Ferguson v. City of Keene

Decision Date30 January 1968
Docket NumberNo. 5543,5543
Citation238 A.2d 1,108 N.H. 409
PartiesDoris W. FERGUSON v. CITY OF KEENE.
CourtNew Hampshire Supreme Court

Howard B. Lane, Keene (by brief and orally), for plaintiff.

Eric J. Kromphold, Jr., City Sol.(by brief and orally), for defendant.

DUNCAN, Justice.

The defendant's airport, known as the Dillant-Hopkins airport, was established in 1942.In 1947, the plaintiff purchased certain real estate, including her residence, located southerly of the north-south runway of the airport.In 1956 the city took a part of the westerly portion of plaintiff's land in order to lengthen the runway, which in 1959 and 1962 was extended a distance of a thousand feet, so that its southerly end is now located a few hundred feet west of the plaintiff's house.

The writ alleges that the use of a 'warmup apron' located opposite the plaintiff's house resulted in 1963 and 1964 in such noise and vibration as to cause windows in the house to break, and to make conversation or sleep in the house impossible and life therein generally 'unbearable.'The writ alleges that this use of the airport 'constitutes a taking and appropriation' of the plaintiff's property for which the defendant has refused to compensate her.

It is the settled law of this jurisdiction that a municipality, like any property owner, is bound to use its property in a reasonable manner, and is liable if its use results in a private nuisance.O'Brien v. Derry, 73 N.H. 198, 204, 60 A. 843;Proulx v Keene, 102 N.H. 427, 430-431, 158 A.2d 455;Webb v. Town of Rye, 108 N.H. 147, 150, 230 A.2d 223.The defendant contends however that no taking of the plaintiff's property can properly be alleged, since she admits that the flight path of aircraft does not cross it, and damage alone without an actual taking requires no compensation.United States v. Willow River Power Co., 324 U.S. 499, 510, 65 S.Ct. 761, 89 L.Ed. 1101.The defendant further argues that its use of the airport is 'proper,' and that subjection of airports to liability for claims such as this would unduly impede the progress of air transportation in the state.

The plaintiff asserts that the allegations of its writ include all of the classic elements of nuisance (Restatement, Torts, s. 822;seeMcKinney v. Riley, 105 N.H. 249, 251, 197 A.2d 218) and also that the defendant's conduct of the airport gives rise to a cause of action for 'inverse condemnation,' even though no overflights occur.Thornburg v. Port of Portland, 233 Or. 178, 376 P.2d 100;Martin v. Port of Seattle, 64 Wash.2d 309, 391 P.2d 540.SeeCity of Charlotte v. Spratt, 263 N.C. 656, 140 S.E.2d 341;City of Jacksonville v. Schumann(Fla.), 167 So.2d 95;State ex rel. Royal v. City of Columbus, 3 Ohio St.2d 154, 209 N.E.2d 405.

Inverse condemnation is a term used to describe 'a cause of action against a governmental defendant to recover the value of property which has been taken in fact by the governmental defendant, even though no formal exercise of the power of eminent domain has been attempted by the taking agency.'City of Jacksonville v. Schumann, supra, 167 So.2d 98;City of Charlotte v. Spratt, 263 N.C. 656, supra, 663, 140 S.E.2d 341.SeeHillsborough County Aviation Auth. v. Benitez(Fla.App.), 200 So.2d 194.While in this jurisdiction the doctrine may not have been adverted to under that name, it is not unknown to our jurisprudence.Eaton v. B.C & M.R.R., 51 N.H. 504, 510-516.SeeVan Alstyne, Statutory Modification of Inverse Condemnation, 19 StanfordL.Rev. 727, 738-768;Mandelker, Inverse Condemnation, The Constitutional Limits of Public Responsibility, 1966 Wis.L.Rev. 3, 18-19.

Pertinet cases decided by the United States Supreme Court have not gone beyond the point of holding that there may be recovery in inverse condemnation for damages occasioned by direct flights of aircraft over a claimant's property.United States v. Causby, 328 U.S. 256, 66 S.Ct. 1062, 90 L.Ed. 1206;Griggs v. Allegheny County, 369 U.S. 84, 82 S.Ct. 531, 7 L.Ed.2d 585.As was pointed out in Dunham, Griggs v. Allegheny County in Perspective: Thirty Years of Supreme Court Expropriation Law, 1962Supreme Court Review 63: 'The question whether those (claimants) adjacent to airports, but not in any flight path, should be compensated thus remains an open one so far as the Supreme Court decisions are concerned.But the logic of Causby and its idea of fairness would seem to require compensation even where planes do not fly directly over the objector's land.'Id., 88.

However, in Batten v. United States, 306 F.2d 580(10th Cir.1962)the Court of Appeals declined to extend the doctrine to a case where overflights did not occur, relying upon United States v. Willow River Power Co., 324 U.S. 499, 65 S.Ct. 761, 89 L.Ed. 1101, supra, and the proposition that the Federal Constitution requires compensation for a 'taking' only.This decision the United States Supreme Court declined to review on certiorati.Batten v. United States, 371 U.S. 955, 83 S.Ct. 506, 9 L.Ed.2d 502.

The courts of at least two states proceeding under their own constitutions, have permitted recovery in cases where overflights were not involved.Thornburg v. Port of Portland, 233 Or. 178, 376 P.2d 100, supra;Martin v. Port of Seattle, 64 Wash.2d 309, 391 P.2d 540, supra.See also, Thornburg v. Port of Portland, 244 Or. 69, 415 P.2d 750;2 Nichols on Eminent Domain(3d ed.) s. 5.781; Annot. 77 A.L.R.2d 1355.They do not agree however upon the standards to be applied in determining when a taking has occurred, and the cases have been critically received by some commentators.SeeSpater, Noise and the Law, 63 Mich.L.Rev. 1373, 1404-1406(1965).Moreover the Constitution of the State of Washington requires compensation for a 'damaging' of property as well as a 'taking,' in this respect differing from both the Constitution of the United States and that of New Hampshire.See, N.H. Const., Pt. I, Art. 12.

'Since there is hardly a government act which could not cause someone substantial damage, an arbitrary boundary line must be drawn between compensable and non-compensable injury.'Spater, supra, 1385-1386.Under the Federal Constitution, the line has been drawn at compensation for a taking of property.'The Fifth Amendment * * * requires just compensation where private property is taken for public use * * * (but) does not undertake * * * to socialize all losses * * *.'United States v. Willow River Power Co., 324 U.S. 499, supra, 502, 65 S.Ct. 761, 764, 89 L.Ed. 1101.SeeBatten v. United States, 306 F.2d 580, supra.Thus compensation is limited to recovery for 'direct and immediate interference with enjoyment and use' by frequent low-level overflights.United States v. Causby, 328 U.S. 256, 66 S.Ct. 1062, 90 L.Ed. 1206, supra.See, Avery v. United States, 330 F.2d 640, 165 Ct.Cl. 357, 1964;A. J. Hodges Industries, Inc., 355 F.2d 592, 174 Ct.Cl. 259, 1966.See also, Note, Airplane Noise, 65 Col.L.Rev. 1428, 1431, 1432.

A genuine distinction may reasonably be thought to exist between the nature of the injury suffered by the owner whose land is subjected to direct overflight, and that suffered by his neighbor whose land is not beneath the flight path.Only the former has lost the use of the airspace above his land, and he is subjected to risks of physical damage and injury not shared by the latter.Specter, supra, 1394-1395.

While our Constitution may not preclude application of the doctrine of inverse condemnation to cases not involving overflights (SeeEaton v. B.C. & M.R.R., 51 N.H. 504, supra), the 'difficult questions which have arisen from attempts to define the requisite elements of the taking bear witness to the unsuitability of dealing with the problem of airplane noise by enforcing constitutionally-based claims.'Note, 65 Col.L.Rev. 1428, supra, 1447.In holding that where no property is appropriated there may be no recovery for consequential damage due to noise, smoke, and vibrations incident to proximity to a railroad, in Richards v. Washington Terminal Co., 233 U.S. 546, 555, 34 S.Ct. 654, 657, 58 L.Ed. 1088, the Court said: 'The doctrine has become so well established that it amounts to a rule of property, and should be modified, if at all, only by the law-making power.'

To what extent the nuisance of which the plaintiff complains is essential to the public use of the defendant's airport is a question which is not determinable at this stage of this litigation.The question whether a defendant in circumstances such as these should be compelled by inverse condemnation to acquire an 'easement' and compensate the plaintiff therefor (SeeCausby v. United States, 75 F.Supp. 262, 109 Ct.Cl. 768, 1948) presents issues of social policy which might well be the subject of legislative study and appropriate enactment.SeeVan Alstyne, Statutory Modification of Inverse Condemnation, 19 Stanford L.Rev. 727supra, 738(1967).

For purposes of this case, we hold that the plaintiff's writ and declaration fail to state a cause of action in inverse condemnation for want of any claim of overflights, but that a cause of action in nuisance is sufficiently alleged.

Exception overruled; remanded.

GRIMES, J., dissented; the others concurred.

GRIMES, Justice (dissenting).

The plaintiff's writ alleges that 'the noise from the planes 'warming up' for take off, make such a great amount of noise that it is impossible for the people in the house to converse or talk on the telephone, the house vibrates and the glass in the windows shake and that more than 20 panes of glass have been broken by said vibration in the winter of 1963-1964, that it is often times impossible to sleep and there is no peace or quiet in their home and that life has become unbearable because of said noise.'

The majority of the court says this declaration does not set forth a cause of action based on inverse condemnation.I disagree.

Our court long ago decided that in our state at least,...

Get this document and AI-powered insights with a free trial of vLex and Vincent AI

Get Started for Free

Start Your 3-day Free Trial of vLex and Vincent AI, Your Precision-Engineered Legal Assistant

  • Access comprehensive legal content with no limitations across vLex's unparalleled global legal database

  • Build stronger arguments with verified citations and CERT citator that tracks case history and precedential strength

  • Transform your legal research from hours to minutes with Vincent AI's intelligent search and analysis capabilities

  • Elevate your practice by focusing your expertise where it matters most while Vincent handles the heavy lifting

vLex

Start Your 3-day Free Trial of vLex and Vincent AI, Your Precision-Engineered Legal Assistant

  • Access comprehensive legal content with no limitations across vLex's unparalleled global legal database

  • Build stronger arguments with verified citations and CERT citator that tracks case history and precedential strength

  • Transform your legal research from hours to minutes with Vincent AI's intelligent search and analysis capabilities

  • Elevate your practice by focusing your expertise where it matters most while Vincent handles the heavy lifting

vLex

Start Your 3-day Free Trial of vLex and Vincent AI, Your Precision-Engineered Legal Assistant

  • Access comprehensive legal content with no limitations across vLex's unparalleled global legal database

  • Build stronger arguments with verified citations and CERT citator that tracks case history and precedential strength

  • Transform your legal research from hours to minutes with Vincent AI's intelligent search and analysis capabilities

  • Elevate your practice by focusing your expertise where it matters most while Vincent handles the heavy lifting

vLex

Start Your 3-day Free Trial of vLex and Vincent AI, Your Precision-Engineered Legal Assistant

  • Access comprehensive legal content with no limitations across vLex's unparalleled global legal database

  • Build stronger arguments with verified citations and CERT citator that tracks case history and precedential strength

  • Transform your legal research from hours to minutes with Vincent AI's intelligent search and analysis capabilities

  • Elevate your practice by focusing your expertise where it matters most while Vincent handles the heavy lifting

vLex

Start Your 3-day Free Trial of vLex and Vincent AI, Your Precision-Engineered Legal Assistant

  • Access comprehensive legal content with no limitations across vLex's unparalleled global legal database

  • Build stronger arguments with verified citations and CERT citator that tracks case history and precedential strength

  • Transform your legal research from hours to minutes with Vincent AI's intelligent search and analysis capabilities

  • Elevate your practice by focusing your expertise where it matters most while Vincent handles the heavy lifting

vLex

Start Your 3-day Free Trial of vLex and Vincent AI, Your Precision-Engineered Legal Assistant

  • Access comprehensive legal content with no limitations across vLex's unparalleled global legal database

  • Build stronger arguments with verified citations and CERT citator that tracks case history and precedential strength

  • Transform your legal research from hours to minutes with Vincent AI's intelligent search and analysis capabilities

  • Elevate your practice by focusing your expertise where it matters most while Vincent handles the heavy lifting

vLex
16 cases
  • City of Oakland v. Nutter
    • United States
    • California Court of Appeals
    • 1 Diciembre 1970
    ...379 U.S. 989, 85 S.Ct. 701, 13 L.Ed.2d 610), and Thornburg v. Port of Portland (1962) 233 Or. 178, 376 P.2d 100, with Ferguson v. Keene (1968) 108 N.H. 409, 238 A.2d 1; Louisville and Jefferson County Air Bd. v. Porter (1965) 397 S.W.2d 146; and Batten v. United States (10 Cir. 1962) 306 F.......
  • Sibson v. State
    • United States
    • New Hampshire Supreme Court
    • 31 Marzo 1975
    ...manner but not for taking it without compensation.' Eaton v. B.C. & M.R.R., 51 N.H. 504, 518 (1872); Ferguson v. Keene, 108 N.H. 409, 415, 238 A.2d 1, 5 (1968) (dissenting opinion). Because I fear this decision destroys private ownership in all undeveloped property in this State, I can conc......
  • Sundell v. Town of New London
    • United States
    • New Hampshire Supreme Court
    • 12 Diciembre 1979
    ...occurs when a governmental body takes property in fact but does not formally exercise the power of eminent domain. Ferguson v. Keene, 108 N.H. 409, 238 A.2d 1 (1968). It gives rise to a cause of action for compensation. The principle of inverse condemnation was developed in this State over ......
  • Palazzolo v. State, C.A. No. WM 88-0297 (RI 7/5/2005)
    • United States
    • Rhode Island Supreme Court
    • 5 Julio 2005
    ...E & J, Inc. v. Redevelopment Agency of Woonsocket, 122 R.I. 288, 290 n.1, 405 A.2d 1187, 1189 n.1 (1979) (citing Ferguson v. Keene, 108 N.H. 409, 410, 238 A.2d 1, 2 (1968)). "The inverse-condemnation cause of action provides landowners with a means of seeking redress for governmental intrus......
  • Get Started for Free