Alevizos v. Metropolitan Airports Commission (continued)


In the leading state decision, Thornburg v. Port of Portland, 233 Or. 178, 376 P.2d 100 (1962), the Oregon constitutional provision was similar to that of the United States Constitution. The Oregon Supreme Court took note of the line of Federal cases requiring direct overflight, but explained that their rationale was circular because '(t)he majority (in Batten v. United States, Supra) said in effect that there is no taking because the damages are consequential, and the damages are consequential because there is no taking.' 233 Or. 187, 376 P.2d 104. The Oregon court in rejecting the majority opinion of the Batten court and following the dissent of Chief Judge Murrah, stated:

'If we accept, as we must upon established principles of the law of servitudes, the validity of the propositions that a noise can be a nuisance; that a nuisance can give rise to an easement; and that a noise coming straight down from above one's land can ripen into a taking if it is persistent enough and aggravated enough, then logically the same kind and degree of interference with the use and enjoyment of one's land can also be a taking even though the noise vector may come from some direction other than the perpendicular.' 233 Or. 192, 376 P.2d 106.
In another case, the Supreme Court of Washington rejected the Federal courts' rationale by saying:
'* * * We are unable to accept the premise that recovery for interference with the use of land should depend upon anything as irrelevant as whether the wing tip of the aircraft passes through some fraction of an inch of the airspace directly above the plaintiff's land.' Martin v. Port of Seattle, 64 Wash.2d 309, 316, 391 P.2d 540, 545 (1964).
Thus, it appears that the state and lower Federal courts have interpreted the Causby and Griggs decisions differently. This may be partly due to differing language of the state constitutions and the Federal Constitution, but as was pointed out in the Thornburg and Martin decisions, that difference has not been the determinative factor. The court in Thornburg held that a compensable taking occurs whenever governmental activity substantially interferes with the useful possession of property, either by repeated trespasses or by repeated nontrespassory invasions called nuisances. Reliance on a nuisance theory would clearly give relief to any property owner living near the flightpaths who could show interference with his rights sufficient to amount to a taking. The Washington court in Martin did not, however, definitely rely on a nuisance theory in allowing recovery to landowners irrespective of their location. Instead, that court cited as the better rule the dissent in Batten v. United States, Supra, where it was said:
'* * * (T)he constitutional test in each case is first, whether the asserted interest is one which the law will protect; if so, whether the interference is sufficiently direct, sufficiently peculiar, and of sufficient magnitude to cause us to conclude that fairness and justice, as between the State and the citizen, requires the burden imposed to be borne by the public and not by the individual alone.' 306 F.2d 587.
The significance of this test is that it does not give the jury the opportunity to balance the utility of the airport against the rights of the individual as would normally be done under a nuisance theory of relief. To undertake such a balancing process would in almost every instance spell defeat for the property owner. The Oregon Supreme Court acknowledged this weakness of its 1962 decision when it decided a case in 1966 arising out of the same facts as the earlier decision. Thornburg v. Port of Portland, 244 Or. 69, 415 P.2d 750 (1966). In the second opinion the Oregon court held that the jury should not be asked to balance the individual property owner's rights against that of the public good derived from the airport. Rather, the court held that the jury should be instructed to determine whether the property owner's right to the use and enjoyment of his land has been infringed in such a substantial way that a loss of market value results; if so, then a taking has occurred and the jury only need determine the amount of compensation. [FN 1]
[FN 1] The Washington court discussed the meaning of 'substantial' interference as follows:

'When this action is analyzed in this manner, the term 'substantial' is of dubious relevancy or utility. It connotes a balancing of the interests of the public in general against those of the individual. Inherent is the idea that the individual must bear a certain amount of inconvenience and loss of peace and quiet as the cost of living in a modern, progressing society. In eminent domain, and in inverse condemnation, such a balancing does not have to be accomplished as a distinct process, simply because the individual seeks no recovery for his individual suffering, damage, loss of quiet, or other disturbance. These elements of damage are cognizable in a tort action, and such a balancing would thus be necessary. But in inverse condemnation the measure of recovery is injury to market value, and that alone. 'Therefore, the balance of interest inherently struck in this type of action comes about in the following manner. If the individual is unusually sensitive, and sustains a greater injury than might be suffered by the general public from such interference, the public interest in maintaining the flights leaves him to one remedy -- to sell his property and move. This is no different than it would be had his land been condemned for forced sale to the state. But whichever way the state exacts such a 'sale,' it must pay the individual the amount he suffers in the diminishment of the value of his land, as reflected by the decrease in the amount he can receive in a sale to a willing buyer. Such lowering of market value reflects not the personal injury to the individual, but the lesser desirability of the land to the general public; I.e., to a ready, able, and willing buyer. When the land of an individual is diminished in value for the public benefit, then justice, and the constitution, require that the public pay.

