Whether the noise injury from a lateral flight over adjacent property is considered a taking (as in Thornburg) or a damaging is significant for two reasons:

• First, economic benefits can never be used as a set-off against a taking (See discussion at pages 75-76, infra).

• Second, as discussed, infra, the statute of limitations for an inverse condemnation action to recover for a taking in Illinois (as in many other states) is the same as the time period for adverse possession -- i.e., 20 years. For a damaging, the statute of limitations is five years. [FN 16]

[FN 16] Recognizing the indefensible incongruity that is created by distinguishing the exact same injury on the basis of whether it was from a lateral adjacent flight (damaging) as opposed to an overflight (taking), the Washington Supreme Court has abandoned the distinction and has held that the statute of limitations for both damaging and taking for aircraft injury is the same as the statutory period for adverse possession. See Highline School District No.401, King County v. Port of Seattle, 87 Wash. 2d 6, 548 P.2d 1085 (1976).

2. The Navigational Servitude Issue.

In many of the cases where airport proprietors have been held liable for noise injury (including Griggs), the airport proprietors have argued that Congress has declared certain portions of the air as "navigable airspace" and that since the aircraft flights were within the declared "navigable airspace" the declaration of navigability overrode any liability for the proprietor.

Under common law prior to the advent of aviation, the ancient rule was that ownership extended to the periphery of the universe. Cujus est solem ejus est us que ad coelum. But that doctrine -- which would allow a landowner to enjoin flights across his land -- was recognized by the courts as being inappropriate in the age of air travel. Indeed Congress, in the Air Commerce Act of 1926, had declared the navigable airspace as "airspace above the minimum safe altitudes of flight prescribed by the Civil Aeronautics Authority" 49 U.S.C. 180, quoted in United States v. Causby, 328 U.S. 256, 260 (1946).

In Causby, the defendant United States argued that "when flights are made within the navigable airspace without any physical invasion of the property of the landowners, there has been no taking of property." 328 U.S. at 260. The Supreme Court rejected the argument, noting that:

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.

We have said that the airspace is a public highway. Yet it is obvious that if the landowner is to have full enjoyment of the land, he must have exclusive control of the immediate reaches of the enveloping atmosphere....

The landowner owns at least as much of the space above the ground as he can occupy or use in connection with the land.

These general statements that the airspace was a public highway while the owners' rights extended as far as necessary left undefined the delineation as to at what heights the private property owners' rights stopped and the public airspace began. The Court in Causby left the question unresolved. "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." 328 U.S. at 266.

Causby left this question unresolved because the Civil Aeronautics Authority had set the bottom of the navigable airspace at 300 feet. In Causby, the flights in question were "not within the navigable airspace which Congress placed within the public domain." 328 U.S. at 264. Though the Court indicated its answer -- that in the event the declared navigable airspace coincided with the location of the flights which caused the injury there would be a taking [FN 17] -- the resolution of that issue awaited Griggs and its progeny.

[FN 17] "But the United States concedes, as we have said, that in that event there would be a taking." 32S U.S. at 264.

Flights of aircraft within the navigable airspace, that is, flights that are in accordance with Federal regulations and not lower than necessary for a safe landing and take off, are declared by Federal law immune and cannot be made the basis of a claim for a taking of property by the municipal owner of the airport.

In a somewhat cryptic response, the Supreme Court in Griggs rejected the argument that flights within the "navigable airspace" could not be the basis for a taking claim by the property owner:

But as we said in the Causby case, the use of land presupposes the use of some of the airspace above it. 328 U.S., at 264. Otherwise no home could be built, no tree planted, no fence constructed, no chimney erected. An invasion of the superajacent airspace" will often "affect the use of the surface of the land itself"

As discussed above, the Supreme Court in Griggs both found a taking and held that the entity liable for the taking was the airport proprietor -- despite the argument that the flights were entirely within the navigable airspace.

Griggs progeny in the state courts are more illuminating in their rejection of the "navigable airspace" defense. In Thornburg v. Port of Portland, supra, the airport proprietor argued that:

The plaintiffs have no right to exclude or protest flights directly over their land, if such flights are so high as to be in the public domain, i.e., within navigable airspace as defined by federal law.

Relying on Griggs, the Oregon Supreme Court rejected the navigable airspace argument.

Griggs v. Allegheny County, supra, is a square holding that taking of private property can be accomplished by planes landing or taking off within the navigable airspace. [citation omitted] There is, therefore, no merit in the defense argument that all flights within the navigable airspace are automatically free from liability.

