In the matter before us, however, after searching the record, I am unable to find any evidence that would support a judgment of a taking, based on interference with the plaintiff's use and enjoyment of the land by airplane flights above the 500-foot level. Therefore, in my opinion, the trial court did not err in refusing to submit this issue to the jury.

Turning now to the issue presented as to whether the flights over the lands of adjacent owners, which create a noise nuisance, can constitute a taking of the plaintiffs' property in a constitutional sense.

So far as material, our constitution, which provides for just compensation for property taken, reads as follows:

'Private property shall not be taken for public use, * * * without just compensation.' Art. I, s. 18.

'The Fifth Amendment of the Constitution of the United States and Article I, Section 18, of the Oregon Constitution are identical in language and meaning. The word 'property' in these provisions is not 'used in its vulgar and untechnical sense of the physical thing with respect to which the citizen exercises rights recognized by law,' but 'to denote the group of rights inhering in the citizen's relation to the physical thing, as the right to possess, use and dispose of it.' United States v. General Motors Corp., 323 U.S. 373, 377-378, 65 S.Ct. 357, 359, 89 L.Ed. 311, 156 A.L.R. 390. When the sovereign exercises the power of eminent domain 'it deals with what lawyers term the individual's 'interest' in the thing in question. That interest may comprise the group of rights for which the short-hand term is 'a fee simple' or it may be an interest known as an 'estate or tenancy for years', as in the present instance.' Ibid. See 1 Lewis, Eminent Domain (3d ed.) ss. 63, 64. Or it may be such a right as is involved in this case.'

'* * * If, by reason of the frequency and altitude of the flights, respondents could not use this land for any purpose, their loss would be complete. It would be as complete as if the United States had entered upon the surface of the land and taken exclusive possession of it.

'We agree that in those circumstances there would be a taking Though it would be only an easement of flight which was taken, that easement, if permanent and not merely temporary, normally would be the equivalent of a fee interest. It would be a definite exercise of complete dominion and control over the surface of the land. The fact that the planes never touched the surface would be as irrelevant as the absence in this day of the feudal livery of seisin on the transfer of real estate. The owner's right to possess and exploit the land -- that is to say, his beneficial ownership of it -- would be destroyed. It would not be a case of incidental damages arising from a legalized nuisance such as was involved in Richards v. Washington Terminal Co., 233 U.S. 546, 34 S.Ct. 654, 58 L.Ed. 1088. In that case property owners whose lands adjoined a railroad line were denied recovery for damages resulting from the noise, vibrations, smoke and the like incidental to the operations of the trains. In the supposed case, the line of flight is over the land. And the land is appropriated as directly and completely as if it were used for the runways themselves.' (Emphasis mine.)

That the definition of a constitutional taking has consistently been grounded in the appropriation of an interest in the realty itself has been a rule of law of long standing under the Constitution of the United States is shown by the case of Portsmouth Harbor Land & Hotel Co. v. United States, 260 U.S. 327, 43 S.Ct. 135, 67 L.Ed. 287. In this case damages were sought in inverse condemnation because of the establishment of a fort in which there were gun emplacements and shells were fired over and across the plaintiff's land. Mr. Justice Holmes, speaking for the court, said: 'This is a claim in respect of land which, or an interest in which, is alleged to have been taken by the United States Government. * * *' (Italics mine.)

This court has always recognized and maintained this distinction between the loss of a proprietary right and damage in inverse condemnation proceedings. This is borne out by the cases cited by the majority.

In Willamette Iron Works v. Oregon R. & Nav. Co., 26 Or. 224, 37 P. 1016, 29 L.R.A. 88, this court carefully pointed out that the owner of property adjacent to a street has a proprietary interest in the street. And thus having a proprietary interest, this interest cannot be taken without just compensation.

