Town of East Haven v. Eastern Airlines, Inc., 22

• Decision Date: 22 November 1972
• Docket Number: No. 22,Docket 72-1137.,22
• Citation: 470 F.2d 148
• Parties: The TOWN OF EAST HAVEN et al., Plaintiffs-Appellees, v. EASTERN AIRLINES, INC., et al., Defendants, City of New Haven, Appellant-Defendant.
• Court: U.S. Court of Appeals — Second Circuit

470 F.2d 148 (1972)

The TOWN OF EAST HAVEN et al., Plaintiffs-Appellees, v. EASTERN AIRLINES, INC., et al., Defendants, City of New Haven, Appellant-Defendant.

No. 22, Docket 72-1137.

United States Court of Appeals, Second Circuit.

Argued October 2, 1972.

Decided November 22, 1972.

Roger J. Frechette, Asst. Corp. Counsel, New Haven, Conn., for appellant-defendant.

Anthony V. DeMayo, New Haven, Conn. (Cohen & DeMayo, New Haven, Conn., of counsel), for plaintiffs-appellees.

Before MOORE, FEINBERG and MULLIGAN, Circuit Judges.

MOORE, Circuit Judge:

The plaintiffs are the Town of East Haven and property owners whose properties are in the vicinity of the Tweed-New Haven Airport, an airport owned and operated by the City of New Haven (the City). The defendants are the City of New Haven, Eastern Airlines and Allegheny Airlines, Inc.¹ After a non-jury trial, the District Court dismissed the action against the airlines and dismissed all claims against the City except claims for compensation for easements taken by the City in seven specific properties of seven plaintiffs. After a supplemental hearing as to damages, the District Court awarded various amounts ranging from $2,100 to $3,300 for a total of $18,400.² "Upon payment of the judgments, defendant City of New Haven will acquire a permanent easement in the properties of these plaintiffs for the operation of a similar number of turbo prop planes and jet planes of the size in use at the time of the trial October 14-27, 1970." 333 F.Supp. 338, 341 (S.D.N.Y.1971). The City appealed from the award of damages to those property owners.

The history of the development of the airport and its commercial use by Eastern and Allegheny Airlines as well as by private planes has been graphically and thoroughly set forth in the late Judge McLean's opinion, 331 F.Supp. 16 (1971). The location of the properties owned by the individual plaintiffs (the recipients of the damage awards) in relation to the airport and its runways has been described in his original and supplemental opinions, 331 F.Supp. at 21-26 and 333 F.Supp. 338 (1971).

The airport serves the City of New Haven and accessible cities and towns. It has been developed by the City aided by federal funds, pursuant to the National Airport Plan authorized by the Federal Airport Act, 49 U.S.C. § 1101 et seq.

The appellate issues before us are exceedingly limited. In fact the City concedes as much, saying (Brief, p. 11): "The question is whether plaintiffs have succeeded in proving the amount of that damage with reasonable certainty." The City claims that plaintiffs have proved no damage. No issue of injunctive relief is raised. The District Court denied any such relief, stating: "The right of the public to travel by air by means of modern airplanes far outweighs the disadvantage to the relatively few persons, such as these plaintiffs, who are adversely affected to some extent." 331 F.Supp. at 30. Moreover, "Trespass, Annoyance and `Emotional Damage'," as well as nuisance were rejected as items of damage by the Court. In short, the City questions only the award of damages for the easements taken in these specific seven properties.

The City's arguments assert many grounds. First, the City attacks the quality of, and the method used by, the plaintiffs' damage appraiser and extols the opinion of its own. Differences in opinions of appraisers in real estate valuation cases are not altogether surprising. The Trial Court had to, and did, weigh the testimony presented by all the parties and arrive at his own conclusions. Second, the City points to the fact that the plaintiffs acquired their properties subsequent to the creation of the airport. This fact alone is not determinative because, as the Trial Court found, plaintiffs' "grievances are based on later operations of turbo-prop and jet aircraft, particularly the jets." 331 F. Supp. at 20. Although the City takes issue with this conclusion, there can be no doubt that the advent of the jets aggravated the situation. As to the City's third claim, that the Court found it guilty of trespass, the Court held that "there should be no separate recovery by any plaintiff of damages for trespass, either against the City or against the airlines. * * * Where there has been no taking because there has been no significant invasion of plaintiffs' property, it would seem to follow, at least as far as the City is concerned, that there has been no trespass on that property." (Id. p. 35). Fourth, the City asks, "Can you have a taking when the value of the property has appreciated?" (Brief, p. 31). The answer is clearly "yes". The Court, after weighing all the testimony, quite properly found that the fair market value of certain of the plaintiffs' properties had been reduced, even though this value exceeded the original acquisition cost. 333 F.Supp. at 340. His discriminating approach is evidenced by the denial of damages to five other party plaintiffs. Fifth, the attack upon jurisdiction and the claim of res judicata made by the City are rejected. Lastly, the City urges that there is "Uncertainty of Judgment" in that the judgment does not "indicate with reasonable clearness the decision which the Court has rendered * * *." The City asks (Brief, p. 61) what kind of "an easement which is not defined as to length, width, height, or actual use, * * *" will it receive upon payment of the judgment awards, and in what form will such an easement be drafted in order to be recorded in the Land Records office.

To a certain extent the last point is well taken but it does not render the judgment void for uncertainty, as the City argues. At the time of trial, the Court...