SYLLABUS BY THE COURT:

1. An avigation easement in the airspace used by aircraft over lands adjacent to an airport cannot be acquired by prescription.

2. "The trial court, in appraising the sufficiency of a complaint on a Rule 12(b)(6) motion, should not dismiss the complaint unless it appears beyond doubt that the plaintiff can prove no set of facts in support of his claim which would entitle him to relief." Syl., Flowers v. City of Morgantown, W.Va., 272 S.E.2d 663 (1980).

3. As a general rule, a fair test as to whether a particular use of real property constitutes a nuisance is the reasonableness or unreasonableness of the use of the property in relation to the particular locality involved, and ordinarily such a test to determine the existence of a nuisance raises a question of fact.

COUNSEL:

Lively, Light & Taylor and W. T. Lively, Jr., Charleston, for plaintiffs Sticklen and Dyke.

Jackson, Kelly, Holt & O'Farrell, Thomas E. Potter, John M. Slack, III and James R. Snyder, Charleston, for plaintiff Central W. Va. Regional Airport Authority, etc.

Weaver, Hayes & Moredock and Thomas W. Hayes, Love, Wise, Robinson & Woodroe, John O. Kizer, Mario J. Palumbo and Kurt E. Entsminger, Charleston, for defendants.

McHUGH, Justice:

This action is before this Court upon certified questions from the Circuit Court of Kanawha County, West Virginia, and the August 27, 1981, orders of that court dismissing the complaints and amended complaints of the plaintiffs. The certified questions were docketed by this Court by order entered September 2, 1981. [FN 1] Accordingly, this Court has before it all matters of record and the briefs and argument of counsel.

[FN 1] See W.Va. Supreme Court R.App.P. 13 and W.Va.Code, 58-5-2 [1967]. W.Va.Code, 58-5-2 [1967], provides, in part, as follows:

Any question arising upon the sufficiency of a summons or return of service, upon a challenge of the sufficiency of a pleading or the venue of the circuit court, upon the sufficiency of a motion for summary judgment where such motion is denied, or a motion for judgment on the pleadings, upon the jurisdiction of the circuit court of a person or subject matter, or upon failure to join an indispensable party, in any case within the appellate jurisdiction of the supreme court of appeals, may, in the discretion of the circuit court in which it arises, and shall, on the joint application of the parties to the suit, in beneficial interest, be certified by it to the supreme court of appeals for its decision, and further proceedings in the case stayed until such question shall have been decided and the decision thereof certified back.

In Syl. pt. 1, Neal v. Huntington Publishing Company, W.Va., 223 S.E.2d 792 [1976], this Court held that "[a]n order sustaining a motion to dismiss which dismisses the complaint but does not dismiss the action is reviewable upon certificate authorized by W.Va.Code, 58-5-2, as amended."

The defendants in this action are the Board of Education of the County of Kanawha and its individual members. Robert Kittle, Superintendent of Kanawha County Schools, was also joined as a defendant.

On March 13, 1981, a civil action, No. CA-81-1050, was filed in the circuit court against the defendants by John M. Sticklen and William Dyke. That action (hereinafter referred to as the "Sticklen action") was brought by Sticklen and Dyke individually and as representatives of a class of parents of children subject to attendance at the proposed consolidated high school. The Sticklen action sought to temporarily and permanently enjoin the defendants from constructing the consolidated high school at the Vaughan site.

The Central West Virginia Regional Airport Authority (hereinafter "Authority") filed a motion to intervene in the Sticklen action, No. CA-81-1050, which motion was granted by the circuit court. Moreover, the Authority filed a separate action, No. CA-81-2693, against the defendants. As did the individual plaintiffs in the Sticklen action, the Authority sought to temporarily and permanently enjoin the defendants from constructing the consolidated high school upon the Vaughan site. By order the circuit court consolidated the Sticklen action, No. CA-81-1050, and the action instituted by the Authority, No. CA-81-2693. By another order, however, the circuit court dismissed the Sticklen action insofar as it constituted a class action.

Pursuant to W.Va.R.Civ.P. 12(b)(6), the defendants moved to dismiss for failure to state a claim upon which relief could be granted. The circuit court granted the defendants' motions and dismissed the complaints in the two actions, Nos. CA-81-1050 and CA-81-2693. In dismissing the complaints against the defendants, the circuit court, upon its own motion, certified certain questions of law to this Court.

