Western v. McGehee

• Citation: 202 F. Supp. 287
• Decision Date: 19 February 1962
• Docket Number: Civ. No. 13436,12286.,12863
• Court: U.S. District Court — District of Maryland
• Parties: Basil M. WESTERN, Sr., and Evelyn B. Western, et al. v. James C. McGEHEE, Brigadier General, U.S.A.F., Thomas H. Holbrook, Colonel, U.S.A.F., Thomas A. Personette, Colonel, U.S.A.F. UNITED STATES of America v. 236.14 ACRES OF LAND, MORE OR LESS, Situate in PRINCE GEORGE'S COUNTY, State of MARYLAND, and the Estate of Nellie E. Sansbury, et al. UNITED STATES of America v. 133.85 ACRES OF LAND, MORE OR LESS, Situate in PRINCE GEORGE'S COUNTY, State of MARYLAND, and Alexander M. Heron, et al.

202 F. Supp. 287

Basil M. WESTERN, Sr., and Evelyn B. Western, et al. v. James C. McGEHEE, Brigadier General, U.S.A.F., Thomas H. Holbrook, Colonel, U.S.A.F., Thomas A. Personette, Colonel, U.S.A.F.

UNITED STATES of America v. 236.14 ACRES OF LAND, MORE OR LESS, Situate in PRINCE GEORGE'S COUNTY, State of MARYLAND, and the Estate of Nellie E. Sansbury, et al.

UNITED STATES of America v. 133.85 ACRES OF LAND, MORE OR LESS, Situate in PRINCE GEORGE'S COUNTY, State of MARYLAND, and Alexander M. Heron, et al.

Civ. Nos. 13436, 12863, 12286.

United States District Court D. Maryland.

February 19, 1962.

Charles W. Halleck and Hogan & Hartson, Washington, D. C., and James C. Rogers, Rockville, Md., for plaintiffs in Civ. No. 13436.

Thos. L. McKevitt, Dept. of Justice, of Washington, D. C., Joseph D. Tydings, U. S. Atty. and Stephen H. Sachs, Asst. U. S. Atty., Baltimore, Md., for defendants in Civ. No. 13436.

Joseph D. Tydings, U. S. Atty. and Stephen H. Sachs, Asst. U. S. Atty., Baltimore, Md., for plaintiff in Civ. Nos. 12863, 12286.

Charles W. Halleck and Hogan & Hartson, Washington, D. C., for moving defendants in Civ. Nos. 12863, 12286.

THOMSEN, Chief Judge.

The pending motions in these cases bring before the court further efforts by owners of improved property¹ adjacent to or near the Andrews Air Force Base to require the government to condemn an avigation easement over their lands.

The Condemnation Cases

In the two condemnation cases, Nos. 12863 and 12286, the government has acquired by right of eminent domain, a clearance or obstruction easement over the properties of defendant landowners. The estate acquired with respect to each tract is the same except for the heights of the glide plane surfaces and transitional plane surfaces,² which vary from 90 feet above the ground to ground level itself in the case of one tract.³

The declarations of taking filed in these cases contain no mention of the right to fly over the land. The following quotation from United States v. Brondum, 5 Cir., 272 F.2d 642 (1959), applies here: "In plain words, the Government seeks to acquire the right to cut trees and natural growth to a prescribed height and to remove man-made obstructions above a prescribed height. The estate therefore is sometimes referred to as a `flight obstruction easement'. Graphically and accurately, Judge Estes describes the easement as a `ceiling'. The purpose of the ceiling is to increase the margin of safety for flying by assuring that the glide zone will be free from natural growth or manmade obstructions and the pilot's vision unobscured above a designated altitude.

"An avigation easement may or may not contain provisions dealing with obstructions, but, unlike a clearance easement, in express terms it permits free flights over the land in question. It provides not just for flights in the air as a public highway — in that sense no easement would be necessary; it provides for flights that may be so low and so frequent as to amount to a taking of the property."⁴ 272 F.2d at 644-45.

The landowners have moved for a partial summary judgment in the condemnation cases. They contend that they own the airspace above the ceiling being imposed; that this airspace is being taken and severed from the rest of their property; that the government is using that airspace in a manner which is likely to reduce the value of the remainder of the property, thereby entitling them to compensatory damages for the value of the property actually taken and severance damages by virtue of the present and probable future use to which the superadjacent airspace will be put; and that unless the property is being taken for such public use, the condemnation would be unlawful.

This argument cannot prevail to obtain for the landowners in the condemnation cases any greater compensation than they are entitled to receive for the clearance easement taken by the government.

