Thornburg v. Port of Portland (continued)


The plaintiffs concede that single-instance torts, as torts, are not compensable. Inverse condemnation, however, provides the remedy where an injunction would not be in the public interest, and where the continued interference amounts to a taking for which the constitution demands a remedy. In summary, a taking occurs whenever government acts in such a way as substantially to deprive an owner of the useful possession of that which he owns, either by repeated trespasses or by repeated nontrespassory invasions called 'nuisance'. If reparations are to be denied, they should be denied for reasons of policy which are themselves strong enough to counterbalance the constitutional demand that reparations be paid. None has been pointed out to us in this case.

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.

If a landowner has a right to be free from unreasonable interference caused by noise, as we hold that he has, then when does the noise burden become so unreasonable that the government must pay for the privilege of being permitted to continue to make the noise? Logically, the answer has to be given by the trier of fact (subject to the usual exercise of the proper function of the court in screening the evidence). See Restatement, Torts, s. 826, Comment d. It may be contended that the jury is an imperfect instrument in these cases, but such an argument raises constitutional and legislative questions that are not now before us. See Holden v. Pioneer Broadcasting Co., 228 Or. 405, 365 P.2d 845.

While it is no doubt anticipatory to advert to the problem of instructing the jury in cases of this kind, it is relevant to point out that the nuisance theory provides the jury a useful method for balancing the gravity of the harm to the plaintiff against the social utility of the airport's conduct, in a way that would not be available if the trespass theory were used. In Restatement, Torts, ss. 826-831, we find principles for balancing gravity against utility which can be adapted to jury instruction so that the question of reasonableness need not be any more mysterious to the jury in this type of case than it is in an automobile accident case. The balancing of private rights and public necessity is not a novel problem. [FN 10]

[FN 10] See Madison v. Copper Co. [Madison v. Ducktown Sulphur, Copper & Iron Co., 113 Tenn. 331, 83 S.W. 658], supra, where damages were allowed and the injunction was refused. And see the related case of State of Georgia v. Tennessee Copper Co., 206 U.S. 230, 27 S.Ct. 618, 51 L.Ed. 1038, 11 Ann.Cas. 488 (1907); 237 U.S. 474, 35 S.Ct. 631, 59 L.Ed. 1054 (1915); 240 U.S. 650, 36 S.Ct. 465, 60 L.Ed. 846 (1916). Similar considerations are discussed in Booth-Kelly Lumber Co. v. City of Eugene, 67 Or. 381, 136 P. 29 (1913) and York et ux. v. Stallings et al., 217 Or. 13, 341 P.2d 529 (1959).
Whether expressed in so many words or not, the principle found in the Causby, Griggs, and Ackerman cases is that when the government conducts an activity upon its own land which, after balancing the question of reasonableness, is sufficiently disturbing to the use and enjoyment of neighboring lands to amount to a taking thereof, then the public, and not the subservient landowner, should bear the cost of such public benefit. Under this principle, it was error to exclude the plaintiffs' proffered testimony concerning the jet flights near his land. The real question was not one of perpendicular extension of surface boundaries into the airspace, but a question of reasonableness based upon nuisance theories. [FN 11] In effect, the inquiry should have been whether the government had undertaken a course of conduct on its own land which, in simple fairness to its neighbors, required it to obtain more land so that the substantial burdens of the activity would fall upon public land, rather than upon that of involuntary contributors who happen to lie in the path of progress.
[FN 11] See Kellogg v. Mertens, (La.App.) 30 So.2d 777 (1947), and cases discussed in Amphitheaters, Inc. v. Portland Meadows, 184 Or. 336, 198 P.2d 847, 5 A.L.R.2d 690 (1948), where the plaintiffs sought damages at law for a nuisance from excessive lights. And see York et ux. v. Stallings et al., supra note 10 (injunction denied); and Note, Airplane Noise: Problem in Tort Law and Federalism, 74 Harv.L.Rev. 1581 (1961). Cf. Antonik v. Chamberlain, 81 Ohio App. 465, 475, 477, 78 N.E.2d 752 (1947).
As noted above, this court has expressed a policy against allowing compensation in several situations where there was no actual physical injury to the real property. The cases used terms such as 'consequential damages', [FN 12] or 'damages which do not amount to a 'taking", [FN 13] or 'damnum absque injuria.' [FN 14] Such expressions describe conclusions that the court reached when it had decided that the facts involved did not measure up to the standard necessary for a 'taking'. Such injuries were then held to be noncompensable as a matter of law, under the policy against allowing compensation for mere 'demages'. Such decisions, which were no doubt right in cases of single-instance wrongs, prove too much when applied to continuing and substantial interference with the use and enjoyment of property. Ordinarily, in a case of a continuing interference, whether it is substantial enough to constitute a taking will be for the jury to determine.
[FN 12] Brand v. Multnomah County, 38 Or. at 92, 60 P. 390, 62 P. 209, 50 L.R.A. 389.

