City of Jacksonville v. Schumann, F-297

• Decision Date: 18 August 1964
• Docket Number: No. F-297,F-297
• Parties: CITY OF JACKSONVILLE, a municipal corporation under the laws of Florida, Appellant, v. George SCHUMANN et ux., et al., Appellees.
• Court: Florida District Court of Appeals

Page 95

167 So.2d 95

CITY OF JACKSONVILLE, a municipal corporation under the laws of Florida, Appellant, v. George SCHUMANN et ux., et al., Appellees.

No. F-297.

District Court of Appeal of Florida, First District.

Aug. 18, 1964.

Rehearing Denied Sept. 18, 1964.

William M. Madison; Claude L. Mullis and Joe R. Young, Jr., Jacksonville, for appellant.

Duss, Butler & Nelson, Jacksonville, for appellees.

CARROLL, DONALD K., Acting Chief Judge.

The defendant city in an action for 'inverse condemnation' has filed this interlocutory appeal from an order entered by the Circuit Court for Duval County, denying its motions to dismiss and strike addressed to the plaintiff's second amended complaint.

In this appeal the principal question before us for determination is whether the said complaint sufficiently alleges a cause of action against the defendant. A secondary question is whether certain portions of the said complaint should have been stricken pursuant to the defendant's said motion to strike.

The basic allegations of the plaintiffs' second amended complaint are substantially as follows: That the plaintiffs, 57 in number, are the owners of lands on which they reside, in close proximity to the Imeson Airport, which is owned and operated by the defendant, a municipal corporation. That the city, commencing during World War II and thereafter, embarked upon a program of expanding the airport, acquiring additional lands both by purchase and by condemnation, some of it lying between the plaintiff's properties and the original airport location. That in 1962 the city completed an extension of the Northeast-Southwest main runway, under the directives and requirements of the Federal Aviation Agency for instrument runways, in order that the airport would become fully qualified to handle airplanes, both military and commercial, propelled by turbo-jet engines. That the Northeast end of this extension of the runway abuts a county road running through the plaintiffs' residential area and the approach to that end bisects the said road, so that the said area has been severed and cut into two parts, lying on either side of the end of the extended runway. That the city provides facilities at the airport for the Florida Air National Guard, and maintains a squadron of jet fighter pilots who currently fly military fighter planes 'which are the fastest and most powerful (and consequently noisiest) fighter planes in the world.' That the city also provides landing and take-off facilities for several commercial airlines, which daily operate approximately 90 flights in and out of the airport, at all hours of the day or night, using jet transport planes, most of them four-engined.

The plaintiffs further allege in their said complaint: That the said planes, both military and commercial, are operated every day through the air space above the plaintiffs' properties, at altitudes usually below 500 feet, the most common altitude being between 100 and 150 feet, with some flights below 100 feet. That all of the plaintiffs' said properties are within the area designated and defined by the Federal Aviation Agency as 'Area Recommended for Non-Residential Development and The Exclusion of Places of Public Assembly' in the Aircraft Noise Abatement Guide, published by the said agency in 1960 for the use and guidance of airport owners and operators who desire to provide airport facilities for the operation of jet-propelled aircraft.

The plaintiffs then allege in their second amended complaint that, by reason of the close proximity of the plaintiffs' properties, jet aircraft operated by the said Air National Guard and the said commercial airlines at times pass over the said properties at altitudes below 500 feet, the greater number of flights occurring at altitudes ranging from 100 to 150 feet; that while the said aircraft pass over the said properties or in close proximity thereto, and while landing, taking off, and warming up, and particularly while advancing the engines to near maximum power on the warm-up pads and taxiing strips appurtenant to the runways, the aircraft engines cause to be heard and felt 'terrific and overwhelming vibrations, concussions and sound waves directed and transmitted from said engines' against and upon the plaintiffs' properties; that there are also emitted from the said engines 'exhaust fumes, fuel gasses and heavy black smoke which are directed and transmitted' against and upon the said properties, which gasses, fumes, and smoke carry with them 'dust, debris, earth, and stones' which are propelled against and upon the said properties; that the said vibrations and concussions cause dishes and windows to rattle in the plaintiffs' homes and make it impossible for the plaintiffs and members of their families to carry on any conversation, and on occasion have caused structural damage to the plaintiffs' residences and have caused objects to fall from tables and shelves.

