Overflight Damage: Liability of Private and Federal Government aircraft operators for flights over land interfering with use and Enjoyment

Author:By Captain Richard J. Glasgow
Pages:04
 
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  1. INTRODUCTION

    The advent of jet aircraft and the continued growth of both civilian and military aviation have rendered mare acute the exiating conflict of interests between the operators of aircraft and the owners of the land over which they fly. This continued growth of aircraft operations has been accompanied by a clarification of some of the more basic legal principles applicable to aircraft activities. Far example, the ad ooelum 2 theory of land ownership has defl-nitely been laid to rest;a it has been made clear, moreover, that both aircraft operators and landowners possess certain interests in and rights to the superjacent air space:' and that low Rights alone may violate a landowner's rights as well as instances in which an aircraft, or a part of it, comes into physical contact with the landowner's property.6 However, many troublesome questions remain.

    herein m e those of the author and do not &cmariiy represent theviews of The Judge Advocate General's School or any other gowrnmentsl agenes.

    ** JAGC, U,S.

    Amy: Judge Advocate Section, 82nd Airborne Diviaion, Ft. Bragg, North C~rdina; LL.B., 1951, Univeraity of Tennessee; Member of Tennessee Bar.

    1 The peculiar legal significance, if any, of ''sonic boom" and ao.eailed "mnie boom damage" is not separately canaidered m this article. However, depending upon the type damage that results, %,e.. eraeked walls and broken windows or the mere annoyance of the noise, the prineiplea applicable to other eager of overflight damage, as defined herein, should be heid to ~pply.

    1 The complete atatement of the doctiine 88 qvoted by moat eommmtstm is "cujus est dum ejua est usque ad coelum." Literally the statement means that he who o m s the soil also owns upward to heaven and slm downward to perdition.

    9 United Stater V. Causby, 528 U.S. 256 (1946).4 Every state in the union by express terms or elear implication has given legal force to the concept of right of flight. "Navigation of the airspace i8 an absolute ensting right. The right of flight is an inherent natural right. Aeiid navigation is ~niveraally recognized and practiced. Ita very existence is for the genere1 mnehment of mankind and the development and advancement of civiliiati~n." Eubsnk, Tha Right ol Aw Flight, 58 Dick. L.Rev. 141, 144 (1964).

    *oo *UlB 69

    Tennessee Bar

    1 The peculiar legal significance, if any, of ''sonic boom" and ao.eailed "mnie boom damage" is not separately canaidered m this article. However, depending upon the type damage that results, %,e.. eraeked walls and broken windows or the mere annoyance of the noise, the prineiplea applicable to other eager of overflight damage, as defined herein, should be heid to ~pply.

    1 The complete atatement of the doctiine 88 qvoted by moat eommmtstm is "cujus est dum ejua est usque ad coelum." Literally the statement means that he who o m s the soil also owns upward to heaven and slm downward to perdition.

    9 United Stater V. Causby, 528 U.S. 256 (1946).4 Every state in the union by express terms or elear implication has given legal force to the concept of right of flight. "Navigation of the airspace i8 an absolute ensting right. The right of flight is an inherent natural right. Aeiid navigation is ~niveraally recognized and practiced. Ita very existence is for the genere1 mnehment of mankind and the development and advancement of civiliiati~n." Eubsnk, Tha Right ol Aw Flight, 58 Dick. L.Rev. 141, 144 (1964).

    *oo *UlB 69

    I United States Y. Cauaby, supra note S.

    I United States Y. Cauaby, supra note S.

    The purpose of this article is to ascertain what substantive law governs the liabilit) of aircraft operators, both private and governmental, far flights over private property which interfere with the use and enjoyment of such property (hereinafter referred to as overflight damage).$ Differences in the law applied to the private operator and the federal government operator will be noted where they exist. consideration will also be given to the means available far resolving or minimizing the various area8 of conflict between the interest of the owner of land in the full u8e and enjayment of his property and the interest of the public, the nation, and those who would engage in aircraft operations in the conduct of such operations in an atmosphere that is free of unnecessary and unreasonable restrictions.

    11. LIABILITY OF THE GOVERNMENT UNDER THE FIFTH AMENDMENT

    A, THE CACSBY DECISIOS

    The leading case dealing with the question of linbiiity of the federal government for damages to land resulting from air flights is United States v Causb8,' decided in 1946. An understanding of the Court's holding in this case in essential to the present inquiry. Therefore, it must be considered in some detail.

