Swetland v. Curtiss Airports Corporation

• Decision Date: 07 July 1930
• Docket Number: No. 3023.,3023.
• Parties: SWETLAND et al. v. CURTISS AIRPORTS CORPORATION et al.
• Court: U.S. District Court — Northern District of Ohio

41 F.2d 929 (1930)

SWETLAND et al. v. CURTISS AIRPORTS CORPORATION et al.

No. 3023.

District Court, N. D. Ohio, E. D.

July 7, 1930.

Thompson, Hine & Flory, of Cleveland, Ohio, for plaintiffs.

Griswold, Green, Palmer & Hadden and Squire, Sanders & Dempsey, all of Cleveland, Ohio, and Cuthell, Hotchkiss & Mills, of New York City, for defendants.

Elmer McD. Kintz, of Washington, D. C., amicus curiæ.

HAHN, District Judge.

This is an action for an injunction because of alleged trespasses and the alleged maintenance of a nuisance by one or more of the defendants.

Plaintiffs are the owners of a tract of 135 acres located on the west side of Richmond Road in the village of Richmond Heights, Ohio. The defendant Ohio Air Terminals, Inc., a subsidiary of the defendant Curtiss-Wright Corporation, owns a tract of about 272 acres immediately opposite on the east side of Richmond Road. The westerly half of the defendants' property is located in the village of Richmond Heights, Ohio, and the easterly half is located in the village of Mayfield.

Defendants acquired their property for and intend to use it as an airport and flying school.

Plaintiffs' property constitutes the west boundary of defendants' property for 1,434 feet. It extends beyond the defendants' property on the north for 812.59 feet, while defendants' property extends beyond plaintiffs' property to the south 267.68 feet.

Plaintiffs acquired their property about twenty-five years ago. A few years after its acquisition, a substantial country residence and other buildings and conveniences were erected and constructed, so that the property may properly be described as a high-grade, self-contained country estate; the value of the buildings and other improvements, according to the testimony of R. H. Swetland, being approximately $115,000.

At the time when the property was acquired and until the construction of defendants' airport, the entire neighborhood was devoted to farming and residence purposes. There are as yet no railroads, street cars, factories, stores, gasoline stations, or other enterprises of any sort, other than defendants' airport, which create noise or attract crowds in the vicinity. The nearest business, with the exception of defendants' airport, is a gasoline station located at the corner of Richmond and Chardon Heights, about two-thirds of a mile away. The neighborhood is very sparsely settled. For a distance of three miles north and south of the airport on Richmond Road there are only twelve dwellings, some of which are occupied by tenant farmers, and others by the owners of the property; and the airport and aviation school are so located as to be a minimum annoyance and inconvenience to residents located on the east side of the city of Cleveland, while servicing that city. Most of the property is in a more or less uncultivated condition. The owners seem to be awaiting the time when the growth of the city will absorb their properties.

The main residences upon the Swetland property are located at approximately 250 and 300 feet from the center of Richmond Road and opposite the center of defendants' airport. A repair shop of the defendants will be located a quarter of a mile from the nearest Swetland residence. The warming up of the engines of the airplanes prior to taking off, as required by the regulations of the Secretary of Commerce, will take place on the completed airport at a distance of a quarter of a mile from the nearest Swetland residence.

As the crow is said to fly, the properties in question are located eleven miles east of the city of Cleveland, but the distance over improved roads from the properties to the center of the city of Cleveland is between fourteen and fifteen miles.

Defendants acquired the main tracts of the property which now constitute the airport by deeds dated May 23, 1929, recorded May 28, 1929. On May 27 plaintiff wrote defendant Curtiss Airports Corporation a letter of protest against the proposed use of the property for airport purposes. That letter was acknowledged by Curtiss Airports Corporation by letter dated May 29, 1929. This action was begun on June 1, 1929.

Immediately after acquiring the property, defendants commenced to improve the same for use as an aviation field, and, as soon as temporary runways were installed, some flying was done from this airport. About the middle of December, Curtiss Flying Service commenced the operation of a flying school on the property; not, however, upon an extensive scale. In November, 1929, defendants commenced the erection of a hangar having a capacity of approximately twenty planes. They plan to erect on the property three other similar hangars, one of which will include a service station for airplanes. They will also erect a station for the use of passenger airplanes taking off from the field, or transport planes, and a grand stand for the accommodation of spectators attending exhibitions which the defendants contemplate conducting on the property; also, a gasoline and service station for automobiles. Defendants' plans include a parking space for 460 automobiles. One of these parking spaces is designed to accommodate 250 automobiles, and is located along a strip of land immediately adjacent to Richmond Road and opposite the F. L. Swetland residence.

