Hoyle v. City of Charlotte

• Decision Date: 01 February 1970
• Docket Number: No. 18,18
• Parties: G. D. HOYLE v. CITY OF CHARLOTTE, a Municipal Corporation.
• Court: North Carolina Supreme Court

Page 1

172 S.E.2d 1

276 N.C. 292

G. D. HOYLE v. CITY OF CHARLOTTE, a Municipal Corporation.

No. 18.

Supreme Court of North Carolina.

Feb. 1, 1970.

Carswell & Justice, by James F. Justice and C. J. Leonard, Jr., Charlotte, for plaintiff appellee.

Ervin, Horack & McCartha, by Paul R. Ervin and William E. Underwood, Jr., Charlotte, for defendant appellant.

BOBBITT, Chief Justice.

'In keeping with the expansion and development of air navigation and commerce, but recognizing the dominant right of the surface owner to fully use and enjoy his land, the courts, generally, in adjudicating the relative property rights in the airspace, have found it necessary to modify the ancient maxim of real property, 'he who owns the soil owns it to the heavens.' The general rule now deducible from the authorities is that the justiciable right to the exclusive possession of land extends upward only to that point necessary for the full use and enjoyment of the land and the incidents of its ownership, the balance being regarded as open and navigable airspace. Stated affirmatively, a landowner has a dominant right of occupancy for purposes incident to his use and enjoyment of the surface, superior to any claimed rights of aerial navigators which conflict therewith.' 8 Am.Jur.2d, Aviation § 3.

Pursuant to authority conferred by Congress, 49 U.S.C.A. § 1341 and § 1348, the administrator of the Federal Aviation Agency has prescribed regulations which, in pertinent part, provide: 'Except when necessary for takeoff or landing, no person may operate an aircraft below the following altitudes: (a) * * * (b) * * * (c) Over other than congested areas. An altitude of 500 feet above the surface, except over open water or sparsely populated areas. In that case, the aircraft may not be operated closer than 500 feet to any person, vessel, vehicle, or structure. (d) * * *' The Code of Federal Regulations, Title 14--Aeronautics and Space--Part 60 to 199 (Revised as of January 1, 1969) § 91.79. In a non-congested area, airspace to an altitude of 500 feet or more is deemed within the public domain. Under the federal statutes and regulations, the airspace over plaintiff's property to an altitude of 500 feet is not a part of the public domain. United States v. Causby, 328 U.S. 256, 66 S.Ct. 1062, 90 L.Ed. 1206 (1946).

We consider now the facts pertinent to defendant's contention that its ownership of the airport should not subject it to liability to plaintiff.

The Federal Aviation Agency, 49 U.S.C.A. § 1101 et seq., has, and exercises, full responsibility for the actual operations that cause planes to land and take off at the Airport. The runways to be used and the manner of approach and departure are determined and prescribed by employees of the Federal Government. Development of the Airport, including the extension of the northeast-southwest runway, was in conformity with plans approved by the Federal Aviation Agency. Overflights of which plaintiff complains were and are made in accordance with regulations prescribed by the Federal Aviation Agency.

Upon the cancellation on May 13, 1946, of the lease of the Airport to the United States Government for use as Morris Field Airbase, defendant entered into certain contractual obligations with the United States with reference to defendant's operation of the Airport. To qualify for assistance in making improvements at the Airport in conformity with the National Airport Plan, defendant was required to make 'Sponsor's Assurances' which provide, Inter alia, (1) that the Airport 'shall be used for public airport purposes on reasonable terms and without unjust discrimination,' and (2) that the United States, as specifically provided, 'shall at all times have the right to use the airport in common with others.' Commercial airlines, under the terms of their leases from defendant, are granted the right to use the Airport for enumerated specific purposes, including 'landing' and 'taking off' of their aircraft.

Defendant pays all costs of maintaining the Airport. Its income consists of landing fees, gasoline and oil sales, hangar and terminal facility rentals, income from concessions, maintenance services, etc.

