Smithdeal v. American Air Lines, No. 3090.

• Court: United States District Courts. 5th Circuit. United States District Courts. 5th Circuit. Northern District of Texas
• Writing for the Court: H. P. Kucera, City Atty., of Dallas, Tex., for City of Dallas, intervenor
• Citation: 80 F. Supp. 233
• Parties: SMITHDEAL v. AMERICAN AIR LINES, Inc.
• Docket Number: No. 3090.
• Decision Date: 13 October 1948

80 F. Supp. 233

SMITHDEAL
v.
AMERICAN AIR LINES, Inc.

No. 3090.

United States District Court N. D. Texas, Dallas Division.

October 13, 1948.

C. M. Smithdeal, of Dallas, Tex., in pro. per.

Raymond Buck, of Fort Worth, Tex., for American Air Lines, Inc.

H. P. Kucera, City Atty., of Dallas, Tex., for City of Dallas, intervenor.

Wm. P. Fonville, Asst. U. S. Atty., of Dallas, amicus curiae for the United States.

Emory T. Nunneley, Jr., John H. Wanner, Oliver Carter, and Robt. Burstein, all of Washington, D. C., for Civil Aeronautics Board.

ATWELL, Chief Judge.

The suit must be dismissed, not because of want of jurisdiction, as urged by the defendant, nor because of laches, nor because of the balancing of equities, but because the plaintiff's proof does not preponderate.

First.

The plea to the jurisdiction is overruled because there is nothing in the Aviation Act, either state or national, which requires the citizen to first seek any specified administrative remedy, before appealing to the courts.

80 F. Supp. 234

Second.

Laches, following closely legal limitation, is avoided in this action because it is laid in 1947 and 1948.

Third.

The balancing of equities is sought on the ground of the investment of approximately $10,000,000 in Love Field by the City of Dallas, the government of the United States, and the Air Lines.

It is urged that the humble residence of a citizen and his inconvenience, or, sensitiveness to noise, should be subordinate to that superior investment. The law may be epitimized by simply saying that the citizen's residence is "his castle and even the king may not enter without his permission." That eminent domain may be asserted, is no answer, because a constitutional amendment gives the citizen adequate compensation for that which is taken.

There are a great many authorities that have been presented by each interested party and which shed little, if any, pertinent light upon the question involved here. These authorities are assembled for the convenience of the student a little later on.

This is not a complaint for trespass. It is for an alleged nuisance. The plaintiff claims the right to enjoy immunity from such flights of airplanes as his sensitive ear and his pride of home and ownership dislike. He claims they frighten him. That they interfere with his hearing over the radio. That they interrupt conversation between himself, visitors and his family. He claims that they rattle the leaves on the trees that surround his home; that upon one occasion they rattled the dishes in his cupboard. He claims that upon a few occasions the defendant's planes flew three hundred to five hundred feet over his lot which is approximately 80 by 200 feet. That frequently they fly...