Smith v. New England Aircraft Co.

Decision Date04 March 1930
Citation170 N.E. 385,270 Mass. 511
PartiesSMITH et al. v. NEW ENGLAND AIRCRAFT CO., Inc., et al.
CourtUnited States State Supreme Judicial Court of Massachusetts Supreme Court


Appeal from Superior Court, Worcester County; Lummus, Judge.

Suit by Harry Worcester Smith and others against the New England Aircraft Company, Incorporated, and others. From the decree, plaintiffs appeal. Reversed, and decree of dismissal ordered.C. F. Choate, of Boston, for appellants.

Ernest H. Vaughan, Edward T. Esty, Jay Clark, Jr., and James A. Crotty, all of Worcester, for appellees.


The plaintiffs seek by this suit to enjoin the defendants from flying over their land and buildings in such manner as to constitute a trespass and nuisance and to enjoin the two corporate defendants from using a field adjacent to their land as a base from which such flights may be made. No money damages are sought. The case was referred to a master, who filed a comprehensive report. There were no objections in writing to his report. The evidence is not printed. Neither side in argument has attacked the facts found by the master. Therefore they will be accepted as true.

The facts thus disclosed so far as material to the grounds of this decision are these: The plaintiffs have for many years owned an estate of about 270 acres known as ‘Lordvale,’ located in Grafton. Upon it are a large and substantial house used as their residence, a library, two small houses, a garage and some other small structures. Considerable sums of money have been expended by the plaintiffs in improving their grounds and buildings. Except for lawn, garden, open space near their home and a mowing or two of small size, substantially the entire tract belonging to the plaintiffs is covered with dense brush and woods. It is used as a country estate and not as a farm. The district where their land lies had been, prior to the establishment of the air field, largely devoted to agriculture and residence. The distance from the plaintiffs' residence to the nearest point of the flying field is about 3,000 feet. The defendant Worcester Airport, Inc., acquired in 1927 about ninety-two acres of land in Grafton adjoining the land of the plaintiffs, and surfaced and constructed it as a flying field with runways and hangars. The expense of purchase and development of the airport exceed $100,000. The Worcester Airport, Inc., then leased the property to the New England Aircraft Company, Incorporated, a corporation organized under the laws of Connecticut, to buy, sell, repair and manufacture aeroplanes and aeroplane material and to develop commercial aeronautics. The lessee maintains the leased property as an airport; that is, as a place where aircraft take off and land, including a flying field and operations incident thereto. This airport is known as Whittall Field. It invites and receives aircraft from various places. It stores, houses and conditions such aircraft. It maintains and operates aircraft and thereby carries passengers from one point to another both within and without this Commonwealth, and also takes passengers up for short flights. It sells aircraft, sometimes making delivery by flying the planes from the factory where made, in Ohio, to its airport. The other defendants own or operate aircraft. The portion of the premises of the plaintiffs abutting on the airport is substantially forty-five feet below its surface. Their land rises to a height even above that of the airport and their residence is at about the same elevation as the airport. During the time involved in the present proceeding, the aircraft owned and operated by the defendants have been of but two types, one a biplane with a motor rated at 90 horse power, and the other a monoplane with a motor rated at 220 horse power. All the aircraft of the defendants are and have been properly licensed and flown in accordance with regulations of both State and Federal authorities. Velocity of the wind and the load carried affect the speed and climbing rate of airplanes. After reciting conducing facts the master finds that, considering all the circumstances, this site was reasonable and proper for a flying field and that it has been properly maintained and reasonably conducted as an airport.

With particular reference to alleged acts of trespass and nuisance it is found that wind direction is a most important factor and that, in view of detailed findings on this point, it is apparent that a large proportion of these flights from this airport have been and under existing conditions must continue to be made over the land of the plaintiffs in future utilization of the flying field.