It has been repeatedly held that on such a record as this "* * * 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 an 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. 64.88 Acres of Land, Etc., 3 Cir., 244 F.2d 534, at 535-36 (1957).

As Judge Estes has pointed out: "This is because the Government in each of these proceedings has acquired title to the exact easement or estate which is described in the Declaration of Taking and nothing more. * * * Furthermore, the Court is powerless to change the Declaration of Taking so as to enlarge the easement or rights which the Government has condemned in these proceedings." United States v. 4.43 Acres of Land, Etc., N.D.Tex., 137 F.Supp. 567, at 572 (1956).

Landowners' Rights

The landowners overlook the fact that their property rights in the superadjacent airspace are limited by the principles stated in United States v. Causby, 328 U.S. 256, 66 S.Ct. 1062, 90 L.Ed. 1206 (1956), and by 49 U.S.C.A. § 1304, which provides: "There is recognized and declared to exist in behalf of any citizen of the United States a public right of freedom of transit through the navigable airspace of the United States." Sec. 1301 (24) states: "`Navigable airspace' means airspace above the minimum altitudes of flight prescribed by regulations issued under this chapter, and shall include airspace needed to insure safety in take-off and landing of aircraft."⁵

Of course, frequent flights of aircraft over property, at low altitudes, may cause injury and damage, for which the landowner is entitled to just compensation or damages, or may be so low and so frequent as to constitute a taking of property by the government for public use.

If such flights do not amount to a taking, but cause physical injury or damage, an action for damages may be maintained under the Federal Tort Claims Act. Weisberg v. United States, D.Md., 193 F.Supp. 815 (1961).

In United States v. Causby, supra, the Supreme Court held that flights over private land which are so low and frequent as to be a direct and immediate interference with the enjoyment and use of the land are as much an appropriation of the use of the land as a more conventional entry upon it. 328 U.S. at 261 et seq., 66 S.Ct. 1062. If such flights amount to a taking, and the government has not instituted condemnation proceedings to acquire an avigation easement, the landowners have a remedy in the District Court, under the Tucker Act, 28 U.S.C.A. § 1346(a) (2), or in the Court of Claims, 28 U.S.C.A. § 1491. United States v. Causby, supra; United States v. Brondum, supra, and cases cited, 272 F.2d at 646, n. 9. Klein v. United States, Ct.Cl. No. 157-58,⁶ dealt with a claim based upon the use of a different runway at Andrews Air Force Base. The landowners involved in the instant case have themselves filed such an action in the Court of Claims.

In addition to filing suit in the Court of Claims, these landowners filed an action against the Secretary of the Air Force in the United States District Court for the District of Columbia, alleging that avigation easements over their property had in effect been taken, and seeking to compel the Secretary, either by mandatory injunction or by relief in the nature of mandamus, to institute suitable condemnation proceedings. Although Judge Holtzoff was sympathetic with the plight of the landowners, and recognized certain equities on their side, he noted, on the other hand, that if the Secretary admits he has taken the easements he would surrender the right to contest the question whether the use which has been made of the airspace over the several properties constitutes the taking of property, an issue which he may litigate in the Court of Claims. Judge Holtzoff therefore dismissed the complaint. Western v. Zuchert, D.D.C., Civil Action 3844-61 (1961).

The Landowners' Action

Undaunted, the landowners are now pressing the action which they filed in this court against the Commanding Officer of Andrews Air Force Base, the Deputy Commander and the Operations Group Commander, for a declaratory judgment and an injunction. They allege in their complaint facts similar to those found by the Court of Claims in Klein v. United States, supra, except that this case involves another runway, recently enlarged, which is said to be the one now principally used. The essential allegations, aside from a recital of the parties and properties involved, may be summarized as follows: (1) that the defendants have permitted, caused and ordered the operation of numerous flights of aircraft from Andrews Air Force Base over plaintiffs' properties at low levels, (2) that within the near future the number of such flights are scheduled to increase, (3) that the flights are noisy, interfere with television and radio reception and with conversation, and constitute a hazard, (4) that the United States has instituted proceedings in this court to acquire clearance easements, (5) that the United States has not instituted proceedings to acquire avigation easements, or as the landowners put it, "to acquire lawfully the interest in the real property which is presently being taken from plaintiffs by force", (6) that defendants are without legal authority to take plaintiffs' properties in the manner described, and (7) that in depriving plaintiffs of their properties defendants are engaged in unauthorized and unlawful activities.

The landowners seek a judgment declaring the extent of the flights; that they cause and will cause damage and depreciation to the property of the plaintiffs, which constitutes a taking of such property; that such taking is continuous, is steadily increasing, and is unlawful; that "such actions by the defendants are illegal, unauthorized, and not...