Can Avigation Easements Be Acquired by Prescription?By Howard Beckman
Attorney at Law
All rights to publication are reserved by the author. Republication of all or any portion of the text, other than "fair use," requires express permission from the author.
(Revised December 19, 2015)
An easement a legally enforceable use of property by someone other than the owner is most commonly granted to public utilities or government agencies for uses that benefit the public at large (e.g., streets). It is typically negotiated, paid for, and recorded in a formal document signed by the property owner and the easement holder. An easement "runs with the land," meaning that it is enforceable against all succeeding owners of the property.
Public agencies invested with the power of eminent domain can acquire an easement through legal proceedings called condemnation. The chief function of these proceedings is to assure that the landowner will be fairly compensated for the easement. If the agency does not initiate condemnation proceedings, the landowner can file an action in "inverse condemnation" to force the agency to go through the formalities of condemnation and pay the value of the easement. The resulting proceeding in court is essentially the same as a condemnation action initiated by the public agency. (However, see the U.S. Supreme Court case United States v. Clarke for discussion of important differences between the affirmative process of condemnation and inverse condemnation proceedings, in particular the different consequences of the two.)
Under certain circumstances an easement can be obtained "by prescription," a form of adverse possession. A classic example is when a neighbor openly and continuously drives his vehicle across your land without permission and you make no effort to stop the trespass. After a period of time fixed by state law, the neighbor could claim a legally enforceable right to drive across your land, that is, an easement by prescription (or prescriptive easement).
Airports acquire avigation easements in the airspace over neighboring properties in order to (1) prevent construction of buildings and towers, planting of trees, installation of lighting, or any other development that might interfere with aircraft takeoff and landing, or (2) protect against liability for any nuisance caused by airplanes using the airport, i.e., the impact of noise, fumes, and vibration on the "use and enjoyment" of properties under the flight paths to and from the airport. The former is a type of "hazard easement" while the latter is a type of "nuisance easement" but in practice both are called avigation easements. The two types are not typically combined in one legal document, although they may be.
Airports rarely take the trouble to acquire nuisance avigation easements by initiating condemnation proceedings. The nuisance easements are sometimes imposed on new developments near an airport, but only if the airport owner (a city or county) also has jurisdiction over the land surrounding the airport. An airport may also require a nuisance avigation easement as a condition for installing insulation against noise in homes and schools. When sued for nuisance by neighboring landowners, airports assert that they have a prescriptive avigation easement over the plaintiff's land and therefore are not liable for any nuisance due to aircraft noise, fumes, or vibration. In theory a prescriptive avigation easement is acquired by simply flying over the property for a number of years (the number set by state law to perfect a claim for adverse possession).
Can an airport acquire an avigation easement by prescription? The question stands at the intersection of the law of prescriptive easements and the law of eminent domain, since an avigation easement can only be owned by an airport (not individual pilots or aircraft) and public airports are owned by government (typically a city or county). In California the question has not been answered conclusively by the courts. In other states the courts are virtually unanimous in holding that an avigation easement may not be acquired by prescription.
Prescriptive easements are recognized in Civil Code § 1007:
The California statutory law of eminent domain permits government to take private property for public use and expressly permits avigation easements. The general statutes on eminent domain are found in the Code of Civil Procedure, Title 7 (section 1230.010 et seq.). Section 1240.110 states:
Avigation easements are recognized in the State Aeronautics Act in connection with eminent domain (Public Utilities Code section 21652):
(1) Any property necessary to permit the sale and efficient operation of the airport, or to permit the removal, elimination, obstruction-marking, or obstruction-lighting of airport hazards, or to prevent the establishment of airport hazards.
(2) Airspace or an easement in such airspace above the surface of property were necessary to permit imposition upon such property of excessive noise, vibration, discomfort, inconvenience, interference with use and enjoyment, and any consequent reduction in market value, due to the operation of aircraft to and from the airport.