This same thought is carried out in the case of McQuaid v. Portland & V. Ry. Co., 18 Or. 237, 22 P. 899, and to show that the court had in mind the distinction between a constitutional taking for which compensation must be paid and the creation of a nuisance which does not require compensation, I quote:

'* * * The latter will, doubtless, be obliged to submit to the ordinary inconveniences and consequences which the construction of a railroad track, and the moving of a locomotive and cars thereon, occasion, -- be compelled to endure the smoke, noise, and screeching which naturally result from the use of that character of vehicles; but they cannot be deprive of the right of ingress and egress, to and from their premises, without compensation. * * *'

In Kurtz v. Southern Pacific Co., 80 Or. 213, 155 P. 367, 156 P. 794, also cited, the basis of relief in the original opinion of the court is somewhat obscure, but no doubt is left in the opinion on rehearing. The relief of injunction was granted upon the fact that there had been no prior purchase or condemnation of the owner's proprietary interest in the land, an easement of ingress and egress,' the court stating:

'The evidence discloses that the spur track of which complaint is made is a special injury affecting no other property owner than plaintiff, that it will materially and permanently affect his ingress and egress to and from his lots, and consequently his property rights are invaded in a manner which can only be lawfully done by compromise or condemnation.'

A nuisance, although a tort, does not contemplate a physical invasion of the property of another, but the use of a person's own property in such a way as to interfere with another's free enjoyment of his property.

'A nuisance, in the ordinary sense in which the word is used, is any thing that produces an annoyance -- any thing that disturbs one or is offensive; but in legal phraseology it is applied to that class of wrongs that arise from the unreasonable, unwarrantable or unlawful use by a person of his own property, real or personal, or from his own improper, indecent or unlawful personal conduct, working an obstruction of, or injury to, a right of another or of the public, and producing such material annoyance, inconvenience, discomfort or hurt, that the law will presume a consequent damage. * * *.' 1 Wood on Nuisances, 3d Ed., s. 1, page 1.

'It goes without saying that the courts have never construed the 'just compensation' clause of a federal or state constitution as requiring payment for all injuries imposed upon persons or property by acts of government. Any such requirement would make government itself impossible. No legislature can enact an important statute which does not directly or indirectly impose a material loss on some property owners. The imposition of a tax, the establishment of a new banking system or currency reform, the enactment of a new protective tariff, will often inflict losses on many private citizens far in excess of the total loss imposed by the most drastic act of condemnation in the history of the world. Yet no compensation for these losses is required.' 1 Orgal on Valuation Under Eminent Domain, 2d Ed., s. 1, page 5.

'Private property may be damaged, and its value lessened because it is located close to some public buildings, such as a jail, or hospital, or public hall, yet such damage is purely incidental and not recoverable. The noise consequent on the operation of railroad trains upon a private right of way may depreciate the value of adjoining private property, and be an annoyance to those living in the immediate neighborhood, but such damage is purely consequential and is not recoverable.' 1 Orgal on Valuation Under Eminent Domain, 2d Ed., s. 1, page 6.

Trespass of property which, as has been pointed out, effects a taking in a constitutional sense, comprehends a physical invasion of the property either by the person or by causing a physical object to enter upon or over the property of another. Martin et ux. v. Reynolds Metals Co., 221 Or. 86, 342 P.2d 790.

'One who intentionally and without a consensual or other privilege

'(a) enters land in possession of another or any part thereof or causes a thing or third person so to do, or
'(b) remains thereon, or
'(c) permits to remain thereon a thing which the actor or his predecessor in legal interest brought thereon in the manner stated in ss. 160 and 161,

'is liable as a trespasser to the other irrespective of whether harm is thereby caused to any of his legally protected interests.'

Restatement of the Law, Torts, Vol. 1, s. 158.

'There is a distinction between a nuisance and a trespass, although many things are sometimes called nuisances which are mere trespasses, and it has been said that an action for a nuisance which violates a property right incident to the ownership of land is in the nature of one for trespass to realty. The difference is that a nuisance consists of a use of one's own property in such a manner as to cause injury to the property or other right or interest of another and generally results from the commission of an act beyond the limits of the property affected, while a trespass is a direct infringement of another's right of property. Thus, where there is no actual physical invasion of the plaintiff's property, the cause of action is for nuisance rather than trespass. * * *' 39 Am.Jur. 282, Nuisances, s. 3.

