Maitland v. Twin City Aviation Corp.

• Decision Date: 12 April 1949
• Citation: 37 N.W.2d 74,254 Wis. 541
• Parties: MAITLAND et al. v. TWIN CITY AVIATION CORPORATION.
• Court: Wisconsin Supreme Court

254 Wis. 541

37 N.W.2d 74

MAITLAND et al.

v.TWIN CITY AVIATION CORPORATION.

Supreme Court of Wisconsin.

April 12, 1949.

Appeal from a judgment of the County Court of Chippewa County; Orrin H. Larrabee, Judge.

Action by Joseph W. Maitland and another, as joint tenants and as partners doing business as Maitland Fur Farm, against Twin City Aviation Corporation for damages for loss of mink due to the defendant's flying over the plaintiffs' farm at unlawful heights during the whelping season. From a judgment for plaintiffs for $3,195.85 damages, together with $127.62 costs and disbursements, amounting in all to the sum of $3,323.47, the defendant appeals.-[By Editorial Staff.]

Judgment affirmed.This is an appeal from a judgment, entered May 17, 1948, awarding plaintiffs $3,195.85 damages, together with $127.62 costs and disbursements, amounting in all to the sum of $3,323.47, for loss of mink; and enjoining defendant from flying at less than five hundred feet altitude over the plaintiffs' five acre mink ranch during the period from April 25 to June 25 each year. The action was commenced on October 2, 1947, and was tried before the court, a jury trial not having been requested by either party, on April 7 to 12, 1948.

The defendant corporation owns and operates the Twin City Airport, an eighty acre commercial airport, in the town of Hallie, just south of the city of Chippewa Falls, in Chippewa county. Plaintiffs acquired eighty acres in the same township in 1945, and established a mink ranch in a five acre grove of trees on the northwest corner of their land about a mile from the airport. Plaintiff Joseph W. Maitland started in the mink business in 1940, and knew the airport was located nearby when he purchased the property in Chippewa county. Plaintiffs' operation represented an investment of $62,000 in 1947.

Plaintiffs rented out approximately sixty acres of their land, but restricted the use so as not to interfere with their mink raising. The only part of their land in question here is the five acre tract which is not in a direct line with any runway of defendant's airport.

Female mink have their kits once a year. The period from the time they start having their kits until the kits are old enough to be taken from their mothers is called the whelping season and extends from April 25 to June 25. During this period extreme caution must be exercised in caring for the female mink. If they are frightened, they may destroy their kits. They may try to hide, bury, kill, or eat them. A female that has killed and eaten its young develops a cannibalistic trait and is of no value as a breeder. It takes two years of cross breeding to develop a platinum, which produces the silver blue pelt, the most valuable of the mink pelts.

On several occasions during the whelping season in 1946, during the remainder of that year, and in April, 1947, several planes flew low over the ranch, and their low flight was called to defendant's attention.

On May 12, 1947, in the late afternoon, light planes were taking off and landing from defendant's airport. Plaintiff testified that their altitudes were one hundred to one hundred fifty feet directly over the five acre tract, and the noise of the planes was so loud that the plaintiffs, who were in the enclosure trying to soothe the mink, were unable to talk to each other except in a shout. They saw the female mink in a state of extreme fright and witnessed the destruction of kits before their eyes.

The planes were all owned by the defendant who produced as witnesses all who flew planes at or near the time complained of. The pilots testified that they had not flown below five hunderd feet.

Other material facts will be stated in the opinion.

Stafford & Stafford, of Chippewa Falls, for appellant.

Marshall A. Wiley, of Chippewa Falls, for respondents.

MARTIN, Justice.

The first contention of defendant is that the flight of defendant's planes over plaintiffs' mink ranch on May 12, 1947, causing damages, was not an actionable wrong, and that there is not sufficient evidence to warrant the finding that the aircraft flew at a low altitude.

Section 114.03, Stats., provides as follows: ‘Landowner's rights skyward. The ownership of the space above the lands and waters of this state is declared to be vested in the several owners of the surface beneath, subject to the right of flight described in section 114.04.’

Section 114.04, Stats., provides as follows: ‘Flying lawful, landing unlawful; limitations; emergency. Flight in aircraft over the lands * * * of this state is lawful, unless at such a low altitude as to interfere with the then existing use to which the land * * * or the space over the land * * * is put by the owner, or unless so conducted as to be imminently dangerous or damaging to persons or property lawfully on the land * * * beneath. * * *’

The Civil Aeronautics Authority (hereafter referred to as CAA) regulates the traffic rules, and the course of taking off and landing from any airport is called the traffic or flight pattern. The traffic pattern is that all planes taking off must go into the wind. On May 12, 1947, the wind was from the east and, therefore, all planes went east off from the east-west runway located on the south side of the airport. The aircraft goes east until it reaches an altitude of four hundred feet. This altitude is determined by an altimeter which is a gauge in the aircraft. At four hundred feet the aircraft is nearly directly south of plaintiffs' mink ranch. The CAA rules then require the plane to make a ninety degree turn to the left or north and climb to six hundred feet. The six hundred foot altitude would be reached just over and slightly east of the plaintiffs' mink ranch. Upon reaching this altitude, the plane is supposed to make a forty-five degree turn to the right out of the flight pattern, and is then free to go in any direction. The takeoff into the wind and climb to four hundred feet and the ninety degree turn to the left and climb to six hundred feet is prescribed by the federal traffic rules for all airports in the United States.

Defendant cannot claim the protection of any CAA regulation for the acts complained of constitute violations of these regulations.

The property rights in the airspace do not mean that the landowner must occupy the airspace physically. United States v. Causby, 1946, 328 U.S. 256, 264, 66 S.Ct. 1062, 90 L.Ed. 1206.

The height below which the surface owner may reasonably expect to occupy the airspace for himself is to be determined upon the particular facts of each case. Swetland v. Curtiss Airports Corp., D.C.1930, 41 F.2d 929; Id., 6 Cir., 55 F.2d 201, 83 A.L.R. 319;Hinman v. Pacific Air Transport Corp., 9 Cir., 1936, 84 F.2d 755, certiorari denied 1937, 300 U.S. 655, 57 S.Ct. 431, 81 L.Ed. 865.

It is undisputed in the evidence in this case that the property of the plaintiffs was not only endangered and damaged, but a considerable portion thereof was destroyed by the operation of the planes owned by the defendant. No other cause for the killing of the plaintiffs' mink kits was attempted to be given. Joseph Maitland testified he personally saw the mother mink kill the kits while defendant's planes were flying low over his ranch, and when these mother mink were terrified by the flight. The expert mink breeders testified that a low flying plane would cause the trouble here encountered. The defendant's pilots knew of the danger from low flying over mink farms, for they maintained a map at the flying field showing the location of each such farm with relation to the airport. Additionally, they cautioned the pilots about the danger to the young mink. The flying was, therefore, illegal since it did not conform to the safety standards of either the state or federal law.

Sec. 60.105 of the civil air regulations provides:

‘Minimum safe altitudes. Except when necessary for taking off and landing, aircraft shall be flown:

‘(a) when over the congested areas of cities, towns, settlements, or open-air assemblies of persons, at altitudes sufficient to permit emergency landings outside such areas and in no case less than 1,000 feet above such areas, and

‘(b) when elsewhere than as specified in paragraph (a),...