'In the above manner, the interests which would otherwise be protected by the requirement of a 'substantial' injury are vindicated in two distinct ways. First, where there is only an injury of the extent such that it should be called or labeled 'incidental,' no measurable or provable decline in market value could be expected traceable to the flights. Recovery would not be forthcoming, but not because of some arbitrary rule set for convenience in administration of justice, but because of an inability to prove damages according to the common and well understood rules of suit. Second, and even more significant to the balancing problem, the smaller the provable decline in market value, the slighter the burden cast upon the public in paying for it. Surely the protection of the public interest does not entail the refusal of Small claims on the ground that the burden to the public is not great enough to pay for!' Martin v. Port of Seattle, 64 Wash.2d 309, 318, 391 P.2d 540, 546 (1964).

Unlike Washington and Oregon, under Minnesota law the question of whether or not a governmental agency has exceeded its authority to such a degree as to amount to a taking of private property is a question of law to be determined in the initial instance by the trial court. [FN 2] Only then is the jury asked to decide what amount of money will adequately compensate the property owner. See, Thomsen v. State, by Head, 284 Minn. 468, 474, 170 N.W.2d 575, 580 (1969), wherein this court stated:
'While ordinarily an adjoining property owner could not recover from the state solely because the value of his property is decreased by noise and light from traffic on a newly constructed highway, whether plaintiff's property has been so unfairly, directly, substantially, and peculiarly injured that it has been damaged in the constitutional sense so that the state should be compelled to condemn it is, given all of the undisputed but highly unusual facts of this case, a question of law which must be determined by the mandamus court in the first instance.'

[FN 2] Compare the procedure used by the Supreme Court of California in the case of Nestle v. City of Santa Monica, 6 Cal.3d 920, 101 Cal.Rptr. 568, 496 P.2d 480 (1972).

The trial court with some justification concluded from Thomsen that the property owners involved in this action could not recover because they failed to show damage that is direct, substantial, and peculiar to them in that it differs markedly from the damage suffered by the public at large. We think that the test in Thomsen should not have been so narrowly construed and that the language used needs some amplification.

What, then, are the guidelines to be followed by the trial court, on remand, in reaching its initial determination as mandated by Thomsen? It should be pointed out initially that the Minnesota Constitution requires compensation where private property is taken, destroyed, or damaged. Any statement of what constitutes 'property' can only be nebulous at best. Not every economic, social, or other interest or advantage is a property right, the taking of which must be compensated. As the United States Supreme Court pointed out in United States v. Willow River Power Co., 324 U.S. 499, 502, 65 S.Ct. 761, 764, 89 L.Ed. 1101, 1107 (1945), only those economic advantages which have the law back of them are property rights. Thus, to begin by arguing that compensation must be paid because a property right has been taken really merely raises the question that must be ultimately answered. Property is more than the physical thing -- it involves the group of rights inhering in a citizen's relation to the physical thing. Traditionally, that group of rights has included the rights to possess, use, and dispose of property. [FN 3] See, United States v. General Motors Corp., 323 U.S. 373, 378, 65 S.Ct. 357, 359, 89 L.Ed. 311, 318 (1945). Petitioners in this case do not allege that they have been dispossessed by MAC's operations. They allege that their right to use the property without undue interference has been infringed and the decrease in market value due to defendant's operations has deprived them of their right to dispose of their property for a fair price. The right to use one's property in relative freedom from irritating noise and interference can hardly be disputed in view of present-day living conditions where a great deal of governmental and private effort is spent on planning and zoning our cities in an effort to improve the quality of life. These societal efforts to protect certain land uses from irritating interferences, then, indicate that the use and enjoyment of one's property without unduly irritating noise, vibrations, and gaseous fumes have arisen to the status of a property right for which a property owner may demand compensation when it is denied to him by governmental activity.

