COUNSEL:

Francis H. Clabaugh, Beaufort, S. C., for plaintiff; Barry L. Johnson, Beaufort, S. C., atty. of record. Dowling, Sanders, Dukes, Novit & Svalina, P. A., Beaufort, S. C., of counsel.

Joseph R. Bankoff, Atlanta, Ga., atty. of record, for Morgan Guaranty Trust Co. of New York. King & Spalding, Atlanta, Ga., of counsel.

George H. O'Kelley, Beaufort, S. C., atty. of record, for Bankers Trust of South Carolina; J. B. Kinghorn and A. M. Kinghorn, d/b/a Kinghorn Building Supply Co.; Southern Turf Grass Seeds, Inc.; and Uniroyal, Inc.

John W. Minor, Hilton Head Island, S. C., atty. of record, for Citizens and Southern Financial Corp. Adams, Adams, Brennan, Gardner & Hughes, Hilton Head Island, S. C., of counsel.

Daniel R. McLeod, Columbia, S. C., atty. of record, for South Carolina Tax Commission.

James E. Brookshire, Columbia, S. C., with whom was Asst. Atty. Gen. Carol E. Dinkins, Washington, D. C., for defendant. Peter D. Coppelman, Walter J. Postula, and Joseph J. McGovern, Dept. of Justice; Veronica Meade and Edward Passarelli, Dept. of the Navy; and Captain John L. Wittenborn, United States Air Force, Washington, D. C., of counsel.

Before NICHOLS, KASHIWA and SMITH, Judges.

PER CURIAM:

This case is before the court on exceptions to the report of Trial Judge Francis C. Browne.

After consideration of the briefs and oral argument of the parties, we adopt the report, as modified, as an opinion of this court. Because we find it unnecessary to reach the issue of whether there was a "sonic" easement, we delete that portion of the report discussing the issue. Additionally, we delete that portion of the report dealing with rights of third-party plaintiffs; thus, who shares in the award shall be determined at the time of the final judgment.

The novelty of this decision is in its holding that defendant's use of airspace at altitudes above 500 feet, and independent of landing and takeoff, may be a taking of land beneath if the use is peculiarly burdensome. A vital factor of this case is that defendant devised an exercise to prepare trainees for future landings on aircraft carriers, in which heavy jet aircraft followed one another almost nose to tail in an unvarying loop over plaintiff's land. Trainees were required to hold their planes, preparatory for landing on the supposititious carrier deck, with noses up and tails down, with near maximum power (and noise) associated with low speed. Defendant could have performed this exercise elsewhere but selected airspace over plaintiff's land for it because alternative locations were deemed even more objectionable. Thus, plaintiff was consciously singled out or selected to bear a burden which defendant also consciously elected not to impose on others, even others otherwise similarly situated. This is a classic statement of a taking situation. Whether use of airspace above 500 feet for noisy air navigation of a more conventional variety can be held a taking is an issue that can be and is reserved for the case that presents it. In this case our taking holding turns on the peculiar facts the trial judge has found.

The trial judge's report, as modified, follows. [FN 1]

[FN 1] The findings of fact have been submitted to the parties and with the exception of the "Ultimate Finding and Conclusion" are adopted by the court. We do not reprint the findings of fact here because the facts necessary to resolve this case are set forth in the report.

[FN *] The opinion and conclusion of law are submitted in accordance with Rule 134(h).

This is an action for recovery of just compensation for the alleged taking of an easement over plaintiff's property by "inverse condemnation" as a consequence of the operation of defendant's aircraft over that property. [FN 1]

[FN 1] Such "taking" has been referred to in reported cases variously as an "avigation easement" (by analogy to the sovereign's right of navigational servitude in navigable waters of the sovereignty) and as an "easement of flight" (by analogy to easements taken by the sovereign in the airspace over land for public purposes).

[FN 2] In addition to Morgan, other third-party plaintiffs (creditors of plaintiff) have appeared, but Morgan is the only third-party plaintiff who actively participated in the trial of the case or has presented post-trial submissions as a third-party plaintiff.