[FN 13] Moeller et ux. v. Multnomah County, 218 Or. supra, at 427, 345 P.2d, at 820.

[FN 14] Barrett et al. v. Union Bridge Co., (on merits) 117 Or. 220, 243 P. 93, 45 A.L.R. 521, (on petition for rehearing) 117 Or. 566, 578, 245 P. 308, 45 A.L.R. 527 (1926), quoting with approval Less v. City of Butte, 28 Mont. 27, 31, 72 P. 140, 61 L.R.A. 601, 98 Am.St.Rep. 545 (1903).

Another assignment of error in the case at bar challenges the failure of the court to give a requested instruction with respect to low-level flights directly over plaintiffs' land. [FN 15] The court instead instructed the jury that only such flights as were conducted over the land at altitudes of less than 500 feet could constitute a taking. [FN 16]
[FN 15] Requested:

'If you find from the evidence in this case that there have been flights of airplanes over plaintiffs' property originating from and going into the defendant airport during the period complained of in plaintiffs' second amended complaint, and if you further find that such flights were at such a low altitude and at such a frequency over plaintiffs' property as to be a direct and an immediate interference with the use and enjoyment thereof, then I instruct you that said interference would constitute a partial taking of the plaintiffs' property under the Constitution of the United States and the State of Oregon.'

FN16. Given:

'* * * I instruct you that under the law, if you find that the aircraft which may have flown over the plaintiffs' property during the period complained of were flown at heights of five hundred feet or greater above the property, such flights are within the navigable airspace and cannot be made the basis of any recovery for the plaintiffs here and your verdict must be for the defendant.'

The challenged instruction requires us to decide when, if ever, an airport can be liable for taking property because it permits flights to and from it over private land, but within 'navigable airspace'. On this point, there is no doubt that a taking of private property can occur even though the flights are within navigable airspace as defined by law if the flights are below 500 feet. Matson v. United States, 171 F.Supp. 283, 145 Ct.Cl. 225, (1959), held that the plaintiff should recover for a taking, even though the court recognized that the taking was accomplished in what today would be navigable airspace. [FN 17] Griggs v. Allegheny County, supra, is a square holding that taking of private property can be accomplished by planes taking off and landing within navigable airspace. 369 U.S. 84, 82 S.Ct. 531, 533, 7 L.Ed.2d 585, 588. There is, therefore, no merit in the defense argument that all flights within the navigable airspace are automatically free from liability. [FN 18] The debate centers on the legal effect of the 500-foot rule.
[FN 17] In Matson v. United States, supra, the court said:

'* * * We do not think, however, that the change in the definition of navigable airspace affects plaintiffs' causes of action. The Government's easement over plaintiffs' property may be perpetual. Although today navigable airspace with its public rights of transit * * * includes the glide, its use by the United States or other aeroplane operators at heights below the minimum altitudes of flight except where necessary for take-off or landing may require compensation. * * *' 171 F.Supp. at 285.

[FN 18] Since navigable airspace now includes both the cruising altitudes and the space needed for the glide, it is meaningless to say that flights in the navigable airspace cannot constitute a servitude on land. It is necessary to know how the flights affect the land. See Griggs v. Allegheny County, supra.

The Port's argument that flights above 500 feet are immune from private litigation seems to be based on two grounds:

(1) As a result of the legislation by Congress in denominating navigable airspace and declaring a public right of transit through it, the landowner cannot claim there has been a 'trespass' through a column of air which he does not own. [FN19] Ownership of the navigable airspace is said to be in the public. [FN 20]

[FN 19] Title 49 U.S.C. (1952):

s. 176(a). 'The United States of America is declared to possess and exercise complate and exclusive national sovereignty in the airspace above the United States * * *.'

s. 403. 'There is recognized and declared to exist in behalf of any citizen of the United States a public right of freedom of transit in air commerce through the navigable airspace of the United States.'

s. 180. 'As used in sections 171, 174-177, and 179-184 of this title, the term 'navigable airspace' means airspace above the minimum safe altitudes of flight prescribed by the Civil Aeronautics Authority, and such navigable airspace shall be subject to a public right of freedom of interstate and foreign air navigation in conformity with the requirements of said sections.'

