Bydlon v. United States

• Decision Date: 15 July 1959
• Docket Number: 480-55.,No. 421-55,421-55
• Citation: 175 F. Supp. 891
• Parties: Andrew BYDLON, John D. Hanson, Joseph Perko, Martin Skala, Jr., and William Zupancich v. UNITED STATES. TAITO AHOLA, Toimi Ahola, Leithold Seaplane Service, Inc., Arne Lynn, Jacob Pete, and Elwyn West v. UNITED STATES.
• Court: U.S. Claims Court

175 F. Supp. 891

Andrew BYDLON, John D. Hanson, Joseph Perko, Martin Skala, Jr., and William Zupancich v. UNITED STATES.

TAITO AHOLA, Toimi Ahola, Leithold Seaplane Service, Inc., Arne Lynn, Jacob Pete, and Elwyn West v. UNITED STATES.

Nos. 421-55, 480-55.

United States Court of Claims.

July 15, 1959.

William W. Essling, St. Paul, Minn., Thomas Marlone, St. Paul, Minn., and Willard S. Domich, Ely, Minn., on the briefs, for plaintiffs.

Thomas L. McKevitt, Washington, D. C., with whom was Perry W. Morton, Asst. Atty. Gen., for defendant.

PER CURIAM.

This is an action by the plaintiffs for the taking of their property as a result of the proclamation of Executive Order No. 10092, dated December 17, 1949, which banned and prohibited travel by air below 4,000 feet over the roadless areas of the Superior National Forest in northern Minnesota.

This case was referred by the court, pursuant to Rule 45(a), 28 U.S.C.A., to Trial Commissioner C. Murray Bernhardt, with directions to make findings of fact and recommendations for conclusions of law which he has done in his report filed September 8, 1958.

The court, having considered the evidence, the briefs and argument of counsel, adopts the findings and opinion of the Trial Commissioner with slight modifications.

The plaintiffs, Zupancich and Skala, are entitled to recover just compensation in the respective amounts of $25,000 and $30,000, with interest thereon at four percent per annum from January 1, 1952, to date of payment as part of just compensation, and judgment will be entered to that effect. The petition as to the other plaintiff in case No. 421-55 will be dismissed, and the petition in case No. 480-55 will also be dismissed.

It is so ordered.

WHITAKER, Judge, dissenting in part and concurring in part, in which District Judge ALBERT V. BRYAN (sitting by designation) joins:

The per curiam opinion of the majority adopts the opinion of the Trial Commissioner with certain modifications. That opinion determines the right to compensation of the plaintiffs who owned resorts within the area upon whether or not they had a way of necessity through the air space over the Superior National Forest in order to reach their properties. The Commissioner concluded that plaintiffs Zupancich and Skala did have such a way of necessity, but that plaintiffs Pete and Hanson did not. Judgment was rendered in favor of Zupancich for $25,000, and in favor of Skala for $30,000. The petitions of Pete and Hanson were dismissed.

I think the amount of the judgments rendered in favor of Zupancich and Skala are correct, but that it was error to dismiss the petition as to Pete and Hanson. I think this was error because I do not think their rights depend on whether or not they had a way of necessity. I think all of the resort owners had a right of access to their properties by air, because the air is a public highway. This right of access by air is a property right, which cannot be taken away from them without the payment of just compensation, when it is taken for the sole purpose of preserving this area as a wilderness area, as it admittedly was.

The right of access to one's property over established public highways is a property right appurtenant to the property abutting on the highway. The rights of the public in general in public highways and the rights of owners of property abutting thereon are extensively discussed in an opinion by Mr. Justice Harlan, speaking for a unanimous court, in Donovan v. Pennsylvania Co., 199 U.S. 279, beginning on page 300, 26 S.Ct. 91, beginning on page 96, 50 L.Ed. 192. The entire discussion is of interest, but, for the sake of brevity, I quote only the following quotation from Dillon on Municipal Corporations, 199 U.S. at pages 302-303, 26 S.Ct. at page 98, of the Court's opinion:

"The general doctrine is correctly stated in Dillon on Municipal Corporations: `For example, an abutting owner's right of access to and from the street, subject only to legitimate public regulation, is as much his property as his right to the soil within his boundary lines. * * * When he is deprived of such right of access, or of any other easement connected with the use and enjoyment of his property, other than by the exercise of legitimate public regulation, he is deprived of his property.'"

