Delta Air Corp. v. Kersey

• Decision Date: 23 April 1942
• Docket Number: 14023,14024.
• Citation: 20 S.E.2d 245,193 Ga. 862
• Parties: DELTA AIR CORPORATION et al. v. KERSEY et al. KERSEY v. CITY OF ATLANTA.
• Court: Georgia Supreme Court

20 S.E.2d 245

193 Ga. 862

DELTA AIR CORPORATION et al. v. KERSEY et al.

KERSEY v. CITY OF ATLANTA.

Nos. 14023, 14024.

Supreme Court of Georgia

April 23, 1942

Rehearing Denied May 20, 1942.

Syllabus by the Court.

1. Where a city constructs and operates an airport under statutory authority, the airport will not be adjudged a nuisance if it is constructed and operated in a proper manner. Such noises and dust as are created by the necessary and proper operation of a properly located airport will not be declared to constitute nuisances, although they result in injury and inconvenience to adjoining landowners.

2. Aerial navigation over the land of another owner at such a height as not to interfere with the then existing reasonable use thereof by the owner constitutes neither a trespass nor a nuisance. However, repeated flights over the land of another owner at such a low height as to be dangerous to the health and life of the owner amount to a nuisance; and this is true though such low flights are necessary in order to use an adjoining airport.

3. While the Code, § 11-202, declares the construction and operation of an airport by a city to be a governmental function, a city is not thereby authorized so to construct an airport that it constitutes a nuisance dangerous to the health and life of adjoining landowners. Under the allegations of the instant petition, the airport operated by the City of Atlanta constituted a nuisance, in that it was so constructed that it could not be used without requiring such low flights over the petitioner's property as to be imminently dangerous to his life and health and that of his family.

4. The allegations of the petition were sufficient to show that the city and the defendant aviation companies were jointly and severally liable for maintaining the airport as a nuisance.

JENKINS J., dissenting.

On March 3, 1936, A. C. Kersey filed suit against the City of Atlanta, the Delta Air Corporation, Air Service, Inc., and fourteen other aviation companies, seeking to enjoin the defendants from operating Candler Field, an airport, as a nuisance, and to recover $10,000 damages alleged to have been suffered by reason of the operation and use of the airport. The action was dismissed as to all of the aviation companies except those specifically named above, because of lack of proper service. The petition alleged, that the plaintiff bought a described tract of land in Fulton County in 1921, and built a five-room house thereon in 1923 the value of the house and lot being approximately $3,000; that the plaintiff and his wife and child moved into the house and have since made it their home; that from time to time the plaintiff bought furniture for use in the home, of the value of $600; that in 1927 the City of Atlanta acquired the property adjoining the land of petitioner on the east, southeast, and south, and constructed thereon an airport known as Candler Field; that petitioner's property was a quiet, peaceful and proper location for a home before the airport was built, but dust, noises, and low flying of airplanes caused by the operation of the airport have rendered his property unsuitable as a home; and that by reason of the operation of the airport in the manner alleged his real estate had depreciated $2,500 in value, the household goods had been damaged $500 and he had been forced to expend stated sums in extra cleaning, medicines, medical treatment, etc. The following allegations were made with reference to the noises complained of: 'The landing and taking off of aeroplanes at said airport, and their flying over and near plaintiff's said property, is a nuisance to plaintiff and his family, in that a great noise is constantly created and maintained by the mechanical devices which operate and cause said air-crafts to navigate. * * * Said air-crafts create great noises which are constantly maintained by the mechanical devices which cause their operation, and said noises do not cease day nor night, Sundays, holidays nor any other days, and are frequent and grow increasingly frequent. Said noises disturb the peace of petitioner and his family, their happiness, and the right to peacefully enjoy their said home. They are harassing, disturbing, constantly loud and unpleasantly grating upon the sense of hearing. They disturb the sleep, rest, quietude, and sense of peace and security of petitioner and his family, and is a constant nuisance, and is injurious to petitioner and his said family. In the operation of said airport, a testing block or other apparatus is in use, whereon motors are placed and tested for the purpose of determining whether or not said motors are in condition to make flights. On said testing blocks motors are put in motion and maintained at a rapid speed. Said motors, thus operating create and maintain a great volume of noise, and same is so loud, harsh, and intense that the atmosphere of the immediate community, and more especially in and about petitioner's premises, is filled with said noises, which disturb petitioner and his family, and is a constant nuisance. The operation of said motors on the testing blocks is more frequent at night, when petitioner and his family are trying to sleep and rest, and it seriously disturbs them, and often wakes them from their sleep, and is disturbing to their sleep to such an extent that it is detrimental to their health, and is a nuisance.'