[FN 20] We need not here consider whether such ownership of the airspace is in the United States or in the individual states. See 57 Mich.L.Rev. 1214, 1223 (1959).

(2) As a result of the same legislation, the landowner is in a position analogous to that of a person abutting a highway or a railroad right-of-way who must be content with the incidental inconveniences that are unavoidably attendant upon those operations. [FN 21]
[FN 21] Brand v. Multnomah County, supra note 7; Richards v. Washington Terminal Co., 233 U.S. 546, 34 S.Ct. 654, 58 L.Ed. 1088, supra; and Matson v. United States, 171 F.Supp. 283, 145 Ct.Cl. 225, supra.
The instruction given below forces a choice between consistency, which is on the side of the plaintiffs, and public convenience, which is on the side of the Port. Logically, it makes no difference to a plaintiff disturbed in the use of his property whether the disturbing flights pass 501 feet or 499 feet above his land. If he is in fact ousted from the legitimate enjoyment of his land, it is to him an academic matter that the planes which have ousted him did not fly below 500 feet. [FN 22] The rule adopted by the majority of the state and federal courts is, then, an arbitrary one. The barring of actions when the flights are above 500 feet is also difficult to reconcile with the theory that recovery should be based upon nuisance concepts rather than upon the trespass theory which we have rejected. Whether a plaintiff is entitled to recover should depend upon the fact of a taking, and not upon an arbitrary rule. The ultimate question is whether there was a sufficient interference with the landowner's use and enjoyment to be a taking.
[FN 22] See 14 J. Air L. & Com. 112, 116, discussing a decision to the effect that '[t]he height at which an airplane operator may pass above the surface without trespassing is a question depending for solution on the facts in the particular case, and this question is unaffected by the regulations promulgated by the Department of Commerce, under the Air Commerce Act of 1926 * * *.' Cory v. Physical Culture Hotel, 14 F.Supp. 977, 982 (W.D.N.Y.1936). In any event, unless experts, equipped with the necessary instruments, have measured each flight, it is highly unlikely that trustworthy evidence would be produced to prove the exact altitude of flights over private land.
It is sterile formality to say that the government takes an easement in private property when it repeatedly sends aircraft directly over the land at altitudes so low as to render the land unusable by its owner, but does not take an easement when it sends aircraft a few feet to the right or left of the perpendicular boundaries (thereby rendering the same land equally unusable). The line on the ground which marks the landowner's right to deflect surface invaders has no particular relevance when the invasion is a noise nuisance. Neither is a 500-foot ceiling relevant, desirable though it may be as an administrative device. If the interest to be protected is worth protecting at all, it is necessary to employ a system of rules that will meet the problem. 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, derived from factual data, that flights above 500 feet do not disturb the ordinary, reasonable landowner. This may be true. We do not know that it is. It may well be that only the most sensitive are offended by such flights. It may equally be true that some of the aircraft now in use are so disturbing to those on the ground that 500 feet of air will not provide protection to the landowner below. We are not justified in adopting the 500-foot rule as a rule of property law in cases of this character merely because to do so might make our work easier. The trier of fact in each case is best able to work out the solution. The difficulty was foreseen in the Causby case. [FN 23] Congress may very properly declare certain airspace to be in the public domain for navigational purposes, but it does not necessarily follow that rights of navigation may be exercised unreasonably. The power to invade the rights of servient landowners no doubt reposes in the federal government, but there is a point beyond which such power may not be exercised without compensation. United States v. Causby, supra. The same limitation applies to lesser governmental agencies. [FN 24] See Griggs v. Allegheny County, supra.
[FN 23] 'The airplane is part of the modern environment of life, and the inconveniences which it causes are normally not compensable under the Fifth Amendment. The airspace, apart from the immediate reaches above the land, is part of the public domain. We need not determine at this time what those precise limits are. Flights over private land are not a taking, unless they are so low and so frequent as to be a direct and immediate interference with the enjoyment and use of the land. We need not speculate on that phase of the present case. For the findings of the Court of Claims plainly established that there was a diminution in value of the property and that the frequent, low-level flights were the direct and immediate cause. We agree with the Court of Claims that a servitude has been imposed upon the land.' United States v. Causby, supra 328 U.S. at 266, 267, 66 S.Ct. at 1068.