[FN 3] The Ohio Supreme Court summarized these ideas quite well when it stated: 'In some of the early cases in this country, the courts, adhering to the conception of property as the thing owned, construed the taking alluded to in state constitutions to be a 'taking altogether,' appropriation and dispossession of the owner, which deprived him of the corpus of the property, and compensation was limited accordingly. The broader view, which now obtains generally, conceives property to be the interest of the owner in the thing owned, and the ownership to afford the owner the rights of use, exclusion and disposition. Under this broad construction there need not be a physical taking of the property or even dispossession; any substantial interferences with the elemental rights growing out of ownership of private property is considered a taking.' Smith v. Erie R. Co., 134 Ohio St. 135, 142, 16 N.E.2d 310, 313 (1938).
This does not mean that every noise or interference with a property owner's use and enjoyment thereof constitutes a taking. Every landowner must continue to endure that level of inconvenience, discomfort, and loss of peace and quiet which can be reasonably anticipated by any average member of a vibrant and progressive society. But when those interferences reach the point where they cause a measurable decrease in property market value, it is reasonable to assume that, considering the permanency of the air flights, a property right has been, if not 'taken or destroyed,' at the very least 'damaged,' for which our constitution requires that compensation be paid. This will not give relief to the unusually sensitive person because the measure of recovery is decrease in market value of the property due to its decreased desirability in the general market place rather than the amount of discomfort to the individual.

We recognize the most property in a metropolitan area would have a higher value if it were completely free of any noise, smog, or other undesirable features, provided the same conveniences were available. We are sure that if the metropolitan area had no airports, freeways, buses, trucks, trains, ambulances, and many other conveniences that are sources of noise, fumes, and whatnot, that property values would be substantially reduced. Property owners cannot -- and we are sure they do not expect to -- have the advantages created by conveniences and yet be paid for the undesirable effects created by the same conveniences unless those effects adversely affect their property so directly and so substantially that it is manifestly unfair to require them to sustain a measurable loss in market value which the property-owning public in general does not suffer. Thus, not every inconvenience, annoyance, or loss of peace and quiet caused by air flights will give rise to a cause of action in inverse condemnation against an airport operator.

The test, then, that we prescribe will give relief to any property owner who can show a direct and substantial invasion of his property rights of such a magnitude he is deprived of the practical enjoyment of the property and that such invasion results in a definite and measurable diminution of the market value of the property. [FN 4]

[FN 4] We doubt that using either a trespass theory or nuisance theory or a new version of either as a base or foundation would clarify the issues. Without using the term 'nuisance,' Restatement, Torts, s 822, describes the liability for a nontrespassory invasion of property in these words:

'The actor is liable in an action for damages for a non-trespassory invasion of another's interest in the private use and enenjoyment of land if,
'(a) the other has property rights and privileges in respect to the use or enjoyment interfered with; and
'(b) the invasion is substantial; and
'(c) the actor's conduct is a legal cause of the invasion; and
'(d) the invasion is either
(i) intentional and unreasonable; or
(ii) unintentional and otherwise actionable under the rules governing liability for negligent, reckless or ultrahazardous conduct.'

To justify an award of damages it must be proved that these invasions of property rights are not of an occasional nature, but are repeated and aggravated, and that there is a reasonable probability that they will be continued in the future.

We recognize that with the test we have prescribed there may well be a dispute as to the property, if any, that is to be included in the inverse condemnation proceedings. Nonetheless, the court should make that determination initially based upon our interpretation of Thomsen and the market-value test here prescribed. [FN 5]

[FN 5] A majority of the court is of the opinion that in appropriate cases the trial court may consider among other factors, the following:

(1) The highest and best use to which the land may be put, as well as its present use, recognizing differences in the impact of sound and air pollution on areas suitable or zoned for residential, commercial, industrial, or recreational purposes.
(2) The topography of the land, including natural or artificial sound barriers.
(3) The proximity to runways.
(4) The lateral and vertical distances from regular flight paths.
(5) The frequency of takeoffs and landings.
(6) The types of airplanes using the facilities.
(7) The flight patterns, holding patterns, and glide angles regularly followed.
(8) The location of the land relative to prevailing winds.
(9) Whether the duration of the easement contemplated is temporary or permanent.

