Swetland v. Curtiss Airports Corporation

• Decision Date: 08 January 1932
• Docket Number: 5813.,No. 5812,5812
• Citation: 55 F.2d 201
• Parties: SWETLAND et al. v. CURTISS AIRPORTS CORPORATION et al.
• Court: U.S. Court of Appeals — Sixth Circuit

55 F.2d 201 (1932)

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

Nos. 5812, 5813.

Circuit Court of Appeals, Sixth Circuit.

January 8, 1932.

C. P. Hine, of Cleveland, Ohio (Thompson, Hine & Flory, of Cleveland, Ohio, on the brief), for appellants, Swetland.

H. G. Hotchkiss, of New York City, and H. J. Crawford, of Cleveland, Ohio (Cuthell, Hotchkiss & Mills, of New York City, and Squire, Sanders & Dempsey and Griswold, Green, Palmer & Hadden, all of Cleveland, Ohio, on the brief), for cross-appellants, Curtiss Airports, etc.

H. Stewart McDonald, Jr., of New York City, amicus curiæ for Aeronautical Chamber of Commerce of America.

Mabel Walker Willebrandt, of Washington, D. C., amicus curiæ for the Aviation Corporation.

Before DENISON, MOORMAN, and HICKENLOOPER, Circuit Judges.

MOORMAN, Circuit Judge.

F. L. and R. H. Swetland own a tract of 135 acres of land located on the west side of Richmond road in the village of Richmond Heights, Ohio, on which they had constructed before 1929 residences and improvements at a cost approximating $115,000. Shortly before or on May 28, 1929, the Curtiss Airports Corporation and its allied companies purchased for $398,048 a tract of 272 acres of land on the east side of Richmond road immediately opposite the Swetland land. Upon learning of the purchase of the property by the air companies, and being informed of their intention to construct and operate an airport thereon, the Swetlands notified the Curtiss Corporation May 28 that such use of the property would destroy their property for residential purposes. Notwithstanding this notice, the air companies proceeded with their plans to establish the airport, and, being advised of that fact, the Swetlands, on June 1, 1929, brought this action to enjoin them from using the property for such purpose. Upon the hearing of the case the District Court enjoined the defendants from permitting dust from the operation of the airport to fly or drift in substantial and annoying quantities over the plaintiffs' property, from dropping or distributing circulars from aeroplanes while passing over it, and from flying or permitting aeroplanes under their control to fly over it at an altitude of less than 500 feet. The court refused to enjoin the use of the property as an airport, or as a place for the training of student aviators and the giving of exhibitions of aviation, or for the parking of automobiles, and further refused to enjoin flights over the plaintiffs' property at a height above 500 feet. Plaintiffs appeal from so much of the decree as refused to grant the full relief for which they prayed, and defendants appeal from that part of it which enjoins the operation of their planes over the property below an altitude of 500 feet.

Plaintiffs contend that the full relief prayed for in their bill should have been granted, first, because the operation of the airport and aviation field, though properly conducted, so materially interferes with the enjoyment of their property as to constitute an abatable nuisance; and, second, that the flying of aeroplanes at any distance above their property is a trespass which in the nature of the operation of the air field must constantly recur, and which a court of equity should accordingly enjoin. Both contentions are denied by defendants, which affirmatively assert as to the second that plaintiffs do not own the air space above their property and have no right to prevent its use at will for flying purposes short of the creation of a nuisance.

We first consider the contention that the flying of an aeroplane through the air spaces over plaintiffs' lands is a trespass which, when recurring as a necessary incident to the operation of the air field, must be enjoined. The proposition is affirmed by appellants upon the maxim, Cujus est solum ejus est usque ad coelum. We are told that this maxim was imported into the English law by Lord Coke (liber 1, § 1, p. 4), and that it has been approved in Baten's Case (1611) 9 Coke's Reports 54(b); Fay v. Prentice (1845) 1 C. B. 827; Corbett v. Hill (1874) 9 L. R. Eq. 671; and Ellis v. Loftus (1874) L. R. 10, C. P. 10. The popularity of the phrase with the courts of this country is attested by its repetition in the law reports of practically every state. Its relation to aviation has been the subject of much discussion in the legal literature of the past ten years.¹ We do not discuss these numerous articles nor the authorities referred to in argument, many of which are cited in the opinion of the trial court. 41 F.(2d) 929. It is said that the early cases which embedded the maxim into the body of the law were decided upon the theory of nuisance and not trespass. We cannot admit that basis of decision. But none of those cases nor any of the later ones undertakes to define the term "ad coelum," if indeed that term is one of constancy or could be defined. In every case in which it is to be found it was used in connection with occurrences common to the era, such as overhanging branches or eaves. These decisions are relied upon to define the rights of the new and rapidly growing business of aviation. This cannot be done consistently with the traditional policy of the courts to adapt the law to the economic and social needs of the times. The Ohio decisions² are likewise inconclusive, and, lacking any controlling precedent, we resort to a consideration of the plaintiffs' rights in relation to the necessities of the period. From that point of view we cannot hold that in every case it is a trespass against the owner of the soil to fly an aeroplane through the air space overlying the surface. This does not mean that the owner of the surface has no right at all in the air space above his land. He has a dominant right of occupancy for purposes incident to his use and enjoyment of the surface, and there may be such a continuous and permanent use of the lower stratum which he may reasonably expect to use or occupy himself as to impose a servitude upon his use and enjoyment of the surface. See Portsmouth Co. v. United States, 260 U. S. 327, 43 S. Ct. 135, 67 L. Ed. 287. As to the upper stratum which he may not reasonably expect to occupy, he has no right, it seems to us, except to prevent the use of it by others to the extent of an unreasonable interference with his complete enjoyment of the surface. His remedy for this latter use, we think, is an action for nuisance and not trespass. We cannot fix a definite and unvarying height below which the surface owner may reasonably expect to occupy the air space for himself. That height is to be determined upon the particular facts of each case. It is sufficient for this case that the flying of the defendants over the plaintiff's property was not within the zone of such expected use. We think the question is unaffected by the regulation promulgated by the Department of Commerce, under the Air Commerce Act of 1926 (49 USCA § 171 et seq.), and adopted by the state of Ohio, requiring aeronauts to fly in rural sections at a height not less than 500 feet above the surface, for in our view that regulation does not determine the rights of the surface owner, either as to trespass or nuisance.

The air field was not fully developed at the time of the trial, but as partially developed it had been operated for a sufficient length of time to show its effect, when completed as planned, upon the plaintiff's property. It is the purpose of the defendants to equip the field with all the facilities necessary and incident to a first-class airport, at which there will be conducted complete flying operations, including an aviation school. It is to be equipped with facilities for accommodating and servicing aeroplanes, and with beacon and boundary lights to enable aviators to take off and to land at night. There are to be runways, an "all way field" on which landings and take-offs may be made in any direction, four hangars, and a service station for automobiles, with a parking place for 250 automobiles along the west side of the Richmond road. The distance from this road to the nearest point of the landing field is less than 500 feet, and to the hangars and fairways from 600 to 1,200 feet. The residences of the appellants are 250 to 300 feet west of the center of this road. The rules of the Division of Aeronautics require that a plane be warmed up before using it in flight. The period of instruction for students is about 20 hours, and it appears that during that period the student makes about ten flights an hour, a total of twenty take-offs and landings per hour. Take-offs and landings...