Jensen v. United States

• Citation: 305 F.2d 444
• Decision Date: 18 July 1962
• Docket Number: 58-58,66-58.,53-58,No. 52-58,52-58
• Parties: S. K. JENSEN and Ethel B. Jensen v. The UNITED STATES. Opal L. JONES, Executrix of the Estate of Carrie Carlton, a/k/a Catherine Carlton; Franklin S. Carlton, Opal L. Jones; Mona Marie Eyestone; and Vann V. Jones v. The UNITED STATES. Walter R. BURDGE and Winston S. Wheeler, Co-Trustees v. The UNITED STATES. Walter R. BURDGE and Winston S. Wheeler, Co-Trustees v. The UNITED STATES. C. A. McCLAUGHRY and Edith M. McClaughry v. The UNITED STATES.
• Court: Court of Federal Claims

305 F.2d 444 (1962)

S. K. JENSEN and Ethel B. Jensen v. The UNITED STATES.

Opal L. JONES, Executrix of the Estate of Carrie Carlton, a/k/a Catherine Carlton; Franklin S. Carlton, Opal L. Jones; Mona Marie Eyestone; and Vann V. Jones v. The UNITED STATES.

Walter R. BURDGE and Winston S. Wheeler, Co-Trustees v. The UNITED STATES.

Walter R. BURDGE and Winston S. Wheeler, Co-Trustees v. The UNITED STATES.

C. A. McCLAUGHRY and Edith M. McClaughry v. The UNITED STATES.

Nos. 52-58, 53-58, 58-58, 66-58.

United States Court of Claims.

July 18, 1962.

George B. Powers, Wichita, Kan., for plaintiffs. Foulston, Siefkin, Schoeppel, Bartlett & Powers, Wichita, Kan., were on the briefs.

Herbert Pittle, Washington, D. C., with whom was Ramsey Clark, Asst. Atty. Gen., for defendant.

DAVIS, Judge.

These four related cases, tried as one, in which the plaintiffs sue for just compensation for the taking of avigation easements over their properties require us to decide (a) whether the plaintiffs' claims are barred by limitations as having accrued more than six years before the filing of the petitions, and (b) if not, what is the diminution in value attributable to the taking. The Government does not deny that a taking occurred and implicitly concedes that if the limitations defense is rejected it is proper for us to hold that there was a compensable taking within the limitations period (except for one area). The plaintiffs own six tracts immediately to the south of the two north-south runways of McConnell Air Force Base, outside of Wichita, Kansas. These properties are and have been farm lands;¹ three contain farm improvements, while the others do not.

The main facts pertinent to the time when plaintiffs' cause of action accrued are these: The Wichita Municipal Airport formerly occupied the land which became the McConnell Air Force Base. Large numbers of commercial, private, and military propeller planes were using the Airport, and beginning in 1950 it was also used for testing by the adjacent Wichita Boeing Airplane Company. Shortly after July 1950, the Air Force decided to locate a base at Wichita to train combat-ready crews to fly the B-47, a 6-engine jet bomber with a wingspan of 116 feet and a length of 109.8 feet. The Wichita Airport was selected because of its proximity to Boeing, which began in 1950 to produce the B-47 for the Air Force. Accordingly, the Airport was acquired by the Federal Government in June 1951 and the new air training base (McConnell Air Force Base) was activated at that time. Commercial planes were allowed to continue to use the facilities of the field until 1954, when all civilian traffic was terminated and transferred to the new Wichita Municipal airport which had been constructed in the meantime.² The Air Force began gradually to occupy the Base in 1951-1952, moving into the administration building in April 1952. McConnell became the world's first B-47 base and it has continued as an important center for jet bombers. The larger 8-engine B-52 jets, also produced by Boeing, began to come onto the field in the spring of 1956.

In December 1950, Boeing delivered the first B-47 to the Air Force at the then Municipal Airport. By June 1951, when the Air Force Base was opened, only 11 B-47's had been delivered; of these the Air Force retained no more than 8 at the Base. By the end of 1951 a total of 60 had been delivered, but as yet very few were assigned to McConnell. In 1952, 300 more B-47's came from Boeing but the total at the Base increased to only 17. During this time (late 1950-early 1953), the B-47's stationed at McConnell were used primarily for long-distance training flights which were isolated and infrequent events; however, there were also a substantial number of flights testing new planes as they came from the Boeing plant.³ For most of the rest of 1953, B-47 flight operations were transferred elsewhere to permit completion of a new runway at McConnell; training and testing operations continued and the training work increased in intensity in the latter part of the year. Beginning in December 1953 (after the two runways could be used), and particularly during the early months of 1954, the flights of B-47's were very frequent and they became the predominant aircraft using the runways — in December 1953 the Air Force began regularly to maintain about 90 B-47's at McConnell — particularly after April 1, 1954, when civilian use of the Base ended. The monthly average of take-offs and landings was about 20,000. By May 1958, there was an average of 700 flights cleared daily over the usual 5-day week; this was an average of a take-off or landing every two minutes on the north-south runways (which alone affected plaintiffs' property).