The Oregon Court noted that the Supreme Court in Griggs rejected the navigable airspace defense as a bar to liability for noise caused during takeoffs and landings. The Oregon Supreme Court then went on to address whether noise caused by flights within the navigable airspace above the 500-foot lower limit, that -- apart from ascents and descents for take-offs and landings -- had been declared to be the lower limit of the navigable airspace, constituted a taking. The court found that there was no basis for distinguishing 500 feet or more from any lower altitude:

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. ... The ultimate question is whether there was a sufficient interference with the landowner's use and enjoyment to be a taking.

To the same effect see the decision of the Washington Supreme Court in Martin v. Port of Seattle, 64 Wash. 2d 309, 391 P.2d 540 (1964); cert. denied, 379 U.S. 989 (1965):

We are here in agreement with the Supreme Court, and find no merit in the argument that the privilege to use the airspace automatically means freedom from liability for damage or demonstrable pecuniary loss to property owners below. Flights are not immune from private litigation, whether in the process of take-off or landing [citation omitted] or above 500 feet [citing Thornburg]. [FN 18] 391 P.2d at 545

[FN 18] In addition to Thornburg and Martin, the federal Court of Claims has also recognized: (1) that takings occur even though the flights are within the navigable airspace; and (2) that flights above the bottom of the declared navigable airspace, i.e., 500 feet, can create a taking. See Branning v. United States, 654 F.2d 88 (Ct. Cl. 1981).

The City contends that because Congress has declared a public freedom of transit throughout the navigable airspace, and has defined the navigable airspace to include airspace needed to insure safety in takeoff and landing (49 U.S.C. 1301, 1304) the City is immune from liability. This is also without merit. The fact that the flights are within the navigable airspace does not immunize the owner and operator of an airport for failure to appropriate the land and airspace necessary to provide an adequate approach.

The bottom line in all of these cases is that, when noise from overflights causes an injury to the use and enjoyment of the underlying property) any claim of navigable airspace does not stand as a defense to a taking claim for interference with the use and enjoyment of that property. Whatever navigable servitude exists, it is subservient to the basic right of the underlying property owner to the use and enjoyment of his property. As stated by the North Carolina Supreme Court in Hoyle v. City of Charlotte, 276 N. C. 292, 172 S. E. 2d 1 (1970) quoting from the encyclopedia American Jurisprudence:

The general rule now deducible from the authorities is that the justiciable right to the exclusive possession of the land extends upward only to that point necessary for the full use and enjoyment of the land and the incidents of its ownership, the balance being regarded as open and navigable airspace. Stated affirmatively, a landowner has a dominant right of occupancy for purposes incident to his use and enjoyment of the surface, superior to any claimed rights of aerial navigators which conflict therewith.

The court went on to provide a good summary of the law of taking and the liability of the airport operator for such takings:

In our view, when defendant, by lease or otherwise, grants the right to use the airport, this grant includes the right to use the approach areas necessary to land and take off in the manner prescribed by the Federal Aviation Agency. Hence, if overflights in taking off and landing in accordance with the rules and regulations of the Federal Aviation Agency constitute a direct and immediate interference with the enjoyment and use of plaintiffs property to such extent as to impair substantially the fair market value thereof; such overflights would constitute a "taking" by defendant [the airport proprietor City of Charlotte] of an air easement as appurtenant to the operation of its Airport.

D. The Recognition Of Other State Law Remedies In Addition To Inverse Condemnation

Following the Supreme Court's declaration in Griggs that the airport operator was liable for noise injuries caused to surrounding property by aircraft approaching or leaving the airport, numerous state Supreme Courts have followed Griggs and held the airport owner liable for these noise injuries, on theories of recovery in addition to state inverse condemnation claims. See Greater Westchester Homeowners Association v. City of Los Angeles, 449 U.S. 820 (1980); Baker V. Burbank-Glendale-Pasadena Airport Authority, 39 Cal. 3d 862, 218 Cal. Rptr. 293, 705 P.2d 886 (1985), cert. denied, 475 U.S. 1017 (1986); Owen v. City of Atlanta, 157 Ga. App. 354, 227 S.E.2d 338 (Ga. App. 1981), aff'd, City of Atlanta V. Owen, 248 Ga. 299, 282 S.E.2d 906 (1981), cert. denied, 456 U.S. 972 (1982); Krueger V. Mitchell, 112 Wis. 2d 88, 332 N.W.2d 733 (1983); Ursin v. New Orleans Aviation Board, 506 So.2d 947 (La.App., 5th Cir.) reversed on other grounds, 515 So.2d 1087 (1987) [relating to joinder of indispensible parties).

