Burnham v. Beverly Airways, Inc.

• Citation: 311 Mass. 628,42 N.E.2d 575
• Parties: BURNHAM et al. v. BEVERLY AIRWAYS, Inc., et al.
• Decision Date: 29 May 1942
• Court: United States State Supreme Judicial Court of Massachusetts

311 Mass. 628

42 N.E.2d 575

BURNHAM et al.

v.BEVERLY AIRWAYS, Inc., et al.

Supreme Judicial Court of Massachusetts, Essex.

May 29, 1942.

Suit in equity by Mary C. Burnham and others against the Beverly Airways, Inc., and others to enjoin and recover damages for alleged nuisance and trespasses resulting from defendants' maintenance of an airport and flying of airplanes over plaintiffs' land. From a decree granting an injunction and awarding plaintiffs' nominal damages, defendants appeal.

Modified, and affirmed as modified.Appeals from Superior Court, Essex County; Broadhurst, Judge.

Before FIELD, C. J., and QUA, DOL and RONAN, JJ.

S. S. Ganz and E. R. Anderson, both of Boston, for plaintiffs.

S. J. Cagan and S. S. Cagan, both of Beverly, for defendants.

QUA, Justice.

The plaintiffs are the owners of a country estate of approximately one hundred seventy-four acres of land in Wenham, on which are located a commodious dwelling house, a garage, and a water tower. At a distance of over four thousand feet from the main house are other buildings occupied by a caretaker. The buildings last mentioned do not enter into this controversy. The defendant Beverly Airways, Inc., under an arrangement with the city of Beverly, operates for profit an airport on forty acres of land on which the city has a leasehold. The airport lies contiguous to and southwest of the plaintiffs' estate. The individual defendants are the president and treasurer respectively of the corporate defendant. The plaintiffs sue to enjoin the nuisance and trespasses alleged to result from the maintenance of the airport and the flying of airplanes over the plaintiffs' property, and for damages.

All defendants appeal from a final decree enjoining all from permitting the operation of aircraft over the dwelling house and garage of the plaintiffs and the cultivated land and grounds immediately adjacent thereto and surrounding the same at a height of less than five hundred feet except when necessary for a safe emergency landing, and fixing damages in the sum of $1.

The following additional findings of the master should be here stated: The plaintiffs' dwelling is twenty-eight hundred feet from the nearest boundary of the airport and thirty-five hundred eighty feet from its central point. Adjacent to the plaintiffs' house are a garden, a lawn, and some grassland. Except for the territory immediately surrounding the dwelling house and garage, the plaintiffs' property is undeveloped and uncultivated and covered with dense brush and trees, with some swamp land. From the northeasterly boundary of the airport the plaintiffs' land slopes sharply into marshy territory and then rises to the location of the dwelling house at an altitude sixty feet higher than that of the airport. The chimney of the house is one hundred five feet above the airport. On the airport are a small office building, a shed for the storage of gasoline, and a steel hanger sixty feet square, all erected at a cost of about $4,000. A rotating tower light, with subsidiary lights, is maintained by the aeronautics board of the Federal government. There are no runways or flood lights. The surface is of sod. ‘A substantial lot of land’ to the west, northwest, and southwest of the forty acres has in some manner ‘become available for the airport's use.’ The defendant Beverly Airways, Inc., invites aircraft from other localities to its field. It is paid for storing, housing, and conditioning aircraft. It has owned seveal airplanes and carries passengers for hire and sells gasoline and other aircraft supplies. About fifty students take instruction at the field, but with no consistent regularity. Army and navy planes occasionally make temporary use of it. Activities there have gradually increased in recent years and will increase further, but it is still ‘a fairly modest project.’