MAC will be entitled to jury trial on fact questions in any case by appealing from the commissioner's award. If the court determines any petitioner is not entitled to inverse condemnation, a jury trial shall be essential as to any fact questions. Thus, as to both MAC and petitioners, the Thomsen mandate for a jury trial on fact issues in a mandamus action will be followed.

The trial court also dismissed this action on the ground that MAC was not the proper defendant in that the airport was built largely with Federal funds in conformance with Federal specifications, and aircraft operations are largely controlled by Federal agencies. The United States Supreme Court dealt a similar argument a decisively fatal blow when it said:

'* * * We think, however, that respondent, which was the promoter, owner, and lessor of the airport, was in these circumstances the one who took the air easement in the constitutional sense. Respondent decided, subject to the approval of the C.A.A., where the airport would be built, what runways it would need, their direction and length, and what land and navigation easements would be needed. The Federal Government takes nothing; it is the local authority which decides to build an airport Vel non, and where it is to be located. We see no difference between its responsibility for the air easements necessary for operation of the airport and its responsibility for the land on which the runways were built.' Griggs v. Allegheny County, 369 U.S. 84, 89, 82 S.Ct. 531, 534, 7 L.Ed.2d 585, 589.
We believe the rationale of the position cited above is equally applicable in this case. MAC was created for the express purpose of promoting and developing airports around the metropolitan area. Having accomplished this task, it would be incongruous for this court to hold that MAC cannot be held responsible for the adverse effects of its activities.

Since this case was tried in the lower court and after it was first argued here, the United States Supreme Court decided Burbank v. Lockheed Air Terminal, Inc., 411 U.S. 624, 93 S.Ct. 1854, 36 L.Ed.2d 547 (1973). Based on that court's holding that congress has preempted state and local control over aircraft noise, a city ordinance prohibiting jet aircraft from taking off between 11 p.m. and 7 a.m. was held invalid. This decision does not reach the main issue before us. There is nothing in that decision indicating that Causby and Griggs were overruled. Mr. Justice Douglas wrote the majority opinion in Burbank and did not mention Causby or Griggs. Dissenting to the denial of certiorari in Chongris v. Corrigan, 409 U.S. 919, 93 S.Ct. 218, 34 L.Ed.2d 181 (1972), Mr. Justice Douglas, who authored Causby and Griggs, cited both cases with approval in these words:

'In 1946, this Court articulated the standard to be applied in testing flight patterns over private property against the Just Compensation Clause of the Fifth Amendment. United States v. Causby, 328 U.S. 256, 66 S.Ct. 1062, 90 L.Ed. 1206. We held that 'the flight of airplanes, which skim the surface but do not touch it, is as much an appropriation of the use of the land as a more conventional entry upon it.' We noted that the important factor is whether the intrustion impinges on 'the owner's full enjoyment of the property and . . . his exploitation of it.' Id., at 264-265, 66 S.Ct. at 1062. And, in 1962, we reiterated that standard. Griggs v. Allegheny County, 369 U.S. 84, 82 S.Ct. 531, 7 L.Ed.2d 585.'
In addition, the decision in Burbank was narrowed and its thrust somewhat blunted by the footnote contained in the majority opinion:
'The letter from the Secretary of Transportation also expressed the view that 'the proposed legislation will not affect the rights of a State or local public agency, As the proprietor of an airport, from issuing regulations or establishing requirements as to the permissible level of noise which can be created by aircraft using the airport. Airport owners Acting as proprietors can presently deny the use of their airports on the basis of noise considerations so long as such exclusion is nondiscriminatory.' (Emphasis added.) This portion as well was quoted with approval in the Senate Report. Ibid.

'Appellants and the Solicitor General submit that this indicates that a municipality with jurisdiction over an airport has the power to impose a curfew on the airport, notwithstanding federal responsibility in the area. But, we are concerned here not with an ordinance imposed by the City of Burbank as 'proprietor' of the airport, but with the exercise of police power. While the Hollywood-Burbank Airport may be the only major airport which is privately owned, many airports are owned by one municipality yet physically located in another. For example, the principal airport serving Cincinnati is located in Kentucky. Thus, authority that a municipality may have as a landlord is not necessarily congruent with its police power. We do not consider here what limits if any apply to a municipality as a proprietor.' 411 U.S. 624, 635 note 14, 93 S.Ct. 1854, 1861, 36 L.Ed.2d 547, 555.

