Branning v. United States (concluded)


As the Court of Appeals for the District of Columbia Circuit has more recently pointed out in another context, although the navigable airspace has been declared to be in the public domain, "'[r]egardless of any congressional limitations, the land owner, as an incident to his ownership, has a claim to the superjacent airspace' to the extent that a reasonable use of his land involves such space." Palisades Citizens Association, Inc. v. C. A. B., 420 F.2d 188, 192 (D.C.Cir.1969) (footnote omitted and emphasis supplied).

Thus it is clear that the Government's liability for a taking is not precluded merely because the flights of Government aircraft are in what Congress has declared to be navigable airspace and subject to its regulation. [FN 15]

[FN 15] By further analogy, since owners of property adjacent to the navigable waters of the United States must not be made to suffer uncompensated damage such as that resulting from an abnormal wake caused by vessels plying the navigable waters, owners of property subjacent to the navigable airspace of the United States should not be made to suffer the damages caused by abnormal aircraft noise without just compensation especially where the flights by Government-owned aircraft directly and immediately interfere with the use and enjoyment of the land.
In virtually all of the cases in which recovery has been awarded for the overflights of aircraft, the value of the land in question was diminished, not by the mere presence of the aircraft in the superjacent airspace, but by the attendant noise. Under the "great weight" of Federal authority, noise alone, without an actual physical invasion of the superjacent airspace, is merely consequential damage within the rule of Richards v. Washington Terminal Co., 233 U.S. 546, 34 S.Ct. 654, 58 L.Ed. 1088 (1914),[FN16] and thus not compensable under the fifth amendment. Batten v. United States, 306 F.2d 580 (10th Cir. 1962), cert. denied, 371 U.S. 955, 83 S.Ct. 506, 9 L.Ed.2d 502 (1963); Avery v. United States, 165 Ct.Cl. 357, 330 F.2d 640 (1964); Town of East Haven v. Eastern Airlines, Inc., 331 F.Supp. 16 (D.Conn.1971), aff'd on other grounds, 470 F.2d 148 (2d Cir. 1972).
[FN 16] Although this case is said to have been decided on a theory that a physical invasion is required for a taking, the compensable damage that was found to exist was not accompanied by a physical invasion, but the damage resulted from an overt act of defendant which caused the smoke and noise to be directed over plaintiff's property. Furthermore, there have been many cases in the Supreme Court, this court, and other Federal courts where the fifth amendment taking of land was found to have been effected without an actual physical invasion of the surface of that land. See, e.g., Pennsylvania Coal Co. v. Mahon, 260 U.S. 393, 43 S.Ct. 158, 67 L.Ed. 322 (1922) (a taking of the subjacent property); Drakes Bay Land Co. v. United States, 191 Ct.Cl. 389, 424 F.2d 574 (1970) (isolation of and denial of access to plaintiff's property).
On the other hand, many State courts have allowed recovery for a taking based solely upon the impact of noise from aircraft flights without regard to whether there was also a physical invasion of the superjacent airspace. E.g., Thornburg v. Port of Portland, 233 Or. 178, 376 P.2d 100 (1962); Henthorn v. Oklahoma City, 453 P.2d 1013 (Okl.1969).[FN 17]
[FN 17] These cases were decided under the same legal framework of the present case. Other states have constitutions which grant broader relief to property owners than the Federal constitution; they provide right to compensation when property is taken or damaged. See, e.g., Martin v. Port of Seattle, 64 Wash.2d 309, 391 P.2d 540 (1964). These other cases will not be further considered herein.
The Thornburg case involved flights along two different flight paths. Planes flying in the first path flew close to the plaintiffs' land but not directly over it; the noise created by the planes was equivalent to a nuisance. As to these flights the court reasoned:
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.
(376 P.2d at 106.) There was a dissent in Thornburg which agreed with the majority opinion in Batten v. United States, supra.

As to the second flight path, however, the court was unanimous. The second flight path took planes directly over the plaintiff's property at low altitudes, but in excess of 500 feet. The court, in reversing the trial court, held that these flights should have also been considered in determining if there had been a taking.

Whatever virtue the establishment of a 500-foot floor under the cruising flight of aircraft may have as a matter of public safety, there can be only one sound reason to make it a rule of the law of real property. That reason ought to be the knowledge * * * that flights above 500 feet do not disturb the ordinary, reasonable landowner. (376 P.2d at 109-110; emphasis supplied.)
The dissenting Justices, while rejecting the majority's position that an adjacent noise nuisance alone can constitute a taking of property, agreed with the majority that if the flights were in the superjacent airspace, even if above 500 feet, such flights could constitute a taking. It was felt by the minority that the Causby rule [FN 18] is a "proper rule to balance public and private interests arising from the abolishment of the common-law rule that ownership in land extended upward to the periphery of the universe * * *," 376 P.2d at 111 (dissenting opinion), but that it does not preclude the possibility of a taking where the overflights are above the safe altitude of flight, namely, 500 feet AGL, if the evidence shows that, by reason of noise and vibration alone, there is serious interference in the owner's use and enjoyment of the property.
[FN 18] As set forth on pp. 96-97, supra.
Although the bare presence of noise, without penetration of the superjacent airspace, cannot itself amount to a taking, an increase in noise alone, without any change in the nature of the physical invasion, has been held to constitute a further taking.