As stated by the California Supreme Court in Greater Westchester, supra:

Is a municipality which owns and operates an airport liable on a nuisance theory for personal injuries sustained by nearby residents and caused by noise from aircraft using the facility? We conclude that it is.

The foregoing authorities recognize that a property owner has an inverse condemnation remedy, constitutionally founded, against the proprietor of an airport for property damage or loss caused by noise generated at the facility. We discern no reason either in law or policy why the common law and statutory remedy of nuisance as above defined should not under similar circumstances equally protect the person of the owner or the occupant.

The City of Los Angeles sought certiorari in the United States Supreme Court seeking to reverse Greater Westchester. The petition was denied. Significantly, in an amicus brief the Solicitor General stated that it is the position of the United States Government that state tort damage remedies -- in addition to the taking remedy of Griggs -- were available to injured neighbors. In responding to a Supreme Court order asking for the views of the United States as to the validity of the Greater Westchester decision, the Solicitor General, speaking on behalf of the United States said:

In our view, the decision below [Greater Westchester] is plainly correct.

The United States also acknowledged that airport proprietors were liable under state law for damages in tort as well as for takings under Griggs:

While the Seventh Circuit [in Luedtke] cited this Court's decision in Burbank in support of its holding, that court did not carefully examine Burbank (see 411 U.S. at 635-636 n.14), and did not attempt to reconcile its disposition of the nuisance claim with its holding that under Griggs, supra, the landowners had a valid cause of action for inverse condemnation against the airport proprietor, Luedtke, supra, 521 F.2d at 391. The federal noise policy that was recognized in Burbank, supra, 411 U.S. at 635-636 n.14, does not allow for ūlocal control of aircraft flights" and, to that extent, the Seventh Circuit was correct. However, that court failed to recognize the broad arsenal of powers otherwise available to the proprietors, which have been purposefully reserved to them because of their special ability to deal with local problems, and the court failed to recognize that the misuse or failure to use such powers could result in tort liability.

Nor is it relevant that, here, the City has been held liable in tort for personal injury, whereas the more frequent claim involves a taking of property by inverse condemnation. The noises of jet aircraft landing and taking off from airports which cause personal injuries are the same noises that simultaneously cause takings of property. In both cases, such noise is the responsibility of airport proprietors who have built the airport, located the runways and maintain sole responsibility for the operational decisions at those facilities. Under this Court's ruling in Griggs v. Allegheny County, supra, the City of Los Angeles is liable for torts as well as for takings. Id. at page 9 (emphasis added)

Following the California Supreme Court in Greater Westchester, the next court to find that neighbors injured by airport noise could bring state law nuisance damage actions were the Georgia courts in Owen v. City of Atlanta, 157 Ga. App. 354, 277 S.E.2d 338 (1981), aff'd, City of Atlanta v. Owen, 248 Ga. 299, 282 S.E.2d 906 (1981), cert. denied, 456 U.S. 972 (1982). In that case, citizens residing near Hartsfield International Airport brought state law claims for nuisance and trespass against the City of Atlanta, the owner and operator of the airport, and the Georgia appellate and Supreme Courts upheld nuisance liability against the City of Atlanta. Accord: Krueger v.Mitchell, 112 Wis. 2d 88, 332 N.W.2d 733 (1983); Ursin V. New Orleans Aviation Board, supra, 506 So.2d at 955 (La.App., 5 Cfr. 1987) (New Orleans International Airport).

That other state law remedies -- apart from and in addition to state law inverse condemnation actions -- are also available to property owners injured by aircraft noise has also been repeatedly recognized by federal courts. In Santa Monica Airport Association V. City of Santa Monica, 659 F.2d 100 (9th Cir. 1981), an association of airline industry supporters challenged a series of noise abatement restrictions that had been imposed by the local airport proprietor. Among other things, the association argued that any restrictions imposed by the proprietor had to be limited only to those necessary to avoid liability for a constitutional taking. The Ninth Circuit rejected this argument and held that the Griggs doctrine that the proprietor was liable for noise injuries extended to remedies other than takings:

Plaintiffs also argue that even if