Harry Worcester Smith v. New England Aircraft Company, Incorporated
| Decision Date | 04 March 1930 |
| Citation | 270 Mass. 511 |
| Court | United States State Supreme Judicial Court of Massachusetts Supreme Court |
| Parties | HARRY WORCESTER SMITH & another v. NEW ENGLAND AIRCRAFT COMPANY, INCORPORATED, & others. |
March 8, 11, 21 1929.
Present: RUGG, C.
J., CROSBY, PIERCE CARROLL, & FIELD, JJ.
Aircraft. Nuisance.
Trespass. Evidence Judicial notice. Equity Jurisdiction, To enjoin trespass by aircraft, Retention of suit for assessment of damages. Constitutional Law, Due process of law, Police power Interstate commerce. Equity Pleading and Practice, Costs, Master.
In considering an appeal from a final decree dismissing a bill in equity to enjoin the use of airplanes over land of the plaintiff at a height between one hundred and one thousand feet, on the ground that such use was a trespass and, continued, resulted in a nuisance, this court took judicial notice of facts of common knowledge concerning navigation of the air.
St. 1922, c.
534, and the preceding legislation in this Commonwealth on the subject of use of aircraft, as well as the "Air Commerce Act of
1926," 44 U.S. Sts. at Large, Part 2, 568, c. 344, and rules promulgated by the Secretary of Commerce under Section 10 thereof, not only recognized the existence of air navigation but authorized the flying of aircraft over privately owned land.
For the purposes of the decision of the appeal above described, this court assumed that private ownership of airspace extends to all reasonable heights above the underlying land.
The statutes of this Commonwealth regulating the operation of aircraft were enacted under the police power.
Even with the utmost reasonable assumption as to private rights in airspace of the owner of the underlying land, the provisions of St.
1922, c. 534, constitute valid regulations of the flight of aircraft in airspace actually unoccupied by the owner of the underlying land.
Review by RUGG, C.J., of decisions that certain invasions of airspace over underlying land by noise, smoke, vibration, dust and disagreeable odors, having been authorized by the legislative department of government and not being in effect a condemnation of the property although in some measure depreciating its market value, must be borne by the landowner without compensation or remedy.
Review by RUGG, C.J., of decisions upholding certain statutes as an exercise of the police power interfering with, narrowing and regulating private rights of landowners in the use of their estates.
The suit above described related to flights by airplanes over the plaintiff's land previous to June, 1928, from a privately owned airport of about ninety-two acres adjoining the plaintiff's land, a country estate, mostly wooded, of about two hundred seventy acres. A master found that the site of the airport was reasonable and proper for a flying field and that it had been properly maintained and reasonably conducted as an airport. Flights over that part of land of the plaintiff which immediately adjoined the airport had been at less than one hundred feet in taking off, but no flights had been at less than five hundred feet over any buildings on the plaintiff's land. There had been no harm to the plaintiff and no flights by excessive numbers of aircraft; the light of the sun had not been obscured and the land had not been shadowed; no airlane of through travel had been established over the land; nothing had been thrown or had fallen from the aircraft upon the underlying ground; there had been no noxious gases or fumes or undue noise; there had been no other interference with any valuable use of which the land of the plaintiff was capable. Held, that
(1) So far as concerned property of the plaintiff, the regulation, by the provisions of St. 1922, c. 534, and by Section 74 (G)(1)(2) of the regulations of the Secretary of Commerce under Section 10 of 44
U.S. Sts. at Large, Part 2, 568, of five hundred feet as the minimum altitude of flight by aircraft could not rightly be pronounced to be in excess of the permissible interference, under the police power and under regulation of interstate commerce, with rights of the plaintiff in the airspace above that height over his land;
(2) One or two instances of flights at less than five hundred but more than one hundred feet over land of the plaintiff within the immediate vicinity of houses and buildings and the possibility of similar flights in the future in the circumstances were not sufficient to require or warrant injunctive relief;
(3) The exceptions in the statutes and regulations above referred to from minimum altitude of five hundred feet for ordinary flight in favor of lower but unspecified altitude in taking off and landing were not intended as legislative limitations upon the rights of landowners in the airspace and did not sanction the flying at an altitude of less than one hundred feet over the plaintiff's land in taking off from and landing at the airport;
(4) Such low flying in taking off and landing constituted a trespass on the plaintiff's land;
(5) It appearing that such trespasses by low flying in taking off and landing were not in the same place as to linear space or altitude, that the plaintiff had sustained no damage to his property or to its use and had suffered no material discomfort, and that no valuable use was to be made of the land over which such low flying occurred either for pleasure or profit, injunctive relief properly was not granted;
(6) Whether the case should have been retained for assessment of damages rested in the sound judicial discretion of the trial judge; and an appeal from his refusal to do so, especially in view of the fact that, from facts found by the master, at most only nominal damages could have been assessed, presented no error of law;
(7) No constitutional rights of the plaintiff were infringed: there was a valid exercise of the police power of the General Court so far as concerns the Constitution of this Commonwealth and the Fourteenth
Amendment to the Federal Constitution, and a valid exercise of the power of the Congress over interstate commerce so far as concerns the
Fifth Amendment to the Federal Constitution.