Detailed findings directly bearing upon nuisance and trespass are these; The site of the airport was properly and reasonably selected. It is properly maintained and reasonably conducted. Noises emanating from the field itself do not reach the plaintiffs' dwelling house to cause discomfort. The existence of the airport and all flights of airplanes over the plaintiffs' property have not by noise or otherwise been such as to affect the health, habits, or material comfort of a normal person. Airplanes owned by Beverly Airways, Inc., as well as those owned by others and regularly stored at the airport and ‘visiting’ airplanes, in taking off and in landing, have flown over the plaintiffs' premises at altitudes of less than five hundred feet. When an airplane takes off in the direction of the plaintiffs' premises it necessarily passes over the boundary line at an altitude of less than one hundred feet, which gradually increases, depending upon the power of the plane and atmospheric conditons; but it continues for a ‘substantial’ distance at a height of less than five hundred feet over the wooded and the swampy parts of the plaintiffs' land. In general such flights will occur whenever atmospheric conditions make it necessary or convenient. An airplane owned by Beverly Airways, Inc., two other planes whose owners used the facilities of the airport, and two unidentified planes have, in taking off, passed over the plaintiffs' dwelling house and buildings at altitudes of approximately one hundred fifty feet. The frequency of such flights ‘is incapable of sound calculation.’ They have been ‘modestly frequent’ and ‘are the children of carelessness and not of malevolence.’ They are unnecessary except in the ‘remote instance’ of the presence of an ‘air pocket’ or ‘down- draught’ which very rarely exists, but when it does exist compels the pilot taking off in a northeast by north direction to pass over the plaintiffs' house or the contiguous grounds. In that event the ‘Piper Cub’ plane of the Beverly Airways, Inc., would under the most unfavorable conditions clear the house by one hundred feet. Under more favorable conditions a height of five hundred feet might be reached, ‘during which the plane could be safely deviated.’ Many modern aircraft could do better. Except for this rare contingency, no one conversant with the airport and adjoining territory need fly at any time at any altitude directly over the plaintiffs' dwelling house or contiguous grounds. The presence of a ‘downdraught’ is not always discernable until the plane is in the air.

Since the plaintiffs have not appealed, we are not concerned with any question as to whether the decree should have protected all of the plaintiffs' premises or should have been in any respect more favorable to the plaintiffs. We are concerned only with the question whether relief was properly granted to the extent of enjoining the defendants from operating or permitting the operation of aircraft over the plaintiffs' dwelling house and garage and the cultivated land and grounds immediately adjacent thereto at a height of less than five hundred feet, and with the allowance of damages of $1.

In view of the finding that the flights of airplanes over the plaintiffs' property have not been such as to affect the health, habits, or material comfort of a normal person it would seem that the decree cannot rest on the ground of nuisance as that term is commonly defined in this Commonwealth. Stevens v. Rockport Granite Co., 216 Mass. 486, 488, 489, 104 N.E. 371, Ann.Cas.1915B, 1054;Tortorella v. H. Traiser & Co., Inc., 284 Mass. 497, 501, 188 N.E. 254, 90 A.L.R. 1203;Smith v. New England Aircraft Co., Inc., 270 Mass. 511, 518, 170 N.E. 385, 69 A.L.R. 300. The inquiry remains whether the decree can be supported on the ground that the passage of airplanes over the plaintiffs' land at a height of less than five hundred feet amounted to a continuing trespass of sufficiently serious character to justify relief by injunction.

Almost the first, if not the very first, case in a court of last resort to deal with the relative rights of the aviator and the landowner was the case of Smith v. New England Aircraft Co., Inc., 270 Mass. 511, 170 N.E. 385, 69 A.L.R. 300, decided by this court in 1930. In so far as is material to the present inquiry we there held (1) that, in general, the statute of this Commonwealth (formerly G. L. c. 90, § 55, inserted by St.1922, c. 534, § 1), fixing a minimum altitude for the operation of aircraft over buildings or persons outside of thickly settled or business districts of not less than five hundred feet, and the regulations of the Secretary of Commerce made in pursuance of statutes of the United States and fixing the same minimum altitude for operation in interstate commerce were more than mere prohibitions upon the aviator and were in effect valid regulations, permissible under the police power, of the property rights of the landowner, establishing as against the latter the right of harmless flight at the required altitude over his land through space unoccupied by him (see 270 Mass. 511, at pages 518-526, 170 N.E. 385, 69 A.L.R. 300); (2) that exceptions in the statute permitting flying at lower altitudes while taking off and landing were not intended as legislative limitations upon the rights of landowners in the air space, since otherwise ‘they might authorize flights so near the surface of the land as to constitute unquestionable interference with the rights of the landowner,’ and that provision was made for landing places in other sections of the statutes (pages 526, 527 of 270 Mass., page 392 of 170 N.E.); (3) that flights below five hundred feet including those made in taking off or landing, might amount to trespass against the right of the landowner (pages 528-531 of 270 Mass.170 N.E. 385). The opinion does not assert that every flight below the level of the five hundred feet permitted by statute and regulation is a trespass, but it does assert that at least flights as low as one hundred feet ‘create in the ordinary mind a sense of infringement of property rights which cannot...