Johnson v. Airport Authority of City of Omaha
| Decision Date | 25 May 1962 |
| Docket Number | No. 35069,35069 |
| Citation | 173 Neb. 801,115 N.W.2d 426 |
| Court | Nebraska Supreme Court |
| Parties | Kenneth M. JOHNSON and Ruth Marie Johnson, Appellees, v. AIRPORT AUTHORITY OF the CITY OF OMAHA, Appellant. |
Syllabus by the Court
1. Generally speaking an avigation easement is an easement of right to the navigation of airspace over designated land and to the use of land as an incident to air navigation.
2. Damage to land caused by navigation of airspace above established avigation easement limits furnishes no cause of action on account of such navigation.
3. Damage to land caused by navigation within an established avigation easement taken by condemnation is properly chargeable as damages to the taker of the easement.
4. The minimum topmost height of an avigation easement is the minimum safe altitude which is fixed in the Civil Air Regulations under authority of the Civil Aeronautics Board.
5. The minimum safe altitude under the prescribed regulations, for the purposes of this case, is 500 feet.
6. Under the regulations and the taking proposed, the airspace between a distance of 26 feet above the land and 500 feet above the ground constituted the avigation easement.
7. Navigable airspace means airspace above minimum altitudes of flight prescribed by the regulations, including airspace needed to insure safety in takeoff and landing of aircraft.
8. A condemner may not be held in damages beyond the limits of the taking proposed.
9. The taking of real property in the establishment of an avigation easement which reduces the value of that to which the easement attaches entitles the owner to damages in the amount of the difference in value before and after the taking.
10. The damage contemplated by the taking of an avigation easement is that which flows from activity in the easement area up to the navigable airspace.
11. Damage caused by condemnation of an incorporeal as well as a corporeal avigation easement is a taking within the meaning of the Fifth Amendment to the United States Constitution.
12. Under the Constitution of Nebraska, if an avigation easement is taken by condemnation the taker is required to compensate for the taking and the damaging.
13. The fear which may be considered as an element in fixing value is that of danger, the present or potential existence of which is grounded in authentic observation and experience, or in scientific investgiation, and which fear circumscribes activity or limits freedom of use in the area of the present or potential danger, and which tends to lessen the market value of the land.
14. Ordinarily error is waived if after a party has adduced objectionable evidence the opposing party adduces on direct or cross-examination evidence on the same subject.
15. Where the question of the amount of damages is one for the jury the determination thereon will not be disturbed on appeal if it is supported by the evidence and it bears a reasonable relationship to the elements of injury and damage.
Herbert M. Fitle, Bernard E. Vinardi, Irving B. Epstein, Frederick A. Brown, Benjamin M. Wall, Edward M. Stein, Steven J. Lustgarten, Omaha, for appellant.
Marchetti & Samson, Omaha, for appellees.
Heard before CARTER, MESSMORE, YEAGER, SPENCER, BOSLAUGH, and BROWER, JJ.
This action was originally instituted in the county court of Douglas County, Nebraska, by the Airport Authority of the City of Omaha, a municipal corporation, which will be referred to herein as appellant, to condemn airspaces over lands in the vicinity of an airport operated by the appellant and to condemn obstructions within the designated airspaces. This was done pursuant to power regularly granted to it by section 3-204, R.R.S.1943, and in accordance with the provisions of statute and of the Nebraska Constitution relating to the taking and damaging of private property for public use, the character of which was in accordance with a grant or grants flowing from rights contained in legislation of the United States enacted pursuant to the United States Constitution, and particularly the Fifth Amendment. Numerous bodies of land, each with its accompanying airspace, were designated in the proceeding; however only one is involved in the proceeding in this court. The one involved is numbered 15 and it is described as the west 50 feet of Lot 18, East Omaha Acres, lying within the southwest quarter of the southeast quarter of Section 36, Township 16 North, Range 13 East, in Douglas County, Nebraska. The area is owned by Kenneth M. Johnson and Ruth Marie Johnson, husband and wife, as joint tenants. In the proceeding here these parties are appellees.