In Griggs v. Allegheny County, 369 U.S. 84, 82 S.Ct. 531, 7 L.Ed.2d 585, 82 S.Ct. 531 (1962), reh. den., 369 U.S. 857, 82 S.Ct. 931, 8 L.Ed.2d 16 (1962), the Greater Pittsburgh Airport, owned and operated by Allegheny County, was involved. The opinion of Mr. Justice Douglas states: 'The airport was designed for public use in conformity with the rules and regulations of the Civil Aeronautics Administration within the scope of the National Airport Plan provided for in 49 U.S.C. § 1101 et seq.' Again: 'The airlines that use the airport are lessees of respondent; and the leases give them, among other things, the right 'to land' and 'take off.' No flights were in violation of the regulations of C.A.A.; nor were any flights lower than necessary for a safe landing or take-off. The planes taking off from the northeast runway observed regular flight patterns ranging from 30 feet to 300 feet over petitioner's residence; and on let-down they were within 53 feet to 153 feet.' It was held, in accordance with United States v. Causby, supra, that there had been A taking of an easement By Allegheny County for which Griggs was entitled to compensation. The basis of the dissent of Mr. Justice Black, with whom Mr. Justice Frankfurter concurred, is that the United States of America rather than Allegheny County should pay for an easement necessary for the landing and taking off of aircraft in accordance with federal statutory provisions and rules and regulations of federal agencies.

In Griggs, Mr. Justice Douglas summarizes pertinent portions of the National Airport Plan provided for in 49 U.S.C.A. § 1101 et seq., as follows:

'By this Act the federal Administrator is authorized and directed to prepare and continually revise a 'national plan for the development of public airports.' § 1102(a). For this purpose he is authorized to make grants to 'sponsors' for airport development. §§ 1103, 1104. Provision is made for apportionment of grants for this purpose among the States. § 1105. The applications for projects must follow the standards prescribed by the Administrator. § 1108.

'It is provided in § 1108(d) that: 'No project shall be approved by the Administrator with respect to any airport unless a public agency holds good title, satisfactory to the Administrator, to the landing area of such airport or the site therefor, or gives assurance satisfactory to the Administrator that such title will be acquired.' The United States agrees to share from 50% To 75% Of the 'allowable project costs,' depending, so far as material here, on the class and location of the airport. § 1109.

'Allowable costs payable by the Federal Government include 'costs of acquiring land or interests therein or easements through or other interests in air space * * *.' § 1112(a)(2).'

Our statutes, codified as G.S. Chapter 63, entitled 'Aeronautics,' contemplate full cooperation and compliance with federal statutes and rules and regulations of appropriate federal agencies.

In our view, when defendant, by lease or otherwise, grants the right to use the Airport, this grant includes the right to use the approach areas necessary to land and take off in the manner prescribed by the Federal Aviation Agency. Hence, if overflights in taking off and landing In accordance with the rules and regulations of the Federal Aviation Agency constitute a direct and immediate interference with the enjoyment and use of plaintiff's property to such extent as to impair substantially the fair market value thereof, such overflights would constitute a 'taking' By defendant of an air easement as appurtenant to the operation of its Airport.

This is An action to recover compensation for the alleged 'inverse condemnation' of a flight easement. In this jurisdiction, where private property is taken for a Public purpose by a municipality or other agency Having the power of eminent domain under circumstances such that no procedure provided by statute affords an applicable or adequate remedy, the owner, in the exercise of his constitutional rights, may maintain An action to obtain just compensation therefor. Charlotte v. Spratt, 263 N.C. 656, 663, 140 S.E.2d 341, 346, and cases cited. 'Inverse condemnation is a device which forces a governmental body to exercise its power of condemnation, even though it may have no desire to do so.' Bohannon, Airport Easements, 54 Va.L.R. 355, 373 (1968).

Defendant, by the exercise of the power of eminent domain conferred by G.S. § 63--5, could have condemned an easement of flight over all of the property of plaintiff for all type aircraft at minimum altitudes of 79, 80 or 90 feet above the surface of the ground and higher. Notwithstanding defendant failed to initiate condemnation proceedings to acquire such easement of flight, plaintiff asserts defendant actually appropriated such easement of flight and by reason thereof is required to pay just compensation for the impairment of the reasonable market value of his property on account thereof.

At the conclusion of plaintiff's evidence and again at the conclusion of all the evidence, defendant moved for nonsuit on the ground 'there is insufficient evidence to take the case to the jury.' Defendant excepted to, and now assigns as error, the denial of these motions.

The evidence, when considered in the light most favorable to plaintiff, was sufficient to permit a jury to find that, beginning in January or February, 1962, and continuously thereafter, the recurring noises, vibrations, air pollution, air currents, etc., from frequent overflights by commercial jets at altitudes ranging from 80 feet above the ground upward to and including 500 feet above the ground substantially and adversely affected the reasonable market value of plaintiff's property. If so, under Griggs v. Allegheny County, supra,...