The Pleasant Point Plantation partnership (hereinafter referred to as "plaintiff"), is a general partnership which was formed in 1973 in Beaufort, South Carolina, by Cloide C. Branning, H. Jack Pendley, Jr., and David M. Pendley. Plaintiff acquired a tract of approximately 525 acres on Lady's (or Ladies) Island, Beaufort County, South Carolina, known as "Pleasant Point Plantation" (hereinafter referred to as the "property") from Pleasant Point Plantation, Inc., a South Carolina corporation, the stock of which had been owned by Branning prior to sale of the property to plaintiff.

The United States Marine Corps Air Station, Beaufort (hereinafter referred to as "MCAS-Beaufort") is located northwest of the city of Beaufort; it is just across Brickyard Creek, due west of plaintiff's property. Defendant established the facility as a naval air station in 1943 and it served as a training base for the Navy until 1946, when it was disestablished. Ten years later (1956), it was recommissioned as a Marine Corps Auxiliary Air Station and, in 1961, was redesignated as a Marine Corps Air Station. The basic mission of the station was, and still is, to provide facilities for Marine Corps aircraft operations and training.

One type of training conducted on and around the station consists of practice landings and takeoffs designed to simulate aircraft carrier takeoffs and landings. One type of operation is referred to as "field mirror landing practice" (FMLP). In the course of such operation, the prescribed flight pattern requires the trainees to take off from the runway on the station and then fly defendant's aircraft directly over plaintiff's property in a "racetrack pattern" at an altitude of 600 feet above ground level (AGL) and return to the runway. The pattern is repeated by each aircraft several times, the training exercise being conducted squadron-by-squadron (and virtually nose-to-tail at 25 to 30-second intervals) over a period of several days during each month in which training is conducted. Originally such training employed single-engine (A-4) and vertical takeoff (AV-8 Harrier) aircraft, but later employed twin-engine (F-4) aircraft.[FN 3]

[FN 3] FMLP operations are required before a pilot can be deemed "combat ready," and thus qualified to fly carrier operations. The operations must be practiced both during the daytime and at night. Since a pilot is only deemed to be qualified for 3 months after flying FMLPs, an F-4 squadron will usually fly FMLPs just prior to being assigned to duty on a carrier. When FMLP operations are being conducted there can be as many as six aircraft in the air at once (up to four aircraft if the practice is at night). The planes make about 10 practice landings and loops and then must refuel. While one group of planes is refueling, another is in the air. The aircraft are spaced about 30 seconds apart. When flying FMLPs, the pilots keep the wing flaps down during the entire operation (in what is known as a "dirty" configuration) at 80-85 percent of full power. Since flying in a "dirty" configuration requires that more thrust be employed than would otherwise be needed, the noise is consequently much greater than if the plane was flying a normal pattern. Thus, during the weeks when FMLPs are being conducted, F-4 aircraft pass directly over the plaintiff's property, with over 80 percent of full throttle applied, every 30 seconds almost continuously throughout the morning, afternoon, and sometimes at night.

This pattern is referred to in Lacey v. United States, 219 Ct.Cl. 551, 595 F.2d 614 (1979), as the "field carrier landing practice" pattern. The only difference between the pattern flown in Lacey (at the Naval Auxiliary Landing Field-Orange Grove, Texas) and that flown at MCAS- Beaufort is that the prescribed altitude for the pattern at NALF-Orange Grove was 450 feet AGL (above ground level), whereas the prescribed altitude over plaintiff's property in the present case was 600 feet AGL.

Plaintiff asserts that the noise created by the frequence and altitude at which the defendant's F-4 aircraft fly over the subject property on Lady's Island, particularly in the FMLP pattern, has reduced or destroyed the value of the property for its highest and best use, namely, for single family residential use and development as provided in plaintiff's master plan.

In support of its position plaintiff relies upon "Air Installation Compatability Use Zone" (hereinafter referred to as "AICUZ") studies and charts prepared on behalf of, adopted, published, and implemented by defendant. These studies are relied upon to establish that property located in the "CNR 3" zone, as plotted in the studies and charts, has been rendered "clearly unacceptable" [FN 4] for low, medium, or high density residential use as a consequence of defendant's aircraft overflights. Plaintiff further relies upon defendant's admission in its answer that " * * * CNR Zone 3 is regarded as unsuitable for residential use or development."

[FN 4] "Clearly unacceptable: The noise exposure at the site is so severe that construction costs to make indoor environment acceptable for performance of activities would be prohibitive. (Residential areas: The outdoor environment would be intolerable for normal residential use)." (Emphasis supplied.)