Since a nuisance interferes with the enjoyment of the right to possess land, different rules of law apply to the balancing of the interests of owners. An owner's use of his own land will not create liability unless his use causes substantial interference with another's enjoyment of his property. 4 Restatement of Torts, Interference with the Use of Land, Ch. 40, s. 822, p. 226. Also, the utility of the use that creates the nuisance must be weighed against the 'gravity of the harm.' Id., Ch. 40, s. 826, p. 241, and Ch. 40, s. 828, p. 250.

Such considerations are foreign to the law of trespass. A trespass imports damage and permits recovery, though no actual damage is caused. This rule of law is so well established citation of authority is unnecessary. There can be no balancing of interests.

Where a permanent trespass is committed by government, the constitution will not permit a balancing of the value of the taking for the benefit of the public against the interests of an owner. The owner must be fully compensated for his loss.

As pointed out, different policy considerations are involved in the laws of trespass which can ripen into a taking, and the laws of nuisance. The people have established these policy differences through the constitution and the enactment of laws which provide for entirely different procedures and considerations. See ORS 281.210 et seq., and ORS 105.505 et seq. This court ought not to exceed its powers to establish a different policy.

The distinction between what the law is, and a belief of what the law ought to be, is pointed out in the case of Batten v. United States, 306 F.2d 580 (10th Cir. 1962). This case is directly in point with the issue before us, and the majority opinion therein sustains the position which I have taken here.

The majority here, as does Mr. Chief Judge Murrah in his dissent in Batten v. United States, supra, seeks to place consequential damage in the same category as a taking, without attempting to draw the distinction which has always existed in the law; that is, the taking of a possessory interest as opposed to damage.

A nuisance takes none of the title in the property. The full legal title rests in the owner. If the nuisance is abated in any manner, the damage suffered has ended and the land is again restored to its full value to the owner. On the other hand, if there is a taking, the property right of ownership or some interest therein has been transferred from the owner to the sovereign, and does not again revert to the original owner even though the use to which the property has been put by the sovereign ceases.

It may well be, as suggested by Chief Judge Murrah, 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.' But the question of who should bear the burdens imposed by the creation and continuance of a great society created and maintained for the benefit of all, is, as pointed out herein, a political question to be resolved by a majority of the people through their elected representatives and not by judicial fiat.

As pointed out by the majority in Batten v. United States, supra, this course has been taken in many states by its citizens, and this is the course which should be taken in this state, if the entire burden is to be borne by the public.

In setting forth the principles of law which should prevent this court as a matter of law, as well as policy, from commingling the remedies afforded under the law of eminent domain and nuisance, I do not wish to convey the thought that the plaintiffs are without a remedy. The discussion that the plaintiffs may have a remedy requires consideration of the majority's statement to the effect that an easement of nusiance may be created as between private individuals. The rule has no application to public nuisances.

This court has established the rule that a damage action lies against a municipality, which has the same immunity from suit as does the state, for the creation of a nuisance for the benefit of the public. Wilson v. City of Portland, 153 Or. 679, 58 P.2d 257.

We have also stated that the 'convenience of the public' will not authorize the public to acquire an easement of nuisance by prescription. Ulmen v. Town of Mt. Angel, 57 Or. 547, 112 P. 529, 36 L.R.A.,N.S., 140.

A careful reading of the case of Richards v. Washington Terminal Co., 233 U.S. 546, 34 S.Ct. 654, 657, 58 L.Ed. 1088, cited by the majority, will show that this decision, which permitted a recovery of damages for a nuisance, was based upon the same principles announced by this court in Wilson v. City of Portland, supra.

It is true that the damage created by a nuisance may equal a taking of the whole, but this does not justify this court in stating that a nuisance may constitute a taking of a possessory interest in land, as contemplated by our constitution.

Since, as the plaintiffs state, this action was tried on the theory of inverse condemnation, the trial court committed no error in its rulings and the judgment should be affirmed. If the plaintiffs have suffered damage for a non-trespassory nuisance, they may seek redress in an action or suit, as provided by law.

For the reasons above set forth, I dissent.

McALLISTER, C. J., and ROSSMAN, J., concur in this dissent.