United States v. 15,909 ACRES, Civ. No. 1476

• Citation: 176 F. Supp. 447
• Decision Date: 25 November 1958
• Docket Number: Civ. No. 1476,1829-1834,1851.,1879,1850
• Parties: UNITED STATES of America, Plaintiff, v. 15,909 ACRES et al., Defendants. Vernon ASHCRAFT et al., Plaintiffs, v. UNITED STATES of America, Defendant. J. A. ASHCRAFT et al., Plaintiffs, v. UNITED STATES of America, Defendant. Orbie E. BROWNING et al., Plaintiffs, v. UNITED STATES of America, Defendant. William D. BROWNING, Plaintiff, v. UNITED STATES of America, Defendant. Thomas Allan MATTHEWS et al., Plaintiff, v. UNITED STATES of America, Defendant. Wayne VOSS et al., Plaintiffs, v. UNITED STATES of America, Defendant. Anne CHANDLER, Jack Stanford et al., Plaintiffs, v. UNITED STATES of America, Defendant. Alma Fox FULMER, Executrix of the Estate of Nannie Fox, deceased, Plaintiff, v. UNITED STATES of America, Defendant. Horace N. SMITH and Amy J. Smith, husband and wife, Plaintiffs, v. UNITED STATES of America, Defendant.
• Court: U.S. District Court — Southern District of California

176 F. Supp. 447

UNITED STATES of America, Plaintiff, v. 15,909 ACRES et al., Defendants.

Vernon ASHCRAFT et al., Plaintiffs, v. UNITED STATES of America, Defendant.

J. A. ASHCRAFT et al., Plaintiffs, v. UNITED STATES of America, Defendant.

Orbie E. BROWNING et al., Plaintiffs, v. UNITED STATES of America, Defendant.

William D. BROWNING, Plaintiff, v. UNITED STATES of America, Defendant.

Thomas Allan MATTHEWS et al., Plaintiff, v. UNITED STATES of America, Defendant.

Wayne VOSS et al., Plaintiffs, v. UNITED STATES of America, Defendant.

Anne CHANDLER, Jack Stanford et al., Plaintiffs, v. UNITED STATES of America, Defendant.

Alma Fox FULMER, Executrix of the Estate of Nannie Fox, deceased, Plaintiff, v. UNITED STATES of America, Defendant.

Horace N. SMITH and Amy J. Smith, husband and wife, Plaintiffs, v. UNITED STATES of America, Defendant.

Civ. Nos. 1476, 1829-1834, 1879, 1850, 1851.

United States District Court S. D. California, N. D.

November 25, 1958.

Laughlin E. Waters, U. S. Atty., by Luther L. Jensen, Asst. U. S. Atty., Los Angeles, Cal., for plaintiff.

L. A. MacNicol, Merced, Cal., C. Ray Robinson, Merced, Cal., by Eugene A. Mash, San Francisco, Cal., for defendants.

YANKWICH, District Judge.

On September 24 and 25, 1958, a partial trial was had in the above group of cases. Evidence was heard as to certain of the issues with the understanding that their determination was necessary before evidence as to the value of the estates involved was heard. An exception was made in the case of owners of certain tracts who were allowed to testify as to value in order to avoid their return for the conclusion of the trial. The evidence and the briefs filed subsequently were directed to several questions. The most important of these was the nature of the estate taken by the agreement. I am of the view that the evidence shows conclusively that the flight easement alleged to have been taken by the government does not cover the actual taking. The evidence is conclusive that the flight of jets creates noise and vibrations discernable both from the residences and on the property, which seriously impair the availability of the properties involved for residential purposes and diminish their value for such use. Regardless of any congressional limitations, the land owner, as an incident to his ownership, has a claim to the superadjacent airspace at such altitude as interferes with his enjoyment of the property and

"that invasions of it are in the same category as invasions of the surface." United States v. Causby, 1946, 328 U.S. 256, 265, 66 S.Ct. 1062, 1068, 90 L.Ed. 1206.

This reasoning applies with greater force here, when it is considered that jets were in the experimental stage and were not in the contemplation of the court when it defined the owner's rights (United States v. Causby, supra) or of the Congress when it defined the...