In Avery v. United States, supra, the court held that the introduction of a larger, heavier, noisier aircraft can constitute a fifth amendment taking of an additional easement even though the noisier aircraft do not violate the boundaries of an earlier easement. The earlier easement in Avery had granted the Government the right to fly aircraft over the plaintiffs' land at altitudes as low as 29 feet AGL. The easement was not limited on its face to any particular aircraft, yet the court found a further taking where the plaintiffs established additional loss due to the increase in the noise. Thus it is clear that noise and its impact are generally of primary importance in determining whether there has been a taking by aircraft overflights.

In Lacey v. United States, supra, the property over which defendant's aircraft flew was a large tract of agricultural land located in an uncongested rural area used principally for the grazing of cattle. Such property would be "clearly unacceptable" for such use if located within an AICUZ "Clear Zone," or a "CNR 3" Zone as defined in the AICUZ studies received in evidence in the present case. The evidence in Lacey did not include an AICUZ study or classification [FN 19], but it did establish that the prescribed minimum altitude of aircraft flying over plaintiff's property in conducting FMLP operations was 450 feet AGL during the period from 1958 to 1973 with single-engine (A4J and F-9) aircraft, and from 1972 to 1975 with twin-engine (T2C) aircraft.[FN 20] The trial judge concluded that the taking in that case first occurred "not later than 1960" and the action was, therefore, barred under the 6-year statute of limitations (28 U.S.C. s 2501). It was further found, as a fact, that at no time after 1960 did defendant operate its aircraft at altitudes lower than 450 feet AGL nor did it employ any appreciably noisier aircraft in its operations at the base. Thus, there was no "further" taking within the 6 years prior to filing the action due to increased noise or frequency of operations.

[FN 19] It does not appear from the opinion or findings of fact in Lacey that an AICUZ study was ever made in connection with the Naval Auxiliary Landing Field in that case.

[FN 20] The noise level of the A4J aircraft (introduced in 1969) was 133 decibels at 50 feet AGL and 110 decibels at 1,000 feet AGL, whereas the comparable values for the F-9 (flown from 1958 to 1969) were 131 decibels at 500 feet and 108 decibels at 1,000 feet. Thus, there was no "appreciable difference" in noise level between that created by the A4J and the F-9. The noise level of the T2C aircraft (introduced in 1972) was even lower, the values 127 decibels at 500 feet AGL and 104 decibels at 1,000 feet.

The trial judge, in turning to the question of ownership of the Lacey property in and prior to the calendar year 1960, found that plaintiffs did not acquire the property until 1971, at the earliest. Thus, the taking had already occurred before plaintiffs acquired the property. Accordingly, plaintiffs in that case would not have been entitled to recover even if the statute of limitations had not been a bar.

The real source of interference with plaintiffs' use of their property in Lacey was not the altitude of the flights but the noise which "made it impossible or difficult to use the telephone in the residence, made conversation on the property impossible or difficult, greatly interfered with television reception in the residence, and interfered substantially with ranch operations (the noise from the aircraft drowned out attempts by the ranch operator to call cattle for feeding operations)." 219 Ct.Cl. at 558, 595 F.2d at 618. There was no evidence whatever that any damage, interference, or inconvenience was caused solely because the altitude of the flights was as low as 450 feet above ground level. It was the noise created by the overflights which interfered with full use of the property. The opinion concludes that it was as a result of the noise that "an avigation easement" had already been taken by the operation of noisy jet aircraft over plaintiffs' property.

The facts in the present case are distinguishable from the facts in Lacey in two material respects. At NALF-Orange Grove, training operations were conducted with aircraft which generated approximately the same noise (127 to 133 decibels at 50 feet altitude) throughout the whole period under consideration, even though the T2C was a twin-engine (2,950 pounds thrust per engine or 5,900 pounds of total thrust) and the F-9 and A4J were single-engine (7,250 pounds and 8,500 pounds thrust, respectively) aircraft. Also, the total number of operations of aircraft of these types did not increase appreciably during the 6-year period next preceding the filing of the petition. In the present case the twin-engine (33,000 total pounds of thrust) F-4 aircraft replaced the substantially less noisy single-engine (7,800 pounds thrust) A-4 aircraft, and the total number of FMLP operations increased substantially after plaintiff purchased the subject property in November 1973 (and less than 6 years prior to the filing date of the present petition).