California Case Law
California case law on prescriptive easements is well developed, but the specific question of avigation easements is comparatively rare.
The earliest case in California concerning avigation easements was in fact a federal court case, Hinman et al. v. Pacific Air Transport, decided in 1936 by the Ninth Circuit U.S. Court of Appeals (84 F.2d 755). (The case was brought in federal court because of diversity of citizenship only.) The Ninth Circuit panel, applying California law, squarely confronted the issue of prescriptive avigation easements:
The question of avigation easements by prescription was first presented to a California appellate court in the 1969 case Pacific Gas & Electric Co. v. Peterson (5th District Ct. Appeals, 270 Cal.App.2d 434). In this case PG&E brought an action in eminent domain to acquire an easement over Peterson's land and adjacent lands for the installation and maintenance of electric power lines. All the lands were used to grow rice.
In the trial court Peterson argued that installation of power lines would destroy a prescriptive avigation easement he had acquired on his neighbor's land for the purpose of aerial seeding, fertilizing, and spraying his own land. The trial court ruled that Peterson's evidence merely proved a permissive use of the airspace over his neighbor's land, not a prescriptive easement. In his briefs to the court of appeals Peterson continued to argue for a prescriptive easement, but at oral argument he discarded this claim in favor of an "irrevocable license". Because the appellate court concluded that the trial court's ruling was supported by substantial evidence, it did not squarely address the issue of prescriptive avigation easements. Instead, in a footnote to the court's opinion the court stated:
In 1974 the Second District Court of Appeal (Division 3) was faced with the issue of prescriptive avigation easements in Drennen v. County of Ventura. (38 Cal.App.3d 84.) The court deftly avoided a decision whether an avigation easement may be acquired by prescription, holding instead that, assuming such an easement could be so acquired, an essential element of prescription was missing in this case.
In footnote 2 the court states: "We see no reason why an avigation easement may not be acquired by prescription in this state. Restatement Second of Torts, section 159 (1965) ... indicates to the contrary. We do not decide the point, however." (Italic added.) In his one-sentence concurrence Justice Allport emphasizes this latter point: "Assuming without deciding that an avigation easement may be acquired by prescription in this state, the evidence in the instant case fails to establish that one was ever acquired by the Fosters."
In 1980 the Second District Court of Appeal (Division 2) again had a case involving avigation easements. In Smart v. City of Los Angeles (112 Cal.App.3d 232, 169 Cal.Rptr. 174) plaintiff filed actions for noise nuisance arising from air traffic at Los Angeles International Airport and inverse condemnation. At issue in the appellate court was the date of accrual of the cause of action for inverse condemnation.
The court rejected the majority rule for determining the date of accrual the "date of stabilization", i.e., when the damaging activity has reached a level that is deemed to substantially interfere with the owner's use and enjoyment of his property and instead applied the Drennen court's rationale for determining the date, namely the date when the aircraft noise actually begins to interfere substantially with the owner's use and enjoyment. In both this and the Drennen case the plaintiffs did not reside on their land next to the airport, and in both cases the courts held that the owners' use and enjoyment of their land was not adversely affected until they attempted to sell the land. The court does not rely on the Drennen opinion, either expressly or implicitly, for the proposition that avigation easements may be acquired by prescription. In fact, the court is careful to repeat the Drennen court's specific language: "assuming an avigation easement could be acquired by prescription in California, such acquisition had not occurred [in this case]." (Italic added.)
In the third case involving avigation easements to reach the Second District Court of Appeal (Division 1), Institoris v. City of Los Angeles (210 Cal.App.3d 10, 258 Cal.Rptr. 418), the plaintiff filed a claim for noise nuisance due to air traffic from Los Angeles International Airport.
On appeal the parties filed an agreed statement in which they agreed that a number of facts had been "alleged and proved." Among these stipulated facts were that "the City acquired an avigation easement over plaintiff's property by prescription and adverse use and possession." According to the appellate court, the trial court had determined that the City of Los Angeles "had acquired an avigation easement by prescription."
