Thornburg v. Port of Portland

• Decision Date: 07 November 1962
• Citation: 376 P.2d 100,233 Or. 178
• Parties: Margaret K. THORNBURG, and Margaret K. Thornburg, Executrix of the Estate of Bernhart Mesch Thornburg, also known as Bernard M. Thornburg, deceased, Appellants, v. The PORT OF PORTLAND, a Municipal Corporation, Respondent.
• Court: Oregon Supreme Court

Page 100

376 P.2d 100

233 Or. 178

Margaret K. THORNBURG, and Margaret K. Thornburg, Executrix

of the Estate of Bernhart Mesch Thornburg, also

known as Bernard M. Thornburg, deceased, Appellants, v. The PORT OF PORTLAND, a Municipal Corporation, Respondent.

Supreme Court of Oregon, In Banc.

Argued and Submitted July 2, 1962.

Decided Nov. 7, 1962.

James H. Clarke, Portland, for appellants. Wayne Hilliard, Cecil H. Greene, and Koerner, Young, McColloch & Dezendorf, Portland, on the briefs.

Lofton L. Tatum, Portland, for respondent. John G. Holden and Wood, Wood, Tatum, Mosser & Brooke, Portland, on the brief.

Before McALLISTER, C. J., and ROSSMAN, WARNER, PERRY, SLOAN, O'CONNELL, and GOODWIN, JJ.

GOODWIN, Justice.

A trial jury denied plaintiffs the compensation which they sought in an action for 'inverse condemnation'. ¹ In so doing, the jury necessarily found that the Port of Portland had not taken the plaintiff's property. The plaintiffs appeal.

The issues in their broadest sense concern the rights of landowners adjacent to airports and the rights of the public in the airspace near the ground. Specifically, we must decide whether a noise-nuisance can amount to a taking.

The Port of Portland owns and operates the Portland International Airport. It has the power of eminent domain. It has used this power to surround itself with a substantial curtilage, but its formal acquisition stopped short of the land of the plaintiffs. For the purposes of this case, the parties have assumed that the Port is immune from ordinary tort liability. Further, it is conceded that injunctive relief would not be in the public interest. Aircraft are not ordinarily operated by the Port itself, but by third parties which use its facilities. Air navigation and other related operations are, for all practical purposes, regulated by a federal agency. The Port merely holds the airport open to the flying public.

The plaintiffs own and reside in a dwelling house located about 6,000 feet beyond the end of one runway and directly under the glide path of aircraft using it. Their land lies about 1,500 feet beyond the end of a second runway, but about 1,000 feet to one side of the glide path of aircraft using that runway.

The plaintiffs contend that flights from both runways have resulted in a taking of their property. Their principal complaint is that the noise from jet aircraft makes their land unusable. The jets use a runway the center line of which, if extended, would pass about 1,000 feet to one side of the plaintiffs' land. Some planes pass directly over the plaintiffs' land, but these are not, for the most part, the civilian and military jets which cause the most noise.

The plaintiffs' case proceeded on two theories: (1) Systematic flights directly over their land cause a substantial interference with their use and enjoyment of that land. This interference constitutes a nuisance. Such a nuisance, if persisted in by a private party, could ripen into a prescription. Such a continuing nuisance, when maintained by government, amounts to the taking of an easement, or, more precisely, presents a jury question whether there is a taking. (2) Systematic flights which pass close to their land, even though not directly overhead, likewise constitute the taking of an easement, for the same reasons, and upon the same authority.

The Port of Portland contends that its activities do not constitute the taking of easements in the plaintiffs' land. The Port argues: (1) The plaintiffs have no right to exclude or protest flights directly over their land, if such flights are so high as to be in the public domain, i.e., within navigable airspace as defined by federal law. ² (2) The plaintiffs have no right to protest flights which do not cross the airspace above their land, since these could commit no trespass in any event. Accordingly, the Port contends, there is no interference with any legally protected interest of the plaintiffs and thus no taking of any property for which the plaintiffs are entitled to compensation. In short, the Port's theory is that the plaintiffs must endure the noise of the nearby airport with the same forbearance that is required of those who live near highways and railroads. The Port's arguments, supported as they are by substantial authority, prevailed in the lower court, even though they were not entirely responsive to the plaintiffs' case. (The plaintiffs founded their case upon a nuisance theory; the defendant answered that there was no trespass.)

The trial court proceeded as if the rights of the plaintiffs were limited by the imaginary lines that would describe a cube of airspace exactly 500 feet high and bounded on four sides by perpendicular extensions of the surface boundaries of their land. The trial court thus in effect adapted the law of trespass to the issues presented in this case, and held that unless there was a continuing trespass within the described cube of space there could be no recovery. The trial court accordingly adopted the view that even if there was a nuisance, a nuisance could not give rise to a taking.