Review by RUGG, C.J., of decisions that certain invasions of the airspace above the land without contact with its surface constitute trespass.
A court of equity has no jurisdiction or authority to assess, as part of costs ordered to be paid by the plaintiff to the defendant by a decree dismissing the bill, an amount which the defendant has paid as his share of the expense of having the evidence taken and written out by a stenographer at the hearing of the suit by a master who by the rule issued to him was directed to "hear the parties and their evidence, find the facts, report the evidence and report to the court his findings together with such facts and questions of law as either party may request."
BILL IN EQUITY, filed in the Superior Court on June 8, 1928, and described in the opinion.
The suit was referred to a master under a rule directing him "to hear the parties and their evidence, find the facts, report the evidence and report to the court his findings together with such facts and questions of law as either party may request." Material facts found by him are stated in the opinion. There were no exceptions to his report. By order of Lummus, J., there were entered an interlocutory decree confirming the report and a final decree dismissing the bill and directing the plaintiffs "to pay the defendants' costs amounting to $616.50 and execution is to issue therefor." The record included the following:
DEFTS' COSTS. One half of the cost of the stenographic report of evidence before Master, said half having been paid by the defendants $580 25
Witness fees before Master, the amount thereof but not the allowance thereof being agreed to by the parties ........... 36 25
All other costs waived. _______ $616 50
There was no statement of findings by the judge of the Superior Court.
The plaintiffs appealed from the final decree. C.F. Choate, for the plaintiffs.
Jay Clark, Jr., (G.H. Mason with him,) for the defendants.
The plaintiffs seek by this suit to enjoin the defendants from flying over their land and buildings in such manner as to constitute a trespass and nuisance and to enjoin the two corporate defendants from using a field adjacent to their land as a base from which such flights may be made. No money damages are sought. The case was referred to a master, who filed a comprehensive report. There were no objections in writing to his report. The evidence is not printed. Neither side in argument has attacked the facts found by the master. Therefore they will be accepted as true.
The facts thus disclosed so far as material to the grounds of this decision are these: The plaintiffs have for many years owned an estate of about two hundred seventy acres known as "Lordvale," located in Grafton. Upon it are a large and substantial house used as their residence, a library, two small houses, a garage and some other small structures. Considerable sums of money have been expended by the plaintiffs in improving their grounds and buildings. Except for lawn, garden, open space near their home and a mowing or two of small size, substantially the entire tract belonging to the plaintiffs is covered with dense brush and woods. It is used as a country estate and not as a farm. The district where their land lies had been, prior to the establishment of the air field, largely devoted to agriculture and residence. The distance from the plaintiffs' residence to the nearest point of the flying field is about three thousand feet. The defendant Worcester Airport, Inc., acquired in 1927 about ninety-two acres of land in Grafton adjoining the land of the plaintiffs, and surfaced and constructed it as a...
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