In due course, in the county court an award was made for damages in favor of the appellees and against the appellant. From that award the appellees perfected an appeal to the district court in which they contended that the award was insufficient to compensate for the damage sustained. After issue was joined a trial was had to a jury and a verdict was returned in favor of appellees for $6,950. Judgment was rendered in this amount together with interest at the rate of 6 percent from August 4, 1959. A motion was filed by the appellant for a new trial, which was overruled. From the judgment and the order overruling the motion for new trial an appeal was perfected.
It appears proper to point out that on the appeal here the regularity of no formal procedural step from the inception of the action in the county court to the present time is attacked. For the purposes of this case specifically it must be accepted that the appellant had the right to condemn; that the proceeding throughout conformed to Nebraska constitutional and statutory rights and procedures; and also that it conformed to the United States constitutional and statutory rights and procedures. These are inevitable inferences which flow from the assignments of error, which are four in number, as follows:
'I Error of the Court in giving to the jury Instruction No. 2.
'II Error of the Court in giving to the jury Instruction No. 10.
'III Errors of law occurring during the trial with reference to the rulings of the Court, having to do with the admission or rejection of evidence.
'IV The Court erred in overruling the motion of defendant for a new trial where the verdict was manifestly excessive and clearly wrong.'
Facts of concern here about which there is no dispute are that at the eastern edge of the city of Omaha the appellant maintains and operates an airport, under authority of the statutes of the State of Nebraska and of the United States and established regulations, which is capable of handling aircraft of all modern sizes and kinds. On it are established runways for takeoffs and landings of the various kinds of aircraft. In particular it has two runways designed to handle generally northbound and southbound traffic. One is referred to as the northwest-southeast runway and the other as the north-south runway. The former is the longer and is described as an instrument runway. The latter is not an instrument runway. In practice the former has the greater use, but each may be used for the same character and quality of traffic. From a strictly determinative standpoint, in the light of the issues presented by the parties, the former is of little concern herein.
Between the south end of the north-south runway and Adams Street, which is to the south, is a distance of about 1,350 feet. The appellees are the owners of a lot immediately south of Adams Street, 50 feet east and west and 200 feet north and south, on which is located a dwelling house and a garage which is used as a workshop. From the south end of this runway southward the appellant was required to and did obtain an avigation easement. This easement extended upward and outward and over the property of the appellees. The lowest level of the easement was 26 feet. As pointed out there were two phases of taking. Under one phase was a corporeal taking of two trees which extended above the 26-foot limit, and under the other phase was an incorporeal taking above that height of the right of use and occupancy in the landing and taking off of aircraft.
As has been indicated this total right to condemn and take is not questioned in this case. It may also be said that the appellant does not contend that it is not required to respond in damages for the entire corporeal taking.
The true effect of the presentation of the appellant is that although damages may be recovered on account of the taking under an avigation easement, damage sustained by the incorporeal taking is not compensable. This is the gist of the attack made by the first assignment of error and the argument in support of it. A theory appears to be that since such an easement as this is authorized, empowered, and even commanded under the federal authority, and authorized by Nebraska statutes, damage without physical taking is not compensable.
It is true, as has been indicated, that the avigation easement was commanded properly under federal authority, but it is not true that under either the Constitution and laws of the United States or of the State of Nebraska this frees the taker of the avigation easement from liability for damage caused to the land over which the easement extends.
It is true that damage caused by navigation above or outside the established avigation easement limits is not chargeable to such navigation, but this is not true with regard to that which is within the easement. The reported cases all appear to support this as shown by the cases cited later herein.
Briefly and without attempt or effort to explore its full significance, it is stated that the term avigation applies to the navigation of airspace. In the case here the concern is with the lawful boundaries of the easement over the lands of appellees and the rights and obligations of the parties in relation thereto.
It is clear of course that land is the physical base of the easement, and the base of the...
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