Town of East Haven v. Eastern Airlines, Inc.

• Decision Date: 30 July 1971
• Docket Number: Civ. A. No. 12175.
• Citation: 331 F. Supp. 16
• Court: U.S. District Court — District of Connecticut
• Parties: The TOWN OF EAST HAVEN et al., Plaintiffs, v. EASTERN AIRLINES, INC., et al., Defendants.

331 F. Supp. 16

The TOWN OF EAST HAVEN et al., Plaintiffs, v. EASTERN AIRLINES, INC., et al., Defendants.

Civ. A. No. 12175.

United States District Court, D. Connecticut.

July 30, 1971.

Cohen & DeMayo, New Haven, Conn., for plaintiffs; Anthony V. DeMayo, New Haven, Conn., of counsel.

Tyler, Cooper, Grant, Bowerman & Keefe, New Haven, Conn., for defendants Eastern Airlines, Inc. and Allegheny Airlines, Inc.; William R. Murphy, Louis M. Winer, New Haven, Conn., of counsel.

Thomas F. Keyes, Jr., Roger J. Frechette, New Haven, Conn., Robert M. Beckman, Washington, D. C., for defendant City of New Haven.

OPINION

McLEAN, District Judge.^*

Plaintiffs in this action are the Town of East Haven and certain individuals who reside in the vicinity of the Tweed-New Haven Airport. The airport is owned and operated by the City of New Haven. It lies partly within the City of New Haven and partly within the Town of East Haven.

Plaintiffs allege in substance that the operation of the airport and the operation of commercial airliners by defendants Eastern Airlines, Inc. (Eastern) and Allegheny Airlines, Inc. (Allegheny) in and out of the airport have "taken" plaintiffs' property without just compensation, in violation of the Fifth and Fourteenth Amendments, and have constituted a continuing trespass and a public and private nuisance. Plaintiffs seek an injunction against further operation of the airport and damages for the alleged diminution in value of their properties caused by these operations. The individual plaintiffs also seek recovery of so-called "emotional damage" to themselves, i. e., compensation for fear, annoyance, inconvenience and interference with their peace and quiet.

Originally, the City of New Haven was not made a party defendant. Subsequently, in December 1967, plaintiffs, with leave of court, filed an amended complaint joining the City as a defendant.

In January 1968, Chief Judge Timbers granted the motion of the Administrator of the Federal Aviation Agency¹ to dismiss the action as against him. At the same time he denied motions of defendants Eastern and Allegheny and of defendant City of New Haven to dismiss the action for lack of jurisdiction and failure to state a claim. He held that as to the airlines jurisdiction existed pursuant to 28 U.S.C. § 1331 or 28 U.S.C. § 1337, and that as to the City of New Haven jurisdiction existed pursuant to 28 U.S.C. § 1331. He held that the amended complaint stated a claim as to each of these defendants. Town of East Haven et al. v. Eastern Airlines, Inc., et al., 282 F.Supp. 507 (D.Conn. 1968).

In May 1970 I was designated to try the case. Thereafter I conducted pretrial proceedings as a result of which certain changes were effected in the parties and their claims. After a hearing I determined that the action should not be maintained as a class action, there being too many variables in the extent to which residents of the neighborhood were affected by airport and airline activities. The effect of this determination was to strike the allegation of the amended complaint that the individual plaintiffs were acting on behalf of "those similarly situated." Plaintiffs consented that the "New Haven Committee Against Airport Expansion" and the "East Haven Committee Against Airport Expansion," originally named in the amended complaint as representatives of the alleged class of residents of the neighborhood, be eliminated as parties plaintiffs. For reasons of his own, plaintiff Michael Rascati also withdrew.

This left as plaintiffs the Town of East Haven and twelve individuals. On the eve of trial it developed that title to certain of the parcels of real estate was in the joint names of some of the individual plaintiffs and their wives. I permitted the addition of the wives as parties plaintiff solely for the purpose of enabling these plaintiffs to assert claims with respect to the entire fee in their parcels of real property.

Plaintiffs voluntarily withdrew certain of the claims in their amended complaint against defendants Eastern and Allegheny, i. e., claims that operation of aircraft by these defendants was "illegal and/or negligent" in certain respects, and that plaintiffs have been damaged by representations made by these defendants to the Federal Aviation Agency. Plaintiffs also abandoned their claim that the actions of defendants violated the Civil Rights Act, 42 U.S.C. §§ 1983, 1985.

