable. The evidence showed that the homes of those objecting to the granting of the permit were over one-half mile therefrom and the Commission properly took judicial notice of the fact that any such noise could not possibly occasion any of the objectors any annoyance. Neither would the noise arising from the operation of the planes in the air when flying in the vicinity of or neat the houses of the objectors constitute a reason for the denial of the permit, as there was no evidence to show that if the permit should be granted, the planes would not fly at a proper altitude, and it may here be noted that under § 3775n of the Code of Virginia 1936, the Commission has jurisdiction to regulate the altitude at which planes shall fly and to enjoin their improper flying.

"In Swetland v. Curtiss Airports Corporation supra, it is said: 'It is claimed that certain obnoxious features arise out of the operation of the airport, and it is necessary that we consider them in detail. Complaint is made that there is certain noise arising from the warming up of airplanes and in their operation over the property of the plaintiffs; and noise may be of such a character as to constitute a nuisance. 46 C.J. 683 et seq.; 20 R.C.L. 445. But we are of the opinion that the noise from the operation of the airport, as the evidence shows the defendants will operate it, and the noise of the airplanes when flying at proper altitudes, are not of such a degree as to annoy...