This appeal requires us to decide whether, under the circumstances of this case, the landowner has a right to have the jury pass upon his claim. If we so hold, then we have necessarily decided that the owner's interest in the use of his land free from the inconvenience of noise coming in upon him from outside his boundaries is an interest for the taking of which the government must pay. It would, of course, remain for the jury, under proper instructions, to decide when such a taking has occurred.

There is no doubt that noise can be a nuisance. See cases collected in Annotation, 44 A.L.R.2d 1381, 1394 (1953) (dance halls); Lloyd, Noise As a Nuisance, 82 Pa.L.Rev. 567 (1934); de Funiak, Equitable Relief Against Nuisances, 38 Ky.L.J. 223 (1949); and Notes, 15 Or.L.Rev. 268 (1936). At common law, one could obtain a prescriptive right to impose an unreasonable noise upon one's neighbor, and hence an easement for a nuisance. Sturges v. Bridgman, L.R. 11 Ch.D. 852 (1879); Restatement, Property, § 451, Comment a. (The authorities do not all agree about when the prescriptive period begins to run, ³ but that problem is not before us now.) It is clear that freedom from unreasonable noise is a right which, in a proper case, the law will protect. On similar principles, offensive smells are treated as nuisances for which a remedy will lie. See cases collected in Annotation, 18 A.L.R.2d 1033 (1950) (slaughterhouse). It is equally clear that a reasonable volume of noise (like a reasonable olfactory insult from industrial odors) must be endured as the price of living in a modern industrial society. See generally Restatement, Torts, §§ 822-831. Freedom from noise can be a legally protected right.

We come then to the facts of the case at bar. At the outset the parties concede that because of the wording of the Oregon Constitution, Art. I, § 18 (eminent domain), a plaintiff aggrieved by a public activity must show that there has been a taking of his property. There must be more than merely the suffering of some damage. See, e. g., Moeller et ux. v. Multnomah County, 218 Or. 413, 424, 430, 345 P.2d 813 (1959) (See Note, 40 Or.L.Rev. 241 (1961)); Tomasek v. Oregon State Highway Comm., supra note 1.

A taking within the meaning of Oregon Constitution, Art. I, § 18, has been defined as 'any destruction, restriction, or interruption of the common and necessary use and enjoyment of the property of a person for a public purpose * * *.' Morrison v. Clackamas County, 141 Or. 564, 568, 18 P.2d 814, 816 (1933). See Note, 16 Or.L.Rev. 155 (1937). The definition from Morrison v. Clackamas County, supra, is broad enough to cover a continuing nuisance, and hence the plaintiffs' case, unless there is some policy reason for limiting its application.

Since United States v. Causby, 328 U.S. 256, 66 S.Ct. 1062, 90 L.Ed. 1206 (1946), and particularly since Griggs v. Allegheny County, 369 U.S. 84, 82 S.Ct. 531, 7 L.Ed.2d 585 (1962), we know that easements can be taken by repeated low-level flights over private land. Such easements have been found in actions against the federal government (Causby) and in actions against municipal corporations (Griggs). When such easements are said to have been taken, compensation must be paid to the owners of the lands thus burdened. This much appears to be settled.

It is not so well settled, however, that the easements discussed in the Causby and Griggs cases are easements to impose upon lands near an airport a servitude of noise. Courts operating upon the theory that repeated trespasses form the basis of the easement have not found it necessary to decide whether a repeated nuisance, which may or may not have been an accompaniment of a trespass, could equally give rise to a servitude upon neighboring land. It must be remembered that in both the Causby and Griggs cases the flights were virtually at tree-top level. Accordingly, both decisions could perhaps be supported on trespass theories exclusively. Following the Causby case, several federal district courts held that while repeated flights at low levels directly over private land may amount to a taking for which compensation must be paid, repeated flights nearby but not directly overhead must be endured as mere 'damages' which, for various reasons, may not be compensable. See, e. g., Moore v. United States, 185 F.Supp. 399 (N.D.Tex.1960); Freeman v. United States, 167 F.Supp. 541 (W.D.Okl.1958); and see Cheskov v. Port of Seattle, 55 Wash.2d 416, 348 P.2d 673 (1960), where the court found no taking, but held that damages might be recoverable in a proper case under the Washington constitution. ⁴

After the case at bar had been argued and submitted, the United States Court of Appeals for the Tenth Circuit, which had previously held in Batten v. United States, 292 F.2d 144 (10th Cir. 1961), that a complaint sounding substantially in nuisance...