The clear implication in Lacey was that even if overflights of the F-9, A4J and T2C aircraft at less than 500 feet occurred more than 6 years prior to filing the petition, plaintiffs would have prevailed if "appreciably noisier" aircraft were introduced for the first time within the 6-year period prior to filing the petition. It follows, therefore, that the introduction of the full Marine Air Group of noisier F-4 aircraft into MCAS-Beaufort, after November 1973, created a new cause of action in the present case even though fewer and less noisy overflights were conducted at 600 feet AGL prior to plaintiff's acquisition of the property, regardless of whether the earlier flights had constituted a partial taking.

The question thus raised is whether the 500-foot altitude is so critical a measure of the avigational servitude that liability can be avoided simply by flying noisier aircraft at an altitude of 501 feet. Minimum safe altitude and minimum noise levels are concerned with two different things.[FN 21] While safety may be measured in terms of altitude, a reasonable noise level cannot be measured solely in terms of altitude.[FN 22]

[FN 21] It is noted that the Federal Aviation Administration has promulgated regulations regarding noise standards for aircraft which are wholly apart from flight regulations. See Title 14, C.F.R., Part 36 (1980).

[FN 22] Gliders, for example, would not be a source of noise impact over a residential area, even if flown at altitudes of less than 500 feet AGL over such an area. However, flight of gliders over property at any altitude might constitute a substantial accident risk. Conversely, loud, annoying aircraft such as helicopters, repeatedly passing over a residential area at an altitude above 500 feet AGL, might well be a source of considerable noise impact and yet not create a substantial accident risk at any given point below.

The present case is a case, as the court foresaw in Aaron v. United States, 160 Ct.Cl. at 301, 311 F.2d at 801, in which "the unavoidable damage (reduction of the highest and best use) to a person's property occasioned by (the noise created during) travel in the navigable air space (is) so severe as to amount to a practical destruction of it." This is a case of first impression in which the court may consider the altitude of the flights over the property, but must give primary consideration to the effect of aircraft noise where the Government itself has adopted and published standards of compatability of use of the subjacent property. Since the subjacent property owner has suffered a diminution of the value of the property in this case, there has been a taking of an easement over and through the airspace superjacent the property of the plaintiff. It is abundantly clear that under the law established by Causby, Griggs, and Aaron a taking has occurred in this case.


Identity of Plaintiff

The caption in this case designates plaintiff as "Cloide C. Branning, d/b/a Pleasant Point Plantation, A Partnership." The opening paragraph of the petition repeats, verbatim, the wording of the caption. Although paragraph 2 states that petitioner "resided on the premises located in Beaufort County, State of South Carolina," and paragraph 8 alleges that petitioner has been deprived of "his" free and unmolested use of "his" property, the record clearly establishes that Cloide C. Branning, an individual, did not own the property in suit at the time the petition was filed. Therefore, to do justice as between Branning, individually, and the Pleasant Point Plantation partnership, the petition must be construed as having been filed in the name of the true owner, Pleasant Point Plantation, a partnership.

The domicile (residence) of the partnership is alleged to be in South Carolina and the address of plaintiff (petitioner) is given at the end of the petition as "Cloide C. Branning, Pleasant Point Plantation, Star Route 5, Beaufort, South Carolina 29002." Thus the partnership is deemed to have been organized and existing under the laws of the State of South Carolina.

When David M. Pendley and H. Jack Pendley, Jr., sold their respective interests in the Pleasant Point Plantation partnership to Cloide C. Branning, the partnership was technically dissolved. However, the partnership had outstanding liabilities which were incurred before the two general partners sold their interests to Branning. Branning, therefore, became the sole surviving partner for the purposes of winding up the affairs of the partnership.

Notwithstanding the sale of the Pendleys' interests in the partnership to Branning, record title to the property in suit was, at the time of filing the petition, and still was at the time of trial, in the name of Pleasant Point Plantation, a partnership. There is no evidence of record to show that Branning, individually, ever took title to the property from the partnership or any of the partners. Title went from Pleasant Point Plantation, Inc. (a South Carolina corporation) to Branning and the Pendleys, as individuals (jointly and severally) by deed executed on November 10, 1973. Thereafter, by deed executed November 28, 1973, Branning and the Pendleys, for a nominal consideration and in further consideration of "the formation of Pleasant Point Plantation, a Partnership," conveyed the property in suit to "Pleasant Point Plantation, a Partnership, Its Successors and Assigns."

Under the circumstances, merger of all interest in the assets of the partnership in one individual dissolved the partnership de jure, but the partnership continued de facto for the purpose of winding up the affairs of the partnership, including the prosecution of this action on the alleged claim of the partnership as holder of record title to the property in suit.

Since the value of the property right taken is to be determined as of the date of taking, determination of both the date of taking and value of the property right taken as of that date are reserved for further proceedings under Rule 131(c).


CONCLUSION OF LAW

For the foregoing reasons, the court concludes that a taking has occurred. The case is remanded to the trial division under Rule 131(c) for further proceedings. Such further proceedings will determine the date of the taking, the amount of recovery, and who will share in said recovery.