Thus the issue of whether an airport could acquire an avigation easement by prescription was not raised by the plaintiff and was not considered by the court. The court simply accepted the avigation easement as fact in order to reach the issues decided in the case: how acquisition of an avigation easement (not necessarily one acquired by prescription) affects causes of action for inverse condemnation and nuisance. The Institoris case, like the Drennen and Smart cases, cannot be cited as judicial support for prescriptive avigation easements.
In this most recent case before the Second District Court of Appeal (Division 3), Baker v. Burbank-Glendale-Pasadena Airport Authority (220 Cal.App.3d 1602, 270 Cal.Rtr. 337), plaintiffs filed actions for nuisance due to air traffic from the airport and inverse condemnation.
The trial court concluded that interference with plaintiffs' use of their property (noise, smoke, and vibration due to aircraft overflight) began most recently in 1973, which "commenced the running of the five-year period of ... prescriptive use, resulting in an avigation easement." Thus, in the court's view the statute of limitations barred plaintiffs' action for inverse condemnation. "Having acquired the right to interfere with plaintiffs' use and enjoyment of their properties by prescription, [the airport owner] was not required to compensate them for the easement." Also, the court said, the existence of the avigation easement barred any recovery for nuisance damages since the airport had acquired an easement "to do the very things alleged by plaintiffs as a basis for recovery of damages."
As in the earlier cases, the question whether prescriptive avigation easements are consistent with the law of easements and eminent domain was not raised by plaintiffs. Lacking this issue, the court accepted as fact the existence of a prescriptive easement. Notably, this was the first court to treat the easement as factual without the cautionary language of the courts in the earlier cases ("assuming without deciding").
If the concept of the prescriptive avigation easement continues to be unchallenged in the courts, it will, like many legal concepts, eventually be viewed as a "given" in the jurisprudence of eminent domain and easements. It will become increasingly difficult to challenge a legal concept that has been accepted by numerous courts and expect that some courageous judge will go against a habit of thinking. There is a fundamental unfairness in an airport's ability to claim prescriptive avigation easements over tens of thousands of residential lots when few if any servient property owners have the resources to commence an action in inverse condemnation in a timely manner to force the airport authority to pay for the easement. Because the prescriptive avigation easement has not been challenged in California, the state's courts have not had to consider the strong arguments against such an easement in the courts of other states (see below).
In the 1984 case of Warsaw v. Chicago Metallic Ceilings, Inc. the California Supreme Court discusses at length the law of prescriptive easements. (35 Cal.3d 564, 199 Cal.Rptr. 773.) A fundamental issue in the case, pointedly raised by the dissent, is whether prescriptive easements were created by statute or existed at common law before the California statute (Civil Code §1007). This case is essential reading for drawing any conclusions about the California law of prescriptive avigation easements.
The author of a 2001 article on avigation easements says unequivocally that California law recognizes prescriptive avigation easements. (David Casanova, "The Possibility and Consequences of the Recognition of Prescriptive Avigation Easements by State Courts", Boston College Environmental Affairs Law Review 28:399-427.) Casanova's analysis and conclusions depend heavily on the Institoris case but he entirely overlooks the status of the avigation easement in the pleadings and the court's analysis of the issues. In addition, he gives special emphasis to California in predicting a "trend" toward recognition of prescriptive avigation easements (the "possibility" in his title), despite the fact, documented in the article, that the state courts of the U.S. overwhelmingly disapprove of prescriptive avigation easements. In this light the article is more polemic than analysis. Nevertheless, the article is a useful summary of many of the issues associated with prescriptive avigation easements.
The Argument Against Prescriptive Avigation Easements
The rationale for not recognizing a prescriptive avigation easement has been articulated most completely by the state supreme courts of Connecticut, Nebraska, and West Virginia.