With reference to dust it was alleged, that a vast number of airplanes and other vehicles arrive at and depart from the airport daily; that a large part of the airport consists of what is known as a landing field, 'which is a large graded field of raw earth, being an unnatural surface built of earth from high elevations, which has been transported to other portions of the field for the purpose of making a large and plane surface for the convenience and safety of airships arriving at and departing from said airport'; that the airplanes, when arriving at or taking off from the field, kick up and plow up, due to the tremendous current created by the operation of their propellers, much raw earth and dust from the unnatural formation of the field, which rises into the air and is blown by natural air currents and the currents caused by the aircraft themselves onto adjacent property, and particularly onto petitioner's property; that the dust so created, disturbed, and distributed permeates the air and makes it unpleasant, filthy, and unhealthy for the use of petitioner and his family, and is injurious to the health of petitioner and his family, in that it is injurious to their lungs, to their eyes, and to their health in general; and that the dust in great quantities enters plaintiff's home and premises and settles on the furniture, furnishings, and clothing, causing them to be dirty and to deteriorate and requiring the expenditure of stated extra sums for cleaning purposes.

With reference to low flying of airplanes over his property, the petitioner alleged: There have been frequent occasions of low flying by pilots who, under permit and license of the City of Atlanta, arrive and depart at the airport, the names of the pilots being unknown to petitioner. The other defendants often operate their airplanes so low over petitioner's property as to constitute a menace and trespass, in violation of petitioner's right to use his property in a peaceful manner, and such low flying has been so frequent as to constitute a continuing nuisance to petitioner and his family, occurring many times per day and night. In constructing and maintaining the airport the City of Atlanta constructed a runway from the southeast toward the northwest for airplanes to use in taking off and landing. This runway heads directly toward petitioner's residence, and the northwest end of it is within about 300 feet of the house. This is one of the most frequently used runways at the airport, and is used many times each day and night, except at such times as the weather is unfavorable for its use. The low flying complained of consists of the flying of airplanes over plaintiff's residence at a height of from 25 to 50 feet. Very seldom do airplanes attain an altitude of more than 50 feet above his premises when taking off or landing. 'Because of the construction and maintenance of said airport by said city so near plaintiff's said premises, and especially to said runway from the southeast to the northwest as heretofore referred to, airplanes taking off from and arriving at said airport cannot and do not attain or maintain a sufficient altitude to fly over plaintiff's premises without creating a nuisance in so doing, and without trespassing thereon. The altitude of such planes passing over plaintiff's said premises is usually from 25 to 50 feet above said premises, and said airport is so constructed and maintained by the City of Atlanta that such altitude is incident and necessary to the operation of airplanes by pilots taking off from and landing at said airport.' Because of the low altitude at which planes are forced to fly over plaintiff's premises in landing and taking off at the airport, the air currents created by the propellers of the airplanes blow great gusts of air into plaintiff's dwelling house through its doors, windows, and other openings, which air currents often contain great quantities of dust, and such currents are often blown with such force that they upset household furnishings. When thus passing over his premises the airplanes make horrible noises as though they were about to crash through 'plaintiff's premises,' causing plaintiff and his family to become and remain exceedingly nervous, agitated, apprehensive and irritated, and to lose much sleep at night, seriously impairing their health. The construction and maintenance of the airport by...