[FN 24] The question of who, under the current Federal definition of navigable airspace, ought to be liable for the taking is discussed in Comment, 57 Mich.L.Rev. 1214, 1225 (1959), and the possibility is suggested that suits could be brought against the United States. See also Harvey, Landowners' Rights in the Air Age: The Airport Dilemma, 56 Mich.L.Rev. 1313, 1326 (1958).

Unfortunately for trial judges trying to formulate instructions for juries, the cases have not dealt with the instructions to be given to the laymen who must work out the answer under Oregon law. In submitting to a jury a case such as we have before us, the trial court is confronted with the need to verbalize rules as abstract as any to be found in the law, but, as we have said before, [FN 25] the ingenuity of trial judges in formulating meaningful instructions to juries is usually equal to the task.
[FN 25] Williamson v. McKenna, 223 Or. 366, 401, 354 P.2d 56 (1960).
The idea that must be expressed to the jury is that before the plaintiff may recover for a taking of his property he must show by the necessary proof that the activities of the government are unreasonably interfering with his use of his property, and in so substantial a way as to deprive him of the practical enjoyment of his land. This loss must then be translated factually by the jury into a reduction in the market value of the land.

We cannot say, as a matter of law, that jet or rocket or some other kind of noise within 500 feet, or within some other number of feet, of private land might not in a particular case cause a taking for public use. The question in each case must be decided by an appropriate tribunal. Our present constitution places this duty upon the jury. If the jury proves unequal to the task, that, as noted above, is a legislative problem. If the case should arise when it is claimed that insufficient evidence was placed before the jury to support a verdict, then will be time enough to pass upon the amount of evidence necessary to get to the jury. In the case at bar, much of the evidence was excluded. As we have noted, this exclusion was error.

Other assignments of error challenge various rulings which were made in a logical and consistent pattern which followed from the able trial court's view of the case as one controlled essentially by trespass concepts. On another trial, these rulings are not likely to be repeated, and need not detain us further now.

Reversed and remanded.


PERRY, Justice (dissenting).

I am unable to agree with the majority's views of the law of eminent domain. It should be noted that to reach a reversal of the judgment of the trial court, the majority rely upon the law of nuisance. The majority seem to admit that this has never been the law of this state, but argue that it should be. So far as I have been able to ascertain, no jurisdiction whose constitution reads as does ours has ever sustained such a proposition.

In substance, plaintiffs' assignments of error are, (1) the trial court refused to submit to the jury as evidence of a taking, evidence that airplanes did travel directly over the property owned by plaintiffs at a height of more than 500 feet, and (2) the trial court refused to submit to the jury evidence of airplane flights which do not travel over the plaintiffs' property but over property adjacent thereto. It is these adjacent flights which, if considered, must rest solely upon the law of nuisance.

Considering first the issue of flights above the 500-feet level, I am of the opinion that such flights may be considered in determining whether there has been a 'taking' in the constitutional sense.

In the case of United States v. Causby, 328 U.S. 256, 66 S.Ct. 1062, 90 L.Ed. 1206, the rule of law was established that ownership in land could not be considered in this space age as extending upward 'to the periphery of the universe' and that therefore Congress had the authority to declare that all navigable airspace above our land was a part of the public domain.

Congress had defined navigable airspace as that airspace above the minimum safe altitude of flight as prescribed by the Civil Aeronautics Authority. As applied to the matter before us, the minimum airspace established for safety is 500 feet. At first blush it would appear that all airspace above the 500-foot level of the plaintiffs' property, being within the public domain, plaintiffs would have no proprietary interest therein which could be taken, but I do not believe this conclusion can be sustained.

Subsequent to the determination of United States v. Causby, supra, the Civil Aeronautics Authority included in its determination of airspace the glide path and the take-off path to and from the 500-foot level to the airport. Griggs v. Allegheny County, 369 U.S. 84, 82 S.Ct. 531, 7 L.Ed.2d 585. The Supreme Court of the United States, in considering the effect of this additional regulation within the scope of the national airport plan, provided in 49 U.S.C.A. 1101 et seq., stated that private ownership in land 'presupposes' the use of some of the airspace above. The court therefore held there was a constitutional taking of an air easement over the plaintiff's property line directly in the glide and ascent path of the planes.

From this latter case it appears that the power of Congress to establish a navigable airspace as public domain may not authorize a trespass about the owner's property, if, as a consequence thereof, there is injury to the owner's reasonable use and enjoyment of his land.

It seems to me this 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, therefore, where the flight directly over the land, by reason of noise and vibration, can be said in fact to cause serious interference in the owner's use and enjoyment of the property, it is a trespass, which is a constitutional taking, and requires full compensation.

Continued in Part Three