In September, 1979, a Citizens Advisory Committee recommended to the Board of Education of the County of Kanawha that two Charleston schools known as Charleston High School and Stonewall Jackson High School be consolidated into a new school and that Stonewall Jackson High School be renovated and used as a junior high school. Electing to proceed with consolidation, the Board created an Advisory Site Selection Committee. The Site Selection Committee considered eighteen various locations for the new consolidated school and ultimately concluded that the Vaughan site and the Newhouse Branch site were favorable.

The Site Selection Committee recommended the Newhouse Branch site to the Board. The committee suggested, however, that it would reconvene to discuss the Vaughan site if the Newhouse Branch recommendation resulted in difficulty.

Subsequently, the Board decided to construct the consolidated high school at the Vaughan site. Specifically, on May 22, 1980, the Board, after providing the public with an opportunity for discussion, selected the Vaughan site for the new school. [FN 2]

[FN 2] The minutes of the May 22, 1980, meeting of the Board of Education of the County of Kanawha provide, in part, as follows:

Mr. F. Douglas Stump moved: That the Board consolidate and proceed with the consolidation of the high schools of Charleston/Stonewall; proceed with the planning and construction at the Vaughan site with the front side of that Vaughan property which is closest to Greenbrier Street; and that the cost of the property not exceed the present allocation in our budget. That the school and the road be let for bidding construction at the same time and that the school be open with no more than 1200 students and that 7300 square feet be cut from the non-academic area of that plan. At this point, Mrs. Alice W. Moore, President, indicated that one hour had been previously allowed for discussion (6:30-7:30 p. m. in a Special Informal meeting with the citizens, administrative staff, and members of the Board of Education). She then asked for discussion from the floor, for which there was a total allotment of five minutes. The following persons from the floor voiced their opposition to the Vaughan property:

Mr. Jack Sticklen, Stonewall Jackson High School Parent
Mr. Douglas E. Hunt, President, Stonewall Jackson PAC
(Mr. Hunt distributed materials citing figures comparing the cost of the Vaughan site with the Cabell site)
Mr. Jim Monroe, Charleston City Councilman
Mr. John Swartz, Air Traffic Controller, Federal Aviation Agency
Motion seconded by Mr. Harry A. Wallace III and carried 4:0, with Dr. Paul A. Leary abstaining.

As a result of the proximity of the proposed school site to the airport and the alleged problems caused thereby, the Board of Members of the Airport Authority on June 2, 1980, adopted a resolution opposing the Vaughan site as the location for the school. In a newspaper article appearing in the Charleston Daily Mail on June 13, 1980, defendant Kittle, Superintendent of Kanawha County Schools, was quoted as stating that he would seek alterations in any aircraft or helicopter flight patterns over the proposed school at the Vaughan site.

On November 14, 1980, a meeting was held before the West Virginia Board of Education wherein a delegation including representatives of the Airport Authority appeared in opposition to the Vaughan site. Nevertheless, the West Virginia Board of Education approved the Vaughan site for the location of the new consolidated high school.

Work began at the Vaughan site prior to the commencement of proceedings before this Court.

The questions certified to this Court, and the rulings of the circuit court thereon, are set forth in certificates signed by the circuit judge on August 27, 1981. The questions certified with respect to the action of the Authority, No. CA-81-2693, are as follows:

1. Whether a [sic] avigation easement can be acquired over the land of an adjacent land owner [sic] by virtue of aircraft overflights that result from the use of the adjacent regional airport? If such an avigation easement can be acquired, is it acquired by the Regional Airport Authority or by the owners of the aircraft making such overflights?

2. In the absence of a statute regulating the same, does the establishment of an airport limit the right of an adjacent land owner [sic] to make any desired, proper, beneficial use of his land, not amounting to a nuisance, notwithstanding the fact that such use may interfere with the adjoining airport?

3. Does the construction of a high school upon land adjacent to an airport constitute a nuisance enjoinable by a court upon application of the Airport Authority?

4. Whether the possible loss of federal grants to the Regional Airport Authority because of the permitted incompatible use (construction of the new high school) of adjacent land is a sufficient basis to allow a court, upon application of the Regional Airport Authority, to enjoin such construction?

5. Whether the plan of private developers, if any, to develop the property surrounding the proposed site of the new high school, and also adjacent to the airport facility, that could precipitate civil and/or administrative action against the Regional Airport Authority, provide a sufficient basis to allow a court, upon application of the Regional Airport Authority, to enjoin the construction of the new school and thereby chill the development of surrounding property?