Connecticut Supreme Court
The question of whether an avigation easement can be acquired by prescription was addressed at length in a 1993 case before the Second Circuit U.S. Court of Appeals, County of Westchester v. Commissioner of Transportation (9 F.3d 242). The district court had decided that the county had, as a matter of law, acquired avigation easements by prescription. Since the claim for prescriptive avigation easement was asserted under Connecticut law, and the question whether the law recognized such easements had not been decided by a Connecticut state court, the federal court certified the question to the Connecticut Supreme Court, noting "the absence of controlling precedent in Connecticut on the issues presented and the potential effect a decision might have on the property rights of Connecticut residents." The Connecticut court issued an opinion (County of Westchester, New York v. Town of Greenwich, 227 Conn. 495, 629 A.2d 1084). This opinion was summarized by the U.S. Court of Appeals as follows:
First, the Connecticut Supreme Court made clear that "[p]rescriptive easements are recognized in [Connecticut]." Id. at 501, 629 A.2d 1084 (citing Connecticut General Statutes s 47-37; Klar Crest Realty, Inc. v. Rajon Realty Corp., 190 Conn. 163, 459 A.2d 1021 (1983)). The Court then enumerated the conditions for obtaining a prescriptive easement emphasizing that, under Connecticut law, "'[t]o establish an easement by prescription it is absolutely essential that the use be adverse. It must be such as to give a right of action in favor of the party against whom it has been exercised.'" Id. (citing Whiting v. Gaylord, 66 Conn. 337, 344, 34 A. 85 (1895)). In addition, "the party claiming to have acquired an easement by prescription must demonstrate that the use of the property has been 'open, visible, continuous and uninterrupted for fifteen years and made under a claim of right.'" Id. (citations omitted). The Court further noted that "Connecticut law refrains from extinguishing or impairing property rights by prescription unless the party claiming to have acquired an easement by prescription has met each of these stringent conditions." Id.
The Connecticut Supreme Court decided that the County could not have obtained a prescriptive avigation easement "in these circumstances" as a matter of law because the County's use of the flight and clearance zones was not adverse. The Court held that the landowners "had no right of action against the plaintiff to stop the overflights because federal law prohibits landowners from obtaining injunctive relief against aircraft using the navigable airspace of the United States." Id. 227 Conn. at 502-03, 629 A.2d 1084 (citing City of New Haven, 367 F.Supp. at 1341; Town of East Haven v. Eastern Airlines, Inc., 331 F.Supp. 16 (D.Conn.1971), aff'd, 470 F.2d 148 (2d Cir.1972), cert. denied, 411 U.S. 965, 93 S.Ct. 2144, 36 L.Ed.2d 685 (1973)). The Court noted that federal authorization provides additional grounds for finding that the County's use was not adverse. Id. 227 Conn. at 503 n. 12, 629 A.2d 1084. The Court concluded that "[i]n these circumstances, the defendants could not have reclaimed the exclusive use of the airspace above their properties and, therefore, the use of that airspace by the plaintiff can not be considered adverse." Id. at 503, 629 A.2d 1084. The Connecticut Supreme Court also considered the argument that the County's use was adverse because of defendants' right to bring a takings claim pursuant to the Fifth and Fourteenth Amendments to the United States Constitution under the theory of United States v. Causby, 328 U.S. 256, 266, 66 S.Ct. 1062, 1068, 90 L.Ed. 1206 (1946) (recognizing a compensable taking for flights "so low and so frequent as to be a direct and immediate interference with the enjoyment and use of the land") and Griggs v. Allegheny, 369 U.S. 84, 88-89, 82 S.Ct. 531, 533, 7 L.Ed.2d 585 (1962). The Connecticut Court rejected this argument too. The Court noted: "Although we doubt that we would ever require a landowner to assert a constitutional takings claim in order to avoid the acquisition of a prescriptive avigation easement, we are satisfied that these defendants were not obliged to do so." Id. Thus, the Connecticut Supreme Court held that, under Connecticut law, the County could not have obtained a prescriptive avigation easement.