Without going into an analysis of the evidence, the court finds that some flying has been done by the employees of the defendants at altitudes lower than 500 feet.

The various defendant corporations are all subsidiaries of the so-called Curtiss-Wright Corporation, and the defendant Curtiss Flying Service, Inc., which has been and will be in charge of the flying at defendants' airport, is well equipped, organized, and financed to conduct flying operations from the field in a safe manner; and its disposition is to be of as little annoyance as possible to the plaintiffs. It is the disposition of the defendants to conduct the airport and flying school with the most modern equipment and appliances. Those in charge of the operation of the airport and the pilots flying therefrom have the highest qualifications. Residents on three sides of the plaintiffs' property have no objection to the operations of the defendants. On the other hand, they seem to welcome the presence of defendants' airport and flying school. Accordingly, it is possible, and the defendants have testified that it is their intention, to conduct none or only a small part of their operations over the property of the plaintiffs. The fact that defendants' property extends 267.68 feet farther south than plaintiffs' makes this in a measure possible.

From the testimony of C. H. Noyes, in charge of the Weather Bureau at Cleveland, it appears that a small percentage of the winds prevailing at the airport are due east or west; that in April and May the prevailing winds are from the northeast; and in June, July, August, September, and October, in the south.

Further facts will be stated later on in this opinion.

A determination of this case requires a decision upon the following points:

(1) Is a private airport and flying school a nuisance per se?

(2) Has the application of the maxim, "Cujus est solum ejus est usque ad cœlum," fixed or established such property rights in a landowner as to make flights over his lands a trespass or a nuisance?

(3) What is the effect of legislation, both national and state, and is it, as applied to this case, a reasonable exercise of the police power?

1. Because of the inventions and activities of the Wright Brothers, at Dayton, Ohio, Ohio regards itself as the mother state of aviation. In the report to the Joint Legislative Committee on Aviation for 1928, eight manufacturers of aircraft in Ohio reported combined capitalization of $5,504,805, employment of 1,655 persons, and production of 987 planes, valued at $4,000,803. Report of the Ohio Director of Aeronautics, 1929, p. 41. The Legislature of Ohio has made adequate provision for municipal airports by providing for the appropriation of real estate within or without the corporate limits of any Ohio municipality. Ohio General Code, § 3677; State ex rel. Chandler v. Jackson, 121 Ohio St. 186, 167 N. E. 396. And the issuance of bonds for that purpose. Ohio General Code, § 3939; State v. City of Cleveland, 26 Ohio App. 265, 160 N. E. 241. As will hereinafter appear, the Legislature of the State of Ohio, in 1929 (113 Ohio Laws, p. 28), passed a comprehensive act regulating aviation, and the Ohio Legislature is said to have passed the first mandatory act requiring every municipality in the state to be marked for aeronautical purposes. General Code, § 6310-44. It is clearly the legislative policy to encourage aviation.

In view of this declared legislative policy, we have no difficulty in arriving at the conclusion that a private airport, flying school, or landing field such as the defendants propose to operate is not a nuisance per se. It is obvious that although aviation is still to some extent in the experimental stage, it is of great utility in times of peace, and will be a great protection to the nation in times of war. In fact, it is indispensable to the safety of the nation that airports and flying schools such as contemplated by the defendants be encouraged in every reasonable respect. An airport, landing field, or flying school can be regarded as a nuisance only if located in an unsuitable location (Euclid v. Ambler Realty Co., 272 U. S. 365, 388, 47 S. Ct. 114, 71 L. Ed. 303, 54 A. L. R. 1016; 20 R. C. L. 440; 46 C. J. 666), or if operated so as to interfere unreasonably with the comfort of adjoining property owners. The airport of the defendant here is suitably located; that its location is suitable is evidenced by its surroundings, which we have already set forth, and the almost unanimous consent of adjoining property owners. There has been no protest as to its location except by the plaintiffs and, perhaps, two other persons who testified in their behalf.

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