    The ultimate question for decision in the case was whether the Causbys' property had been taken within the meaning of the fifth amendment by freqwnt and regular Rights of army and navy aircraft over their land at low altitudes. The Causbys owned 2.8 acres of land near an airport outside Greensboro, North Carolina. In 1942 the federal gmernment leased B non-exclusive right of use of the airport for a term commencing 1 June 1942 and ending 30 June 1942, with provision far renewals until 1967 or six months after the end of the national emergency, whichever was later. Oneof the runways uaed resulted in flights directly over the Causby property which was utilized as a family residence and as a chicken farm. Beginning in May 1942, heavy military aircraft and fighter planes began to fly over the property. The end of the runway was some 2,220 feet from the hause and 2,275 feet from the barn so that the applicable 30 ta 1 safe glide angle prescribed by the Civil Aeranautics Administration (CAA) permitted planes to fly over the Causby property at a height of 83 feet (GI feet above the houseand 18 feet above the highest tree), Previous flights by lighter

    I A problem of like >mportance and magnitude. although not as unsettled

    in the legal sense, the liability ai the prwate amrator and the federal govern-ment 8% an operator of amerait far Rights which result ~n vound damage to priustely owned propsrty, IS not discussed herem

    7 328 U.S. 216 (1946).0 *co BOtiB

    OVERFLIGHT DAMAGE

    craft had not unduly interfered with the Causbys' use and occu-pation of the premises. The noise and glare from plane lights made sleeping difficult; the family became nervous and frightened. As a result of the noise a number of chickens killed themselvea by flying into the walls due to fright. Production fell off. The end result was the effective destruction of the use of the property as a commercial chicken farm.

    The Court of Claims found that the military flights had rendered the property useless as a commercial chicken farm, seriously interfered with its me as a home and substantially diminished its value. The court concluded that a servitude had been imposed upon the property and awarded the Causbys judgment in the amount of S2,000.s The Supreme Court reversed the judgment and remanded the case to the Court of Claims because of the requirement for additional findings of fact as to the precise nature and duration of the easement found to have been taken.8 Ha\vever, the Court, with Justices Black and Burton dissenting, held that a servitude had been imposed an the property far which compensation was due under the fifth amendment.lQ In substance the Court, speaking through Mr. Justice Douglas, made the following important pronouncements :

    a. The common law doctrine that ownership of land extends upward to the periphery of the universe will not be applied ta adjudge the respective rights of landowner and aircraft operator in airspace." b. The character of the invasion, not the amount of damage, is the controlling factor in determining whether a taking has occurred; a partial taking can OCCUI', e a , a servitude in the nature of an easement of flight.'* c. The landowner owns at least as much of the space above the ground as he can occupy or use in connection with the land; the factthat he does not occupy it in a physical sense is not ~ontrolling.~~ d. Flights over private land are not a taking, unless they arc so low and 90 frequent 8s to constitute a direct and immediate interference with the enjoyment and use of the land; if the frequency and altitude of Rights wholly deprive (i landowner of the use of his land B taking occurs even though no entry is ever made upon the surface of the land."

    1 60 F SUPP.

    761 ICt. C1.19463.10 Id. at 261-62.$1 Id at 261.12 Id. at 262.13 Id. at 264.14 Id. at 266.

    328 US at 268.

    A00 8041B 71

    e. The airplane is a part of modern life, and the inconveniences

    which it causes are normally not compensable under the fifth amendment; airspace apart from the immediate reaches above the land is a part of the public domain.1i

    1. WHAT CONSTITCTES A TAKISG?

      In concluding in Causbu that there was a taking for which compensation must be paid the Court noted that the path of alide taken by the planes which caused the damage was not a part af the navigable airspace that Congress had placed in the public domain, %.e., "airspace above the minimum safe altitudes of flight" prescribed by CAA.Ia Subaequently the Civil Aeronautics Board included within its definition af the minimum safe altitudes of flight that airspace which was necessary for take-off and landing." The Board considered this glide path to constitute B part of navigable airspace.18 Whether the Board's interpretation of the effect af the regulations was proper may be debated. However, the intent of Congress in this regard is now perfectly clear. In the Federal Aviation Act of 1958, Congress defined navigable airspace a8 including the airspace needed to insure safety in take-off and landing of aircraft.19

      Since, under the rationale adopted in...

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