6. Whether the inaction or failure of the elected members of the county board of education to repudiate the actions of the Superintendent of Schools in constructing the new school at a location on the proposed site that differs from the location upon said site voted upon and adopted by a resolution of said Board constitutes an implied ratification of the change in location.

The questions certified to this Court with respect to the Sticklen action, No. CA-81-1050, are as follows:

1. Whether a county board of education, by virtue of West Virginia Code s. 18-5-9 and s. 18-5-13, has the exclusive authority to establish schools and to select and to acquire sites therefore, if there is no fraud, collusion, or palpable abuse of discretion, notwithstanding the allegations of the complaint and first amended and supplemental complaint?

2. Whether the rule that county boards of education are bound by the remedies and procedures they properly establish to conduct their affairs requires a county board of education to follow or to consider the recommendation of an advisory site selection committee appointed by said Board where the appointment of such committee is not mandated by any statute, rule, regulation, or adopted policy of said Board?

3. Whether the allegations of the complaint are sufficient to warrant the court to interfere with the exclusive authority of a county board of education to establish schools and to select and acquire sites therefor in the absence of specific averments of the circumstances constituting fraud, collusion, or palpable abuse of discretion?

4. Whether the inaction or failure of the elected members of the county board of education to repudiate the actions of the School Superintendent in constructing the new school at a location on the proposed site that differs from the location upon the precise site voted upon and adopted by a resolution of said Board constitute an implied ratification of the change in location?

Several of the above certified questions are interrelated and will be consolidated for review in this opinion.

With respect to questions one and two certified to this Court in the action filed by the Airport Authority, the Circuit Court of Kanawha County held that an avigation easement in the airspace used by aircraft over land adjacent to an airport cannot be acquired by prescription. Furthermore, the circuit court held that an owner of property adjacent to an airport may make any desired, proper and beneficial use of his land not amounting to a nuisance, notwithstanding that such desired, proper and beneficial use may interfere with the adjoining airport. Specifically, the circuit court held that the right of the Authority to use the airspace over the Vaughan property was not superior to the right of the defendants to construct a high school upon that site.

An avigation easement is an easement of right to navigation in airspace over designated land. An avigation or flight easement is somewhat different from a clearance or obstruction easement. United States v. Brondum, 272 F.2d 642 (5th Cir. 1959); 4A Words and Phrases, "Avigation Easement" (1969).

In United States v. Brondum, supra, the United States sought the right to cut trees and natural growth to a prescribed height and to remove man-made obstructions above a prescribed height. The property in question was near an air force base. The court in United States v. Brondum held that the government was seeking a clearance or obstruction easement rather than an avigation or flight easement. [FN3]

[FN 3] In United States v. Brondum, supra, the Court stated as follows:

An avigation easement may or may not contain provisions dealing with obstructions, but, unlike a clearance easement, in express terms it permits free flights over the land in question. It provides not just for flights in the air as a public highway -- in that sense no easement would be necessary; it provides for flights that may be so low and so frequent as to amount to a taking of the property....

272 F.2d at 645.

It should be noted that no clearance or obstruction easement is involved in the proceedings before this Court. There are no allegations in the record to the effect that natural or man-made obstructions at the Vaughan site may interfere with the flight of aircraft to or from the Kanawha Airport. Rather, the Authority in its amended complaint asserts generally that it has a "prescriptive easement in the airspace" over the Vaughan site. [FN 4]

[FN 4] Paragraph seventeen of the amended complaint of the Authority states as follows:

The Airport Authority has, by its hostile, actual, open and exclusive use of the airspace overlying the Vaughan site, under claim of title, since 1946, obtained a prescriptive easement in the airspace overlying such site, by virtue of W.Va.Code Ann. s. 55-2-1, which easement constitutes a property right capable of being protected by injunctive relief.

W.Va.Code, 55-2-1 [1923], provides that "[n]o person shall make an entry on, or bring an action to recover, any land, but within ten years next after the time at which the right to make such entry or to bring such action shall have first accrued to himself or to some person through whom he claims."

[FN 5] The easement question before this Court is narrow in that the Authority asserts that it acquired an avigation easement by prescription. Therefore, this Court need not be concerned, for example, with avigation easements acquired by written contract. This Court need only decide whether an avigation easement may be acquired by prescription.