Nebraska Supreme Court
In 1995 the Nebraska Supreme Court, in Fiese v. Sitorius (526 N.W.2d 86, 247 Neb. 227), articulated a more direct, and traditional, rationale for not recognizing prescriptive avigation easements. In this case the plaintiff, who operated a grass airstrip on his land as part of his agricultural spraying business, asked the court to enjoin his neighbors from placing anything on their land that would obstruct take-off and landing at the airstrip. (Defendant had allegedly constructed a haystack 30 feet wide and 15 feet high.) Plaintiff claimed he had acquired an avigation easement by prescription to take off and land over his neighbors' land because he, and his father before him, had done so continuously for over 20 years.
The court first acknowledged that it had never ruled on whether a private party may obtain an avigation easement by prescription. It cited the statutory existence of avigation easements and the right of certain political subdivisions to acquire such easements through eminent domain. It took note of the mixed results in cases in other states dealing with the issue of prescriptive avigation easements. Finally, the court noted that the Connecticut Supreme Court in County of Westchester v. Commissioner of Transportation (see above) had concluded that an avigation easement could not be acquired by prescription because overflights occur in the "navigable airspace of the United States" and thus could not be adverse to the rights of the landowner.
The court agreed with the Connecticut court: use of the airspace to safely take off and land is permissive, under a license from the U.S. government, and thus could never ripen into a prescriptive easement; that is, the use could never, as a matter of law, be adverse. The license of the U.S. government is established by the statutory right of freedom of transit through the navigable airspace of the United States (Federal Aviation Act of 1958; 49 USC App. 1301(29), 1304).
West Virginia Supreme Court
In Sticklen v. Kittle (W.Va. 1981; 287 S.E.2d 148, 168 W.Va. 147) local residents sought to enjoin their board of education from building a high school next to an airport. Subsequently the Airport Authority intervened in the case, then filed a separate action to enjoin construction of the school. The Airport Authority claimed it had prescriptively acquired an avigation easement over the school site.
In its opinion the West Virginia Supreme Court analyzed in considerable detail the cases from various states that had considered the question of prescriptive avigation easements. (Some of these cases are discussed in the next section.) It rejected all cases purportedly supporting such easements as inapposite or unclear in reasoning.
A handful of other cases have addressed the question of prescriptive avigation easements. However, most of these cases present unique circumstances, or do not forthrightly declare the law of prescriptive avigation easements.
Kentucky 1968 -- In Shipp v. Louisville and Jefferson County Air Board (Ky. 1968, 431 S.W.2d 867; cert. denied 1969, 393 U.S. 1088, 89 S.Ct. 880) landowners near an airport refused to permit the county to shorten two trees on their residential property, which the county claimed presented a hazard to operations at its airport. The county sued for declaration that it had a prescriptive right to a "clear zone" approach to the airport since 1956, 15 years after the airport was put into operation. The county conceded that it had a right to condemn the obstructing trees, but argued that if it had to condemn every tree that grows up into the airport approach zone, it would be saddled with an "impossible burden."
The court's holding is unclear. It concluded that the Air Board had a right to "airspace above the minimum altitude of flight prescribed by regulations" authorized by federal statute (49 USC 1301(24)) but that the landowners' right to enjoy their trees was acquired before such regulations were promulgated, i.e., before the right of the Air Board was fixed in law. In addition, the court states, without elaborating, that the Air Board had no prescriptive right "for the simple reason that it has not exercised adverse rights in the space involved for fifteen years." Thus, this case does not clearly support or preclude prescriptive avigation easements.
