Martin v. Port of Seattle

Decision Date23 April 1964
Docket NumberNo. 36996,36996
Citation64 Wn.2d 309,391 P.2d 540
CourtWashington Supreme Court
PartiesGlenn A. MARTIN and Claresta L. Martin, his wife, et al., Respondents, v. The PORT OF SEATTLE, a municipal corporation, Appellant. Vern AARHUS et al., Respondents, v. The PORT OF SEATTLE, a municipal corporation, Appellant.

Bogle, Bogle & Gates, Robert W. Graham, Thomas L. Morrow, Richard L. Young, Seattle, for appellant.

Riddell, Williams, Voorhees, Ivie & Bullitt, R. H. Riddell, S. E. DeForest, Seattle, for Martin, et al.

Short, Cressman & Cable, Paul R. Cressman, Wm. L. Hintze, Seattle, for Aarhus, et al.

Lyman M. Tondel, Jr., Cleary, Gottlieb, Steen & Hamilton, New York City, John E. Stephen, Gen. Counsel, Air Transport Ass'n of America, Washington, D. C., amici curiae.

FINLEY, Judge.

This is an 'inverse condemnation' 1 action brought by 196 property owners against the Port of Seattle, a municipal corporation, as owner of the Seattle-Tacoma International Airport. The respondent property owners seek damages for an alleged taking or damaging of their property for public use caused by nearby low altitude flights of jet aircraft landing and taking off from the airport. The sole question on this appeal is whether the property owners have stated a claim for relief due to such jet aircraft flights. The question of actual individual monetary damage is by stipulation reserved for later separate trial.

The property in question is located directly south of the primary north-south runway of the Seattle-Tacoma Airport, in a rectangular area roughly one mile long and one-half mile wide, bounded by South 200th Street on the north, South 216th Street on the south, 16th Avenue South on the west, and 24th Avenue South on the east. The litigated area of approximately one-half square mile has been somewhat arbitrarily defined for the purposes of suit in such a manner that it is bisected by an imaginary flight line extended south along the direction of the runway. The northernmost edge of the litigated area is approximately 9/10ths of a mile from the end of the runway, and jet aircraft in the process of landing pass over this imaginary centerline of the area at altitudes of less than 500 feet.

The plaintiff contend, in general, that the use of appellant's airport by jet aircraft 2 has unreasonably interfered with the use and enjoyment of their properties and caused substantial depreciation in the value of those properties. While the parties have been segregated for the purpose of suit in such a manner as stresses the presence or absence of an actual physical invasion of airspace, 3 the contentions of the plaintiffs make it clear that the gravamen of the complaint is the noise and vibration created by the aircraft rather than physical invasion, 4 making it apparent that any differentiation on this basis would be of little practical significance.

The plaintiffs make extensive claims of interference and damage flowing from the flights in close proximity to their land, some summary of which should be made here to indicate the extent of the growing societal problem of which the present action may be only a harbinger. The plaintiffs claim that, when jet aircraft pass over or in close proximity, conversation is halted, radio and television reception is disrupted, and the sound obliterated. The jets cause vibrations in the houses and of their contents, rendering it necessary to hammer the nails back into the siding of some of the homes at about six-month intervals, and to tighten light fixtures periodically. Sleep is disrupted, outdoor entertainment almost impossible, and the noise painful to many. The noise also causes fear, particularly in small children. It is asserted that the respondents cannot sell their homes, and that the property values are substantially reduced.

The trial court held that the plaintiffs had stated a claim for relief. The theory which forms the basis of this holding may be set out as follows. The property owners were conceptually divided into two groups, one group comprising those having land which was subjected to direct overflights by the jet aircraft, the second, those as to which no overflights were shown. Respecting the first group, the trial court held that the overflights amounted to a taking of an air easement without just compensation in violation of Art. I, § 16, Amendment 9, of the Washington Constitution and Amendment XIV of the United States Constitution. As to the second group, the trial court held that the regular low flights near by amounted to a damaging of the properties without payment of just compensation in violation of Art. I, § 16, Amendment 9, of the Washington Constitution. According to stipulation, judgment was entered only as to potential liability, leaving the matter of damages to proof on an individual plot-by-plot basis in subsequent proceedings.