Classen's use of the river is analogous to an airport's need for a "clearance" or "obstruction" easement to ensure that takeoffs and landings can be made safely. 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. * * * Thus, like the superior court, we conclude that the state's actions did not deprive Classen of a compensable property right. We need not determine whether an airspace easement may be acquired by prescription against a party other than the state.

In Highline School District, a school district brought an inverse condemnation action alleging damages caused by aircraft noise emanating from an airport. The Supreme Court of Washington held in Highline School District that the trespass and nuisance claims of the school district were properly dismissed. Furthermore, the Court recognized that "... acquisition by prescription is the result of the running of the statute of limitations." 548 P.2d at 1088. The Court stated that the statute of limitations applied to the action of the school district. However, the Court in Highline School District further held that a material fact existed as to whether the school district acquired a new cause of action for aircraft noise within the period not barred by the statute of limitations.

This Court is of the opinion that neither Classen nor Highline School District support the position of the Authority concerning avigation easements by prescription. Assuming that the court in Classen was dealing with a possible avigation easement rather than a clearance or obstruction easement, that court expressly concluded that it need not determine whether such an easement could be acquired from a party other than the state. As against the state, the court in Classen held that no such easement could be acquired by prescription. Moreover, the issue in Highline School District was noise rather than the specific flight paths of aircraft, and furthermore, any prescriptive acquisition of the airport was subject to subsequent claims of the school district based upon new causes of action.

The Highline School District case was cited in Peterson v. Port of Seattle, 94 Wash.2d 479, 618 P.2d 67 (1980), where property owners in an inverse condemnation proceeding sought just compensation in regard to diminished value of property as a result of a municipal corporation's operation of an airport. The Court in Petersen held that the landowners had a right to compensation. The Court recognized the existence of prescriptive avigation easements but concluded, however, that no such easement had been shown under the facts in the case. Specifically, the Court found the airport's use of the airspace nonhostile, thus precluding a prescriptive easement. Furthermore, the Court in Petersen stated that even if a prescriptive avigation easement had existed at one time over the property in question, such an easement would not have been for the type and number of aircraft subsequently flying over the property. [FN 6]

[FN 6] The Court in Petersen stated as follows:

Ever increasing usage of Sea-Tac airport by jet aircraft began in the 1960's and continues to this day. Year by year, from 1964 to 1974 when the instant action was filed, larger and noisier aircraft and more of them utilized the airport. The Port's own records demonstrates this. Thus, 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 and, consequently, it would not have decreased the Petersens' damage in 1974.

618 P.2d at 71.

Accordingly, under the foregoing circumstances, the overflight of aircraft during the claimed prescriptive period manifestly did not interfere substantially with plaintiff's actual use and enjoyment of their land since there was no such use and enjoyment. Therefore, the overflights did not invade plaintiffs' rights in their land. This being so, no prescriptive easement to overfly plaintiffs' land was acquired.

[FN 7] In Drennen v. County of Ventura, supra, the Court stated in footnote two, in part, as follows: "We see no reason why an avigation easement may not be acquired by prescription in this state. * * * We do not decide the point however."

In Shipp v. Louisville and Jefferson County Air Board, 431 S.W.2d 867 (Ky.1968) cert. denied, 393 U.S. 1088, 89 S.Ct. 880, 21 L.Ed.2d 782 (1969), a county airport authority alleged that it had a prescriptive right to the public, unobstructed use of airspace over the defendants' property for the purpose of the landing and taking off of aircraft. The circuit court required the defendant to allow the airport authority to enter upon the defendants' property to top obstructing trees. In Shipp, the Court of Appeals of Kentucky reversed and held that, inasmuch as the right of the landowners to maintain and enjoy their trees was acquired before the public right of transit through navigable airspace was fixed by law, the landowners' right to their trees was protected by constitutional law and could not be taken except by condemnation.

To summarize the above cases and other cases examined by this Court, it is evident that courts are reluctant to support the assertion of the Authority that a prescriptive easement in airspace can be obtained over property by continuous overflights. Various practical problems would make such a prescriptive easement difficult to define. As indicated in Petersen, supra, if such an easement were established, changes in the type and number of overflying aircraft could modify or cancel the easement. Moreover, other questions would arise such as whether more than one flight pattern over a particular tract of land would result in more than one prescriptive avigation easement, or by what manner could such an easement be established if more than one tract of land were involved.

Upon all the above, therefore, this Court is of the opinion that an avigation easement in the airspace used by aircraft over lands adjacent to an airport cannot be acquired by prescription.