Jasper v. Sawyer, 11317.

• Decision Date: 19 February 1953
• Docket Number: No. 11317.,11317.
• Citation: 205 F.2d 700,92 US App. DC 94
• Court: U.S. Court of Appeals — District of Columbia Circuit
• Parties: JASPER v. SAWYER et al.

92 US App. DC 94, 205 F.2d 700 (1953)

JASPER v. SAWYER et al.

No. 11317.

United States Court of Appeals District of Columbia Circuit.

Argued November 7, 1952.

Decided February 19, 1953.

Petition for Rehearing Denied August 18, 1953.

Charles F. O'Neall, Washington, D. C., for appellant.

Fred W. Smith, Atty., Department of Justice, Washington, D. C., with whom Roger P. Marquis, Atty., Department of Justice, Washington, D. C., was on the brief, for appellees.

Before CLARK, WILBUR K. MILLER, and PROCTOR, Circuit Judges.

Petition for Rehearing in Banc Denied August 18, 1953.

WILBUR K. MILLER, Circuit Judge.

An Act of Congress, approved September 7, 1950.¹ authorized and directed the Secretary of Commerce to construct and operate a public airport in or near the District of Columbia and to acquire, by purchase, lease, condemnation or otherwise, a suitable site, including avigation easements or air-space rights. It also provided

"* * * That the choice of site by the Secretary shall be made only after consultation with the governing body in the county in which the airport is to be located, with respect to the suitability of the site to be selected, and its possible impact on the vicinity."

Pursuant to this statutory directive, the Secretary of Commerce selected as a site for the airport a body of land in Fairfax County, Virginia, containing approximately 4,520 acres, and a petition to take the fee simple title thereto for the United States was filed June 13, 1951, in the United States District Court for the Eastern District of Virginia.

Jones D. Jasper is the owner of a farm containing approximately 100 acres in Fairfax County, which lies in the general vicinity of the airport site selected by the Secretary but is not included therein. He instituted this action August 23, 1951,² in the United States District Court for the District of Columbia against Charles Sawyer, then Secretary of Commerce, and J. Howard McGrath, then Attorney General, to enjoin and restrain them from further prosecuting the case in the Eastern District of Virginia; to restrain them from filing any declaration of taking in connection therewith; to restrain Sawyer from requesting McGrath or any other person to file any suit to condemn any land in Virginia within 12,500 feet of Jasper's property for the purpose of constructing and operating thereon the proposed airport; and to restrain and enjoin Sawyer from constructing, maintaining and operating a civil airport within 12,500 feet of his property.

Jasper alleged his farm is located about 3,100 feet from one end of a proposed airport runway, that part of his property will lie in the direct path of planes using the runway, and that such planes will fly below the navigable air-space above his property. This, he charged, would constitute either a continuing trespass on or an actual taking of his land; and that permitting the condemnation case to proceed would depreciate the value of his property to his irreparable injury. He pleaded that arriving and departing aircraft and other activities of the airport

"* * * will result in loud, startling and distracting noises and glaring lights at night, so that plaintiff\'s dwelling and that inhabited by his servants will become and continue unfit for residential use. * * * that the raising of chickens, livestock, and/or similar activities on the balance of plaintiff\'s property * * * will be seriously restricted and impaired and that the possible use of such of plaintiff\'s property as does not lie within the area of the path of flight will be so restricted and impaired that its use for any purpose whatsoever * * * would be

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