We are substantially in agreement with the trial court. However, this court will not in this case stress any of the proposed distinctions between the 'taking' and the 'damaging' of a property right respecting the use and enjoyment of the land. As the Washington Constitution affords or provides a basis for compensation in either instance, subtle efforts at legal refinement to characterize and describe a particular interference can be expected to be more difficult and treacherous than convincing or utilitarian.

There seems little doubt that the noise of jet aircraft in the process of landing or taking off can amount to a taking or damaging of property for which Amendment 9 of the Washington Constitution requires that compensation be made. The term 'property,' as used in that provision, was defined in Ackerman v. Port of Seattle (1960), 55 Wash.2d 400, 348 P.2d 664, 77 A.L.R.2d 1344, to include the unrestricted right to use, enjoy, and dispose of the land. It was there held that the frequent flights over the land of the plaintiffs amounted to a taking for which compensation in terms of the decline in market value of the land was requird. The defendant in Ackerman was the same entity here involved.

An identical result follows in the instant case from the clear direction of the Constitution that just compensation be made for the taking or damaging of 'property,' as defined in Ackerman. The only remaining obstacle to the plaintiffs' recovery under this approach is the problem of proving measurable detriment to the market value of their land under the traditional rules of proof. Whether the 'cause of action' for the recovery of compensation is viewed as resulting from the due process provisions of the Constitution, or as resulting from an adaptation of older ideas of eminent domain and the condemnation of private property for public use, is of little significance. When the noise and intense vibration produced by low-flying jet aircraft deprives the owner of land of an essential element in his relationship to that land, the result should be the same whether the airport operator himself brings the action to 'condemn' the right to so interfere with the land, or the landowner is forced to be the moving party. It should be noted that the Federal Government has developed the practice of affirmatively moving to condemn so-called 'air easements' in connection with the operation of their air bases. See United States v. 15,909 Acres, 176 F.Supp. 447 (S.D.Cal. 1958). It also appears that the right of a property owner to proceed against the federal government on a theory that the noise of jet aircraft have 'taken' his right to use and enjoyment of land is well established, recognized, and accepted. Aaron v. United States, 311 F.2d 798 (Ct.Cl. 1963); Batten v. United States, 306 F.2d 580 (10th Cir. 1962); Jensen v. United States, 305 F.2d 444 (Ct.Cl. 1962); Davis v. United States, 295 F.2d 931 (Ct.Cl. 1961); Bacon v. United States, 295 F.2d 936 (Ct.Cl. 1961). Some state courts recognize that the noise of jet aircraft, and its interference with the use of land not included in a condemnation begun by the state, are additional elements of compensable damage includable in the payments required for the land or airspace actually physically taken in the action. Bowling Green-Warren County Airport Board v. Long (Ky. 1962), 364 S.W.2d 167; Johnson v. Airport Authority of the City of Omaha (1962), 173 Neb. 801, 115 N.W.2d 426.

The appellants resist the conclusions that would seem to flow from the above reasoning with a series of arguments which may be roughly grouped within three broad contentions: (1) That the Congress of the United States has placed all navigable airspace within the public domain, with the result that no use of such airspace by the public can result in liability; (2) that there can be no 'taking or damaging' in the constitutional sense in the absence of a direct overflight of the plaintiff's land; and (3) that recovery based upon an alleged interference with the exercise or enjoyment of property rights must be limited to those instances where a substantial interference is shown, as opposed to a mere 'incidental' damaging. These contentions will be considered in the above sequence.

The Congress has placed certain airspace in the public domain. Consequently, aircraft are permitted to sue such airspace subject only to federal regulation of their routes and operating procedures. In the Federal Aviation Act of 1958, the 'navigable airspace' of the United States was expressly extended to include any and all airspace 'needed to insure safety in take-off and landing of aircraft.' 5 It is the position of the appellant that such legislation creates such an unrestricted right of use as to prevent any action for trespass or for nuisance, or based on any other theory that would place a burden upon interstate commerce. 6 This approach, however, overlooks the fact that recovery for the landowner is supported upon reasoning akin to eminent domain, and the taking of private property or rights for the public benefit, and not upon any...

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