On the subject of damages the plaintiffs allege in their said complaint that the above conditions occur at all hours of the day and night and at all times during the week, to the permanent injury and damage to their properties; that they are unable to secure an uninterrupted night's sleep due to the irregularity of the said flights of jet planes; that the plaintiffs have suffered great physical and mental discomfort, fear, and distress from the operations of the airport, particularly since the advent of jet planes, and the value of their properties 'as residences or other use requiring the presence of human beings or animals has been destroyed.' The plaintiffs re-aver their allegation that all of their properties are within the area recommended by the Federal Aviation Agency as not suitable for residential development.

In paragraph numbered V of their said complaint, the plaintiffs reveal what they conceive to be the nature of their cause of action against the defendant city, as follows:

'As a direct and proximate result of the increased operation of jet planes from Defendant's Imeson Airport, which increased operation has taken place within the past two years, the Defendant has deprived the Plaintiffs of the free and unmolested use and quiet enjoyment of their respective properties, and Defendant has, by so doing, exercised dominion and control over, appropriated, confiscated and condemned the properties of the Plaintiffs, without just compensation, and without due process of law, contrary to the Constitution and laws of the State of Florida and of the United States of America.'

In paragraph VI of their said complaint the plaintiffs allege that by reason of the above-described conditions and of the depriving of the plaintiffs of their free and unmolested use and quiet enjoyment of their properties, and of the 'confiscation and condemnation of their properties by the defendant the Federal Housing Administration and the Veterans' Administration' will not insure or guarantee any loan to any person to buy, build, or construct any home or other building on the plaintiffs' properties, and 'no bank or other prudent lending institution will make a loan to any person for such purposes,' and that: 'By reason of these conditions, plaintiffs' properties have been condemned and made useless, as residential property, by the defendant, without due process of law, contrary to the Constitution and laws of the State of Florida and of the United States of America.'

In paragraph VII the plaintiffs allege that, in conjunction with the defendant's expansion of the airport and in pursuance to a resolution adopted by it, the defendant had filed in the Duval County Circuit Court a condemnation action against certain of the plaintiffs, seeking to take an easement consisting mainly of the right to enter upon the properties of the said plaintiffs for the purpose of cutting trees and removing other obstructions above a certain height over their properties for the purpose of maintaining a clear zone for the flight of aircraft--the so-called 'clearance easement'--but the said plaintiffs cannot in that action compel the city to condemn more property or any greater interest.

Finally, in the eighth and last paragraph of their said complaint, the plaintiffs allege that the operation of the said airport, as expanded by the defendant, 'constitutes a continual trespass against the properties of the plaintiffs, or a nuisance equivalent to the imposition of a servitude upon the properties of the plaintiffs. Plaintiffs are thus irreparably injured, and their only relief is in equity.'

The prayer of the plaintiffs at the conclusion of their complaint is as follows:

'WHEREFORE, Plaintiffs pray that an injunction issue against the Defendant prohibiting further continuance of the trespass or nuisance, or in the alternative that the Defendant be required to exercise its right of eminent domain as a means of making restitution to the Plaintiffs, and each of them, and that the Defendant pay to the Plaintiffs such attorney's fee as to the Court seems reasonable.'

To the foregoing second amended complaint the defendant city duly filed its motion to dismiss and motion to strike. The stated ground for its motion to dismiss is that the said complaint fails to state a cause of action against the defendant. In its motion to strike the defendant moves to strike paragraphs IV and V of the said complaint and certain parts of paragraph IV on the grounds that the said allegations are 'redundant, irrelevant, immaterial and seek to assert improper elements of damage against this defendant.' From the order of the Circuit Court denying the defendant's said motions to dismiss and to strike, the defendant has taken the instant interlocutory appeal.

While the plaintiffs' second amended complaint does not contain the expression 'inverse condemnation,' it is apparent from the allegations of the complaint, and it is clear from the statements and contentions made by the plaintiffs in their appeal brief, that ...