The non-jury trial was completed on October 27, 1970. Certain of the facts, primarily with respect to the history of the airport and the identity of the various airlines which have served it over the years, were stipulated. Upon the basis of all the evidence, I find the facts to be as follows.²

The Airport

The evidence hardly justifies the complaint's characterization of this facility as a "massive regional-type airport." From extremely modest beginnings it has grown into what is still a small airport, by metropolitan standards. It is, however, one of the two airports in Connecticut which provide "trunk line service," the other being the larger Bradley Field serving the Hartford area. The history of the airport's development may be briefly summarized as follows.

The airport started operations in 1931. It was a turf airport, without paved runways or navigational aids, other than a few lights. In 1941 two paved runways were constructed, one now known as Runway 2-20 running approximately north and south, and the other now known as Runway 14-32, crossing 2-20 diagonally and running approximately northwest to southeast. Runway 2-20 was 4,200 feet long, runway 14-32 was 4,100 feet long and each was 150 feet wide. Runway 14-32 has remained unchanged since its construction in 1941. Runway 2-20, however, has been twice enlarged. Since this is the more important of the two runways and is primarily the one used for the aircraft operations of which plaintiffs complain, the fact of the enlargement has significance in this case. In 1951, 571 feet were added to the north end of 2-20 making it 4,771 feet long. In 1967, 829 feet were added to the south end of 2-20 bringing it to its present overall length of 5,600 feet. These additions to the runway were constructed in part with federal funds granted to the City of New Haven for development of the airport pursuant to the National Airport Plan authorized by the Federal Airport Act, 49 U.S.C. § 1101, et seq.³ The extensions of 2-20 were accepted by the Federal Aviation Agency or its predecessor, the Civil Aeronautics Administration.

Over the years certain aids to aircraft navigation have gradually been constructed by the airport. The first was the installation, sometime in the 1950s, of a Visual Omni Range (VOR), a device which emits an electronic signal commonly referred to as a "radio beam." This signal is transmitted on a 360° range (hence the word "Omni") and can be followed into the airport by an airplane pilot from a distance of 25 miles out. The New Haven signal interrupts a similar signal broadcast from the Bridgeport airport at a point over Long Island Sound approximately four miles south of the airport, which is referred to as "Pond Point."

In December 1969 a control tower was constructed. It functions from 6:00 A.M. to midnight. It is operated by employees of the Federal Aviation Agency who control all traffic in and out of the airport. Before this tower was constructed, there was no such central control.

Quite recently, in June 1970, a "VASI" has been installed. This stands for Visual Approach Slope Indicator. It is a device which emits two beams of light, one red and one white, which can be seen by a pilot approaching the airport from the south. The device is set for a glide slope at an angle of 3° above the horizontal. This angle has been approved by the Federal Aviation Agency. If the pilot sees only the red light, he knows that he is below the 3° slope. If he sees only the white light, he knows that he is above it. If he sees a pink light, he knows that he is directly on the 3° slope.

The VASI operates only to the south of the airport. There is none pointed to the north. As the name indicates, the light must be seen to be effective. As yet, there is no instrument landing system at Tweed-New Haven Airport which will guide a pilot to the airport under weather conditions of little or no visibility. Runway 2-20, however, is now equipped with high intensity lights which are of some assistance at night and under bad visibility conditions. Apparently these were installed when runway 2-20 was extended in 1967.

The Aircraft

The first commercial airline to serve Tweed-New Haven Airport was American Airlines which began operations in October 1934 and continued until 1937, resumed in November 1941 and continued until May 1942, when all operations were suspended by the war. During the war period the airport was used by the Army Air Force as an air base. American Airlines resumed operations in 1946 and continued until April 1960. Throughout these years it operated piston-driven propeller aircraft of various types. No complaint of these operations is made by the present plaintiffs, whose grievances are based on later operations of turbo-prop and jet aircraft, particularly the jets.

Various other airlines, as for example, Northeast Airlines, Mohawk and New York Airlines, have from time to time been certificated to serve New Haven. If they have ever done so, there was no evidence about it. They do not figure in this case.

A small airline, Pilgrim, operates in and out of New Haven. There was at least one reference to it in the testimony, but the decision of this case does not turn in any way on that isolated incident.

Private planes have used the airport from the beginning. At the outset, these were small aircraft. Nowadays not only small planes but larger ones, some of them jets owned by various corporations, make use of the airport. There were several references in the testimony to these private planes, primarily to the fact...