Batten v. United States, 6684.

• Decision Date: 20 June 1961
• Docket Number: No. 6684.,6684.
• Citation: 292 F.2d 144
• Parties: William J. BATTEN and Katie M. Batten, his wife; Donald G. Becker and Opal M. Becker, his wife; Benjamin Hall Brodnax and Mary Joy Brodnax, his wife; Don T. Campbell and Leta Mae Campbell, his wife; Orval R. Coombs and Anita M. Coombs, his wife; Ernest S. Horton and Margaret U. A. Horton, his wife; Ivan F. Huhs and Bernadine M. Huhs, his wife; Thomas N. Lee and Gladys M. Lee, his wife; Clyde A. Lewis and Dorothy L. Lewis, his wife; Edward Dale Moore and Faye L. Moore, his wife; Dennie D. Smith and Nellie R. Smith, his wife; John W. Stephens and Vada Stephens, his wife; John W. Tothill and Glee I. Tothill, his wife; and Ralph C. Weed and Mary T. Weed, his wife, Appellants, v. UNITED STATES of America, Appellee.
• Court: U.S. Court of Appeals — Tenth Circuit

292 F.2d 144 (1961)

William J. BATTEN and Katie M. Batten, his wife; Donald G. Becker and Opal M. Becker, his wife; Benjamin Hall Brodnax and Mary Joy Brodnax, his wife; Don T. Campbell and Leta Mae Campbell, his wife; Orval R. Coombs and Anita M. Coombs, his wife; Ernest S. Horton and Margaret U. A. Horton, his wife; Ivan F. Huhs and Bernadine M. Huhs, his wife; Thomas N. Lee and Gladys M. Lee, his wife; Clyde A. Lewis and Dorothy L. Lewis, his wife; Edward Dale Moore and Faye L. Moore, his wife; Dennie D. Smith and Nellie R. Smith, his wife; John W. Stephens and Vada Stephens, his wife; John W. Tothill and Glee I. Tothill, his wife; and Ralph C. Weed and Mary T. Weed, his wife, Appellants, v. UNITED STATES of America, Appellee.

No. 6684.

United States Court of Appeals Tenth Circuit.

June 20, 1961.

Harvey D. Ashworth and Raymond L. Spring, Topeka, Kan. (A. Harry Crane, Ward D. Martin, and Arthur L. Claussen, Topeka, Kan., on brief), for appellants.

Roger P. Marquis, Washington, D. C. (Ramsey Clark, Dallas, Tex., and Newell A. George, Kansas City, Kan., on brief), for appellee.

Before MURRAH, Chief Judge, and BRATTON and BREITENSTEIN, Circuit Judges.

PER CURIAM.

The appellants in this appeal are owners of residential property adjacent to the ramps and warm-up pads where military jet aircraft regularly warm up, take off and land, at Forbes Airforce Base near Topeka, Kansas. They brought this class action under the Tucker Act (28 U.S.C.A. § 1346(a) (2)), claiming that the aircraft, while landing, taking off and warming up, "and particularly while advancing the engines to near maximum power on the said warm-up pad area, cause to be heard and felt terrific and overwhelming vibrations and sound waves, directed and transmitted from the said engines over, across, against and upon the properties owned by plaintiffs; that there is also emitted from the said engines exhaust fumes and heavy black smoke which are directed and transmitted over, across, against and upon the properties * * * at all hours of the day and night, and at all times during the week" to the permanent injury and damage to their property. It was alleged that the United States had thus created a servitude upon the property of the plaintiffs amounting to a constitutional taking for which just compensation is due.

The trial court reserved ruling on the Government's motion to dismiss for failure to state a claim, and also the motion to dismiss and for a directed verdict at the conclusion of the plaintiffs' case. At the conclusion of the entire case, the court announced that it would first consider and determine the legal question presented by the motions to dismiss and for a directed verdict. The court finally...