United States v. 64.88 ACRES OF LAND, ETC.

• Decision Date: 24 April 1957
• Docket Number: No. 12064.,12064.
• Parties: UNITED STATES of America, Appellant, v. 64.88 ACRES OF LAND, MORE OR LESS, SITUATE IN ALLEGHENY COUNTY, PENNSYLVANIA, and Charles F. Chubb, et al.
• Court: U.S. Court of Appeals — Third Circuit

244 F.2d 534 (1957)

UNITED STATES of America, Appellant, v. 64.88 ACRES OF LAND, MORE OR LESS, SITUATE IN ALLEGHENY COUNTY, PENNSYLVANIA, and Charles F. Chubb, et al.

No. 12064.

United States Court of Appeals Third Circuit.

Argued February 5, 1957.

Decided April 24, 1957.

S. Billingsley Hill, Washington, D. C. (Perry W. Morton, Asst. Atty. Gen., D. Malcolm Anderson, Jr., U. S. Atty., John R. Gavin, Asst. U. S. Atty., Pittsburgh, Pa., Roger P. Marquis, Attys., Dept. of Justice, Washington, D. C., on the brief), for appellant.

Alexander Black, Pittsburgh, Pa. (John H. Morgan, Smith, Buchanan, Ingersoll, Rodewald & Eckert, Philadelphia, Pa., on the brief), for appellee.

Before McLAUGHLIN, STALEY and HASTIE, Circuit Judges.

HASTIE, Circuit Judge.

The United States is here appealing from an order of a district court dismissing a complaint and setting aside a declaration of taking in a condemnation proceeding initiated in the interest of the Department of the Air Force. The principal issues are whether the complaint and declaration of taking adequately describe the property interest the government proposes to take and whether the proposed acquisition and its intended use are shown to be within legislative authorization.

We turn first to the complaint and the declaration of taking to see what property the government seeks and for what purpose. The stated objective of the Air Force is "the removal and prevention of flight hazards on land under private ownership at the western end of Runway 1028, Greater Pittsburgh Airport." To that end the government proposes to subject appellee's land to a "clearance easement." Specifically, the government seeks to acquire the right to remove and the right to prevent the replacement or restoration of all obstructions, natural as well as artificial, which shall be of sufficient altitude to impinge an exactly located imaginary inclined trapezoidal plane extending across and above appellee's land. These rights of removal explicitly apply to all natural growth, all man made structures and even the earth itself where hilly portions reach the altitude of the limiting plane. Rights of ingress and egress to maintain this clearance are also asserted. The space to be cleared and kept free of obstruction is schematically indicated on a topographic map, made part of the amended declaration of taking, which shows both the position of the controlling planes with relation to actual elevations of ground level and, in profile, the existing obstructions, the removal of which would be authorized.

We think this description is clear and unambiguous. It specifies without any doubt or uncertainty what may be removed by the government and to what elevation above ground level the landowner remains free to build at any given place on his tract. Appellee does not deny this.

Nevertheless, appellee insists that in effect the government is, or may be, imposing on his land a greater servitude than is actually asserted. Appellee is apprehensive that the government may be taking, or as a result of this taking will claim, a right to fly aircraft very low over his land. The government denies that it is taking any right to fly in the air space above appellee's land or that it contemplates claiming any right of flight beyond that which, under the rationale of United States v. Causby, 1946, 328 U.S. 256, 66 S.Ct. 1062, 90 L. Ed. 1206, exists at all times without any taking from the landowner below. In this connection it is pointed out that the elevations defining the altitude above which no obstructions are to be permitted are substantially lower than any flight path which could lawfully be used or approved for approaching the present Greater Pittsburgh Airport under the regulations of the Civil Aeronautics Authority.

On this record it must be accepted that the claimed right of clearance is merely a provision for assuring that space shall be unoccupied and vision unobstructed above a designated altitude. Unquestionably, this is in aid of avigation. But no flight easement is mentioned or to be inferred, much less claimed, in the present pleadings and, therefore, no servitude can be imposed except for the asserted and precisely limited rights of clearance. United States v. 48.10 Acres of Land, S.D.N.Y.1956, 144 F.Supp. 258; United States v. 4.43 Acres of Land, N.D.Tex.1956, 137 F. Supp. 567. It is well established that, absent bad faith which is not argued here, the government's determination and explicit assertion of the nature and extent of the estate to be taken are not judicially reviewable. United States v. Kansas City, 10 Cir., 1946, 159 F.2d 125; United States v. Meyer, 7 Cir.1940, 113 F.2d 387; Simmonds v. United States, 9 Cir.1952, 199 F.2d 305. If any subsequent...