[FN 5] "Normally unacceptable : The noise exposure is significantly more severe so that unusual and costly building constructions are necessary to insure adequate performance of activities."

Defendant also contends that as long as none of the flights were below 500 feet AGL over plaintiff's property, publication of defendant's AICUZ studies and charts cannot constitute a taking of plaintiff's property under the fifth amendment to the Constitution of the United States either by itself or coupled with actual flights at or above 500 feet AGL over plaintiff's property.

MCAS-Beaufort [FN6] is a military installation of the United States of America and is part of a complex which includes the Marine Corps Recruit Depot at nearby Parris Island and the U. S. Naval Hospital at nearby Port Royal. All are located in Beaufort County, near the City of Beaufort, South Carolina.

[FN 6] Beaufort is pronounced "Bu'fert" in South Carolina, whereas the name is pronounced "Bo'fort" in North Carolina where a city of the same name is located.

Beaufort County's economy is dominated by two major factors its geographic and climatic conditions and, secondly, by the presence of the military. More than 50 percent of the labor force in the county is military. Indeed, historically the area has played a significant role in maritime operations along the southeast Atlantic coast. Port Royal Island was claimed by Spanish explorers in 1521, but the entire area was claimed by the British in 1663. Beaufort was chartered as a town in 1710, and has been designated as a national historical site. However, as was the case with any other areas of the South, Beaufort County suffered from the consequences of the Reconstruction and the Great Depression of the 1930's. Even the World War II era of the 1940's did little to help the economy in the area.

During the 1950-60 decade, however, the population of Beaufort County increased by 63.7 percent, largely due to immigration of military-oriented people from other counties in the region. As a consequence, the area became more urbanized and more subject to the problems which result from urbanization. One of such problems was land use and the impact of various land uses on the environment.

In 1942 (during the early years of World War II), the Beaufort County Board of Directors reached an agreement with the Civil Aeronautics Administration to establish an airport at the present site of MCAS-Beaufort. The site was acquired by defendant and designated for use as a major naval air station; operational facilities were completed in 1943. It was used from 1943 to 1946 as a Navy training base and was disestablished in 1946.

For 10 years the site was not used by defendant. However, in 1956 defendant, having a need for a jet aviation base in the southern Atlantic coastal area, recommissioned the station as a Marine Corps Auxiliary Air Station. Five years later, in 1961, the station was redesignated as a Marine Corps Air Station.

The evidence in this case does not disclose what types of jet aircraft operated from MCAS-Beaufort in the 1960's, but a compilation of data for the period 1963 to 1970 shows the number of aircraft operations under IFR (Instrument Flight Rules) and VFR (Visual Flight Rules), quarter-by-quarter for each year during that period. The original records from which that compilation was made are not in evidence, but the compilation is deemed to be a business (and historical) record and is acceptable as the best evidence available for the purpose of determining the number of such operations during that period.

A record maintained as an "Air Traffic Activity Report" shows the same type of information on a semi-annual basis from July 1, 1970 to December 31, 1977. This form, however, also adds the number of radar approaches and divides the operations into categories of military and civilian aircraft; it further distinguishes the military aircraft operations between Navy/Marine Corps and Other Military.

The Navy Facilities Engineering Command (Southern Division) of the Department of the Navy, pursuant to a directive from the Department of the Navy, contracted with Tracor, Inc. (hereinafter referred to as "Tracor"), of Austin, Texas, to conduct a study of aircraft and related noise in the vicinity of MCAS-Beaufort at that time. A report was submitted to the Commanding Officer of that command on May 14, 1973. The report was based on measurement of aircraft noises both on and off the station and on information and records provided by station personnel. The data and measurements were used to prepare "Composite Noise Rating" (CNR) contours to serve as a guide to compatible land uses and for evaluation of existing and projected noise impact on the community in and around MCAS-Beaufort, including the City of Beaufort and Lady's Island. The computations were based on the numbers and kinds of aircraft in use at the station at the time and the anticipated operations for the ensuing year.

Since the plaintiff did not acquire the property in suit until after the Tracor study was completed, consideration must be given not only to the altitude at which defendant's aircraft have flown over the property, but also the type of aircraft and the frequency or timing of the flights both before and after plaintiff acquired the property in order to determine whether or not the taking of an easement occurred while plaintiff was the owner of the subject property.