This question is elaborately discussed in the New York Elevated cases (Story v. New York Elevated R. Co., 90 N.Y. 122), which is referred to with approval by the Supreme Court of the United States in Sauer v. City of New York, 206 U.S. 536, 545, 27 S.Ct. 686, 51 L.Ed. 1176. In the Sauer case this right of access to one's property over the public highways is fully recognized, but the distinction is there drawn between an impairment in the right of access brought about by improvements in the public highway for the purpose of travel, and the imposition of an additional use upon the highway which was not for the purpose of public travel, but for some other purpose. The sovereign is not liable for impairments which arise from its improvements to facilitate travel, but it is liable for damage which results from the imposition of an additional use.

The same principle applies to navigable waters. An owner whose property is riparian to a navigable stream has the right of access to the navigable stream (Yates v. Milwaukee, 10 Wall. 497, 504, 505, 19 L.Ed. 984; United States v. River Rouge Imp. Co., 269 U.S. 411, 418, 419, 46 S.Ct. 144, 70 L.Ed. 339), but this right of access is subject to the dominant servitude of the United States to take all necessary steps to improve navigation, and may be taken away, with impunity, in the course of such improvements.

In United States v. Commodore Park, Inc., 324 U.S. 386, 390, 65 S.Ct. 803, 89 L.Ed. 1017, the Government dredged a tidewater navigable bay and deposited the dredged materials in the mouth of a navigable arm of the bay called Mason Creek. The residential property owners on Mason Creek were thus deprived of access to navigable waters and, accordingly, the value of their property decreased. The Court refused recovery, basing its refusal on the ground that plaintiff's riparian rights were subservient to the Government's power to control commerce. The Court states at page 391 of 324 U.S., at page 805 of 65 S.Ct.:

"* * * As against the demands of commerce, an owner of lands adjacent to navigable waters, whose fast lands are left uninvaded, has no private riparian rights of access to the waters * * *. Riparian rights of access to navigable waters, cannot, as against the government's power to control commerce, be bought and sold."

However, this superior right or servitude which the Government possesses relieves it of its duty to pay compensation only when it acts under its power to regulate and improve commerce. Yates v. Milwaukee, supra, and United States v. River Rouge Imp. Co., supra. If it acts for some other purpose, such as the reclamation of arid lands, then it must pay just compensation for the taking of riparian rights. Gerlach Live Stock Co. v. United States, 76 F.Supp. 87, 111 Ct. Cl. 1. Cf. State of Kansas v. State of Colorado, 206 U.S. 46, 85-86, 27 S.Ct. 655, 51 L.Ed. 956. The Constitution vests in the national Government dominant power over the use of navigable waters only for the purpose of regulating commerce on them. If the Government appropriates them to its own use for some other purpose, or diverts them from the riparian owner for the use of another, it does so under its power of eminent domain, the exercise of which requires the payment of just compensation.

The air space over the United States is also a public highway, which the owner of property has the right to use to secure access to his property. Congress in section 3 of the Civil Aeronautics Act of 1938 (52 Stat. 973; 49 U.S.C.A. § 401, et seq.) declared: "There is recognized and declared to exist in behalf of any citizen of the United States a public right of freedom of transit in air commerce through the navigable air space of the United States."

As in the case of navigable waters, the nation has a dominant servitude in the air for the purpose of air commerce. It gets this servitude over the air, as it does over navigable waters, from the provision in the Constitution giving it the power to regulate interstate and foreign commerce. Braniff Airways, Inc. v. Nebraska State Board, 347 U.S. 590, 74 S.Ct. 757, 98 L.Ed. 967. The ownership of the air space is in the states or in the owner of the surface, United States v. Causby, 328 U.S. 256, 66 S.Ct. 1062, 90 L.Ed. 1206; Matson v. United States, Ct.Cl., 171 F.Supp. 283, opinion by Mr. Justice Reed, (ret.) but it is subject to this servitude in the United States for the purpose of regulating commerce.

The right of the United States in the air space above the surface of the United States was carefully stated in Braniff Airways, Inc. v. Nebraska State Board, supra, from which I quote, 347 U.S. at pages 595-597, 74 S.Ct. at page 761:

"These Federal Acts regulating air commerce are bottomed on the commerce power of Congress, not on national ownership of the navigable air space, as distinguished from sovereignty. In reporting the bill which became the Air Commerce Act, it was said:

"`The declaration of what constitutes navigable air space is an exercise of the same source of power, the interstate commerce clause, as that under which Congress has long declared in many acts what constitutes navigable or nonnavigable waters. The public right of flight in the navigable air space owes its source to the same constitutional basis which, under decisions of the Supreme Court, has given rise to a public easement of navigation in the navigable waters of the United States, regardless of the ownership of the adjacent or subjacent soil.' H.R.Rep. No. 572, 69th Cong., 1st Sess., p. 10.

"The commerce power, since Gibbons v. Ogden, 9 Wheat. 1, 193, 6 L.Ed. 23, has comprehended navigation of streams. Its breadth covers all commercial

...