‘All the defendants, with the exception of the Worcester Airport, Inc., admit flying over the plaintiffs' land. They admit flights made over the plaintiffs' house and other adjacent buildings at high altitudes. They admit flights in take-off and landing at low altitudes over that portion of the plaintiffs' premises immediately adjoining or near to the flying field, but deny such flights at low altitude over the plaintiffs' house and other buildings. The plaintiffs assert that the defendants have no right to fly their aircraft through the air space above their premises of any part thereof at any height, and especially to fly at low altitudes. How often the defendants have flown over the plaintiffs' land, and in particular over that portion within the immediate vicinity of their house and other buildings, is largely conjectural.’ Further findings of the master are that all of the defendants (except the Worcester Airport, Inc.) made numberous flights during 1928. ‘The records of the New England Aircraft Co., Inc., show that approximately four hundred (400) flights were made by its aircraft from Whittall Field during the months of May, June, and up to July 18, 1928. The other defendants, exclusive of the Worcester Airport, Inc., have made numerous flights during the same period of time. On some days no flights are made from Whittall Field, and even on days when the weather is conducive to flying the number of flights vary. Generally no flights are made from this flying field on rainy and foggy days. While it is impossible to ascertain the exact number of flights made by any of the defendants over the land of the plaintiffs I find that all of the defendants, except the Worcester Airport, Inc., have flown over the plaintiffs' land whenever the condition of wind and weather has made it necessary or convenient. Except in take-offs and landings such flights have not been at low altitudes. In the take-offs and landings the flights at low altitudes have been made over that portion of the plaintiffs' premises that do not lie within the immediate vicinity of their house and other buildings. Limited to take-offs and landings I find the several defendants who have flown from Whittall Field have made flights over the plaintiffs' premises at altitudes as low as one hundred (100) feet. The altitude attained at any given flight depends on the distance from the point of take-off to the point from which the altitude is measured as affected by wind direction and velocity, in addition to the load of the plane. Since the establishment of this airport, except in one or two instances, flights at altitudes less than five hundred (500) feet have not been made directly over the plaintiffs' land within the immediate vicinity of their house and buildings. Circumstances, however, may hereafter compel such flights, occasioned through compliance with regulations governing the navigation of aircraft or other unforeseen events over which the aviator has no control. In fact the very nature of the plaintiffs' premises, covered as they are by a thick growth of wood and brush, makes flights of aircraft thereover, except in takeoffs and landings and at high altitudes, hazardous. In May, 1928, the defendants first learned of the plaintiffs' objection to their operation and use of the flying field. Since that time the several defendants who own and operate aircraft have endeavored so far as practicable, to refrain from flying within immediate proximity to the plaintiffs' house even at high altitudes. This case contains no element of flights made by the defendants at any time over the plaintiffs' premises with an intent to annoy. The noise from planes flying over the plaintiffs' land does not materially interfere with their physical comfort. There was no evidence in this case that either the plaintiffs, their guests or any member of their household had suffered from fear or fright by reason of airplane flights over their land. There was no evidence of damage occasioned to their property, nor interference with the present use made of their land. I find the plaintiffs are persons accustomed to a rather luxurious habit of living, and while the noise from the airplanes in flight over their premises has caused them irritation and annoyance, yet gauged by the standerds of ordinary people this noise is not of sufficient frequency, duration or intensity to constitute a nuisance. There is no evidence in this case that the defendants or any of them have conducted themselves in an unlawful or unreasonable manner, unless those defendants who have flown airplanes from Whittall Field over the plaintiffs' premises in the manner which I have described herein, have, by so doing, committed acts of trespass.’

1. Apart from the circumstance that aircraft have been operated vertically above land of the plaintiffs, it is plain under our decisions that upon the findings of the master there is no sound ground for injunctive relief on the theory that the acts of the defendants constitute a nuisance. The law affords no rigid rule to be used as a test in all instances of alleged nuisance. It is elastic. It requires only that which is fair and reasonable in all the circumstances. The noise, proximity and number of the aircraft have not been such in the case at bar as to be harmful to the health or comfort of ordinary people....

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