Burbank is not in conflict with Causby, Griggs, or the decision to be rendered in this case. We are not asserting our police power nor are we interfering with flight schedules in enforcing a mandate under the Federal Constitution, which requires at a minimum inverse condemnation for overflights if there is a taking, and the mandate of our State Constitution, which has broader language. We are requiring MAC to condemn avigational easements, as did Causby and Griggs.

MAC denies that mandamus is a proper remedy in this action because the statute governing MAC gives it no clear legal duty to institute such proceedings, equitable considerations favor MAC, and no prior demand was made on MAC. The trial court, based on its interpretation of the governing statutes, agreed with this contention.

MAC is a public corporation under Minn.St. 360.101 to 360.144 and as such is invested with limited powers and responsibilities. As such, it has no inherent powers, but rather it only has 'such powers as are expressly conferred by statute or are implied as necessary in aid of those powers which are expressly conferred.' Village of Brooklyn Center v. Rippen, 255 Minn. 334, 336, 96 N.W.2d 585, 587 (1959). See, also, Kronschnabel v. City of St. Paul, 272 Minn. 256, 259, 137 N.W.2d 200, 202 (1965); and Mangold Midwest Co. v. Village of Richfield, 274 Minn. 347, 357, 143 N.W.2d 813, 820 (1966). Since a writ of mandamus may be issued only 'to compel the performance of an act which the law specially enjoins as a duty resulting from an office, trust, or station' (Minn.St. 586.01), we must look at the statutory and constitutional provisions governing MAC's actions.

MAC is given specific authority to acquire all necessary right, title, or interest in real or personal property for the development and maintenance of airports by Minn.St. 360.107, subd. 2. This power of acquisition is limited by the following language of that subdivision: 'Title to any such property acquired by condemnation or purchase shall be in fee simple, absolute, unqualified in any way * * *.' Petitioners in this case seek to compel MAC to acquire easements over their properties by condemnation, but this statutory language standing alone appears to deny MAC the authority to acquire such rights.

Petitioners, however, contend that the language of Minn.St. 360.074 is an exception to the limitation pointed out above because it gives 'municipalities,' including MAC (Minn.St. 360.061), the power 'to acquire such easements through or other interest in air spaces over land * * * as are necessary to effectuate the purposes of Laws 1945, Chapter 303.' This argument is not convincing in view of the fact that s 360.062 clearly states that the purpose of L.1945, c. 303, is to provide protection to the public from dangers and hazards of airport operation. It mentions nothing about discomfort and loss of property value due to noise and air pollution, as petitioners here allege they have suffered. The only other authority given to MAC to acquire less than fee simple interest is found in s 360.107, subds. 9 and 10, but those subdivisions clearly limit such acquisitions to situations where 'necessary to insure safe approaches to the landing areas' and 'to place, operate, and maintain suitable markings * * * for the safe operation of aircraft * * *.' Thus, it seems quite clear that MAC lacks specific statutory authority to acquire the easements involved in this case. This position is given further credence by the fact that the legislature recently provided MAC with precisely the powers found lacking here, but only in connection with a new major airport. L.1969, c. 1111, s 3, coded as Minn.St. 360.76.

Petitioners nonetheless argue with considerable persuasion that MAC was granted general powers that are broad enough to accord just compensation to property owners burdened by its activity. They point to the following language in Minn.St. 360.107, subd. 1, granting to MAC --

'* * * all the powers as a body corporate necessary and convenient to accomplish the objects and perform the duties prescribed by Laws 1943, Chapter 500, including those hereinafter specified, which shall not be construed as a limitation upon the general or any other specific powers hereby conferred.'
Their contention based on this language is that the general powers are not controlled by the specific powers granted to MAC and that under Minn.St. 360.107, subd. 16, it had general powers to accomplish its purposes and fulfill its duties. Subd. 16 states:
'It (a metropolitan airports commission) may generally carry on the business of acquiring, establishing, developing, extending, maintaining, operating, and managing airports, with all powers incident thereto.'


Continued in Part Three