Henthorn v. Oklahoma City
| Decision Date | 29 April 1969 |
| Docket Number | No. 41793,41793 |
| Parties | J. A. HENTHORN and Vera Henthorn, husband and wife, Plaintiffs in Error, v. OKLAHOMA CITY, a municipal corporation, Defendant in Error. |
| Court | Oklahoma Supreme Court |
Syllabus by the Court
1. There can be a taking of private property by flights over or in close proximity to land when such flights are continuous, frequent and low enough to constitute a substantial interference with the use and enjoyment of the property.
2. Ordinarily, the question of whether a continuing interference is substantial enough to constitute a 'taking' under Section 24, Art. 2, Constitution, is one for the jury.
Appeal from the District Court of Oklahoma County; William L. Fogg, Judge.
Action by property owners in inverse condemnation for damages against municipality owner of airport for a 'taking' of an air easement. From a verdict and judgment for defendant and overruling of motion for new trial plaintiffs' appeal. Judgment affirmed.
Charles Hill Johns, Midwest City, James W. Bill Berry, Berry & Berry, Oklahoma City, William B. Shultz, Chickasha, for plaintiffs in error.
Roy H. Semtner, Municipal Counselor, James R. Fuson, Asst. Municipal Counselor, for defendant in error.
Question: Is it error to submit for determination of the jury the question of whether there has been a 'taking' of an avigation or air easement by the defendant City of Oklahoma City where the uncontroverted evidence established daily, frequent, and continuous jet aircraft flights at an altitude of less than 500 feet over and across plaintiffs' land in the glide path of take off and landing at Will Rogers Municipal Airport? We hold it is not.
Plaintiffs are the owners of a 160 acre tract of land located between 1 1/2 and 2 miles north of the north boundary of Will Rogers World Airport owned by the defendant City. They purchased the property in 1943 and resided thereon until August 1960. Plaintiffs allege in their petition that in April 1961 jet aircraft began using the facilities of Will Rogers Airport and from that time made daily, frequent, regular and continuous flights over their property at altitudes of under 500 feet; that such flights at low altitude in landing and taking off destroyed the use of their property for residential purposes and damaged them in the amount of $560,000.00. Commissioners were appointed and returned an appraisal of no damage. Plaintiffs demanded a jury trial which was granted. The jury returned a verdict in favor of the city defendant and plaintiffs appeal.
Upon the trial of the issues plaintiffs offered evidence that jet aircraft daily, frequently and continuously passed over their property at low altitudes making loud noises, interfering with conversations and the use and enjoyment of the property generally. Real estate and land appraisers testified that the property was best suited to residential purposes and since the advent of the flights the property had decreased in value $440,000.00. An expert witness also testified as to the noise level of aircraft that passed over the property.
The defendant city offered evidence substantiating in part the jet overflights of plaintiffs' land at altitudes of from 345 feet to 602 feet approximately, with an average of seven flights a day under 500 feet. Defendant's expert witness testified that the noise level or 'noys' rating was not such as to interfere with the use of the property. They further offered evidence that the value of the property, which was best suited to light industry or industrial purposes, had increased since the beginning of the jet flights from $303,000.00 to $486,000.00 or some $183,000.00.
The uncontroverted evidence in summary indicated daily, frequent, continuous jet overflights of plaintiffs' property at altitudes less than 500 feet. The controverted issues were whether there was an interference with the use and enjoyment of the property due to the noise the jets made in landing and taking off from Will Rogers Airport, and the amount of damages suffered as a result thereof.
This is a case of first impression in this jurisdiction, although this problem has been considered in recent years by other jurisdictions. Without attmepting an exhaustive study of decisions from other jurisdictions it will suffice to state briefly some of the cases that bear upon this question.
The landmark case is United States v. Causby, 328 U.S. 256, 66 S.Ct. 1062, 90 L.Ed. 1206 (1946), establishing the principle of a taking of an air easement. There the Federal Government leased an airport and was responsible for military aircraft flying directly over plaintiff's property at tree top level many times a day in landing and taking off from the airport. Even though there was not a taking by the usually accepted means the court said that the operation of military aircraft and others at an altitude of 67 feet above his house, disturbing his sleep, causing vibrations, loud noises and other interferences is a physical invasion of the land owner's property and amounts to a taking of an air easement that is compensable. In Griggs v. Allegheny County, Pa., 369 U.S. 84, 82 S.Ct. 531, 7 L.Ed.2d 585 (1962), under a fact situation similar in the location of the plaintiff's property and the law continuous overflights to the Causby case, the court extended liability to owners of airports for the taking of an air easement under the same theory of trespass as the Causby case.
In both Causby and Griggs cases the court discussed the navigable airspace which Congress has placed in the public domain. In Griggs it is set out that Congress has declared 'navigable airspace' to mean airspace above the minimum altitude of flight prescribed by regulations issued under the statute and shall include airspace needed to insure safety in take off and landing of aircraft, 72 Stat. 739, 49 U.S.C. Section 1301(24). FAA regulations define minimum safe altitudes other than take off and landing, at 1000 thousand feet over congested areas and 500 feet over other than congested areas. 14 C.F.R. Section 60.17. Whence comes the 500 foot rule advanced in many cases. Generally the 500 foot rule states that the airspace over an...
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Vaughn v. City of Muskogee, 111,065.
...P.2d 676 (party failing to file a timely demand for jury trial may not rely on demand filed by opposing party).6 Cf., Henthorn v. Oklahoma City, 1969 OK 76, 453 P.2d 1013 (judgment for city affirmed where jury did not find that interference from airport operations was substantial enough to ......
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