Washington 1976, 1980 -- The Washington Supreme Court has considered prescriptive avigation easements in two cases. In the 1976 case Highline School District No. 401, King Co. v. Port of Seattle (548 P.2d 1085, 87 Wash.2d 6) a school district brought an action for inverse condemnation seeking damages due to aircraft noise, i.e., an action to force the airport to pay for an avigation easement after years of overflights that disrupted classrooms. This case therefore presented the novel (in Washington) question whether a government entity (the Port of Seattle) could acquire a prescriptive easement over the property of another government entity (the school district), rather than a private individual. After a lengthy discussion of the law of prescriptive easements -- in which avigation easements are not expressly mentioned -- the court concluded that the rule precluding a private party from acquiring government property by adverse possession does not apply when the claimant is another unit of government. Thus the court in this case impliedly recognized prescriptive avigation easements in the specialized circumstance in which the claimant is a government entity.
In Petersen v. Port of Seattle (1980; 618 P.2d 67, 94 Wash.2d 479) the court expressly acknowledged that avigation easements can be acquired prescriptively, adding that avigation easements prescriptively acquired would not be compensable. For the latter the court relied on Aylmore v. Seattle (Wash. 1918; 171 P. 659, 100 Wash. 515): "When ... property is appropriated to the public use without complying [with the state constitution requiring just compensation for taking of property], the owner's right to compensation is not barred [by statutes of limitation], except by adverse possession for the prescriptive period. [Citation.]"
Here the court reiterated the law of avigation easement: "If plaintiffs show a governmental interference with their land and a resultant decline in its market value, they are entitled to the remedy of just compensation. [¶] The Port, however, may avoid the remedy, or a portion thereof, only if it affirmatively establishes its acquisition of a prescriptive avigation right in the Petersens' property.
As to the question whether Sea-Tac Airport had a prescriptive avigation easement over the plaintiff's property, the court noted that any use of property by someone other than the owner is presumed to be permissive unless the user can show otherwise. The court determined that the Port of Seattle had not prescriptively acquired an avigation easement over the Petersen's property because it had not demonstrated uninterrupted hostile (open and notorious) use for 10 years as required by law. It concluded that overflights were not hostile because (1) the Port had a policy of paying voluntary sellers of land around the airport the unimpacted value of the land, i.e., the value the property would have without the airport, and (2) the Port participated in a study of noise abatement measures.
Furthermore, the court stated: "even if the trial court had found some kind of pre-1964 prescriptive easement, it would not have been for the type and number of aircraft which used the airport after that date... [i.e., large jet aircraft]." Thus, a prescriptive avigation easement, like any easement, is valid for the specific circumstances in which the easement was acquired, and not for all time. "Enhanced airport activity following acquisition of an adverse right ..., which causes further damage, would, of course, be compensable."
Alaska 1980 -- In Classen v. State, Dept. of Highways (Alaska 1980; 621 P.2d 15) the owner of riverside land sued for compensation for the taking of his riparian rights when the state constructed a new bridge that prevented him from using his home on the river as the base for his floatplane taxi service. The court stated the plaintiff's claim amounted to one for damages for interference with a purported avigation easement. "As Classen does not claim to have been granted an easement, his only possible right to an easement would be by prescriptive use. However, an easement may not be acquired by prescription against the state. See AS 09.25.050; AS 38.95.010. ... We need not determine whether an airspace easement may be acquired by prescription against a party other than the state."
North Carolina 1982 -- In City of Statesville v. Credit and Loan Co. (N.C. Ct. App. 1982; 294 S.E.2d 405, 58 N.C.App. 727) the city-owner of an airport asserted it had prescriptively established an avigation easement over land adjoining the airport. The court noted that for any use to be adverse it must be on property over which another person has the right of lawful control. North Carolina has a statute (G.S. 63-13) that restricts the right of a landowner to control the airspace over his property. ("Flight over the lands and waters of this State is lawful unless at such a low altitude as to interfere with the then existing use to which the land or water, or the space over the land or water, is put by the owner, or unless so conducted as to be injurious to the health and happiness, or imminently dangerous to persons or property lawfully on the land or water beneath.") Thus, the court stated, the person claiming the easement has the burden of proving that planes overflew the servient estate in a manner proscribed by G.S. 63-13. Here, the court concluded, the airport operator had offered no specific facts to support it claim of an avigation easement by prescription.