Over the years, these north-south runways have been developed to meet the increasing needs of the field. Prior to 1950 the single north-south runway was 8,000 feet long; in 1950 Boeing extended it (to the south) to 10,000 feet; in 1951 the Air Force lengthened it (again to the south) to 12,000 feet. In 1953 a second, parallel, north-south runway was built, also 12,000 feet in length. The B-47's use the north-south runways exclusively, except for emergencies.

Plaintiffs' lands are located (except for Wheeler tract #3) within the approach zone to the southern end of these north-south runways.⁴ In taking off (but not in landing) to the south, the planes pass over these lands. The normal heights of a B-47 taking off over the Jensen land vary from about 100 feet to as high as 500 feet, the mean altitude being about 200 feet at the north edge and 300 feet at the south edge. For the Jones property the variation is from 200 feet on the north edge to 1,000 feet on the southern line, with the mean altitude being 300 feet on the north and about 500 feet on the south. The variation for the McClaughry tract and the adjacent Wheeler tract #1 is the same, except that the mean altitudes are 400 feet on the north and 500 feet on the south. The mean altitude for Wheeler tract #2 is 500 feet on the north and 600 feet on the south. For Wheeler tract #3 the altitude on take-offs varies from 500 to above 1,000 feet, and is generally more than 700 feet. Except for this last property (Wheeler tract #3), the relatively few landings passing over plaintiffs' lands⁵ are substantially lower than on taking off.

It is clear from these facts and from the Trial Commissioner's detailed findings, which we adopt, that — putting Wheeler tract #3 to one side — the flights of B-47's from and to the McConnell base have directly and immediately interfered with the use and enjoyment of plaintiffs' properties. The intensity of the noise, as well as the frequency and low level of the flights by these big planes, are comparable to those elements in our earlier decisions involving jet aircraft;⁶ in addition, there was proof of the annoying use of floodlights (as to some of the tracts), a pall of black smoke over the area, and the rather frequent falling of dangerous objects.

The first disputed question is when did this interference become so serious that a taking occurred and a cause of action arose. The defendant claims that the taking occurred before February 1952 and therefore that these suits, filed in February 1958, are out of time. The plaintiffs, on the other hand, urge that no taking at all took place until 1953. We have concluded that there was no taking prior to the limitations period (Feb. 1952 to Feb. 1958), and therefore we are not required to decide in this case the application of the statute of limitations, or the proper measure of recovery, in the situation where a taking of an avigation easement occurs prior to six years but there is another such taking, or a grave intensification of the initial interference, within the six-year span before suit. Compare Klein v. United States, No. 157-58, decided Jan. 18, 1961, and Davis v. United States, Ct.Cl., 295 F.2d 931.

There is, unfortunately, no simple litmus test for discovering in all cases when an avigation easement is first taken by overflights. Some annoyance must be borne without compensation (United States v. Causby, 328 U.S. 256, 266, 66 S.Ct. 1062, 90 L.Ed. 1206; Allegheny Airlines v. Village of Cedarhurst, 238 F. 2d 812, 815-816 (C.A. 2)). The point when that stage is passed depends on a particularized judgment evaluating such factors as the frequency and level of the flights; the type of planes; the accompanying effects, such as noise or falling objects; the uses of the property; the effect on values; the reasonable reactions of the humans below; and the impact upon animals and vegetable life. The Government's argument that the taking in this case occurred before February 1952 (i. e., prior to six years before the filing of the petitions) fails because it overstresses some of these elements and neglects others which are critical.

The gist of the defense is that plaintiffs' properties must have been seriously affected and reduced in value during 1950-1951 (a) by the very large number of take-offs and landings in that period by aircraft of various kinds, including military planes, as well as (b) by the number of test and operational flights of B-47's, in particular, which were made in 1950-1951. The first factor — the large total of all take-offs and landings (see footnote 2, supra) — is not at all persuasive. By far the major share was by propeller planes (many of them light craft) which have been recognized as normally causing less serious interference than large jets (although in proper circumstances propeller flights, too, can result in a taking). Our cases document this general proposition.⁷ There is also an insufficient showing on this record of the proportion of these planes from the Air Base which passed over the plaintiffs' lands, the altitudes at which they flew, or the frequency of their passage. Moreover, we have the plaintiffs' flat disavowal that these earlier flights in 1950, 1951, and early 1952 caused any serious...