Freeman v. United States

• Decision Date: 19 November 1958
• Docket Number: Civ. No. 7930.
• Parties: O. T. FREEMAN and Lucille Freeman, Plaintiffs, v. UNITED STATES of America, Defendant.
• Court: U.S. District Court — Western District of Oklahoma

167 F. Supp. 541

O. T. FREEMAN and Lucille Freeman, Plaintiffs, v. UNITED STATES of America, Defendant.

Civ. No. 7930.

United States District Court, W. D. Oklahoma, Civil Division.

November 19, 1958.

Curtis P. Harris, Charles R. Nesbitt, Oklahoma City, Okl., for plaintiffs.

Paul W. Cress, U. S. Atty., George Camp, Asst. U. S. Atty., Oklahoma City, Okl., for defendant.

RIZLEY, District Judge.

This is an action against the United States founded upon the Fifth Amendment to the United States Constitution of which this court has jurisdiction under Title 28 U.S.C.A. § 1346. It is an action for the difference in the fair market value of plaintiffs' land before and after the alleged taking by the Government of two easements in reverse condemnation; one, a flowage easement of surface drainage waters, the other, an aviation easement for air flights over and above the land. Plaintiffs have waived all compensation in excess of $10,000 in order to come within the Tucker Act.

Judgment for defendant.

Findings of Fact

This case having been heard by the Court upon the evidence, the Court makes the following specific findings of fact:—

1. Plaintiffs, O. T. Freeman and Lucille Freeman, his wife, are residents of the State of Oklahoma and are owners of the following described real property located in the Western District of Oklahoma:—

E½ SE¼ of Sec. 15, Township 2 North Range 20 West of the Indian Meridian, Jackson County, Okla., consisting of 80 acres more or less.

This property lies adjacent to the Altus Air Force Base—an installation of the U. S. Air Force—in a position south of the south end of the north-south runway, with the northeast corner of the property at a point one-fourth mile due west of the south end of the runway. Plaintiffs' house lies approximately ¾th miles distance from the runway in the southwest corner of the property.

2. The Altus Air Force Base is located three miles northeast of the City of Altus in Jackson County, Oklahoma. It has been in operation off and on since 1942. On March 21, 1955, the first jet aircraft was put into operation at this base. The plaintiffs owned and lived on their land prior to this time. While originally there were four short runways, these no longer exist and the primary instrument is one runway running north and south, 300 feet by 13,440 feet with overruns of 1,000 feet at either end. When landing from the north, it is runway No. 17, and when, from the south, it is runway No. 35, but both are on the same physical instrument.

3. Air traffic is controlled by G.C.A. traffic patterns, and during the last five years, at least, only the patterns directing traffic to the east of the airfield before landing and after takeoff have been used. This has been done to avoid flying over the City of Altus which lies to the southwest. The minimum safe glide angle for aircraft taking off and landing is 2.5 deg. and there is no difference in glide angle for different type aircraft. The direction and altitude of a normal flight after takeoff is a continuation of 170 degrees or 350 degrees bearing— depending on whether going north or south—for a distance of at least 8 miles before a turn. The altitude at that position is above 3,000 feet. For transition flying (practice landings and takeoffs) the aircraft remains on these headings for approximately three miles' distance from the base boundary, then turns east and has an altitude of 1,500 feet at that position. The proof is therefore that the glide path for a plane on takeoff or landing from the south end of the runway does not go over plaintiffs' land. All aircraft flown in the G.C.A. pattern are controlled so as to make a good track over the ground of all headings and to be under positive radar control at all times. Since this is a military base, control is strict and any deviation that would take a plane over plaintiffs' land would be gross error on the part of the pilot thereof. No such deviations were ever reported to or noted by the officers in charge of the Air Force base, and they therefore were without knowledge of any such action if it did occur.

4. The Court concludes from all the proof that there may have been an occasional trespass over plaintiffs' property, but that they were not frequent or low flights of a recurring nature.

5. The natural drainage area into plaintiffs' land prior to the construction of the air base consisted of an area 97 acres in size lying immediately north of the property. After the construction of the base, and at the present time, the drainage area is 37 acres flowing towards plaintiffs' land. In addition to the diminution in the size of the drainage area, the Corps of Engineers at the time the base was built also constructed a concrete drainage ditch north of plaintiffs' property and parallel to their property line to carry the surface waters east to the northeast corner of their property, there to join another and larger bar ditch running parallel to the section road south to the creek that bisects plaintiffs' land. The north ditch and culvert were constructed to carry an estimated amount of water that might flow and this was computed on a 10-year frequency, or the largest amount of water which might foreseeably have to be carried at any one given time.

6. A portion of plaintiffs' land adjacent to the airfield was partially flooded in May, 1956 as the proof indicated. The proof also shows that in May, 1956 there occurred an unusual amount of rainfall for the month, but more specifically and damaging there occurred a 4-inch rain in a 30-minute period on the first of May that year. The same occurred again on the 18th of May, 1957. A 4-inch rain would be the equivalent of a 100-yr. frequency. These indicate an exceptionally heavy amount of rainfall during those periods of time, and amounts to almost what might be termed unprecedented rainfalls.

7. The natural drainage for the acreage north or above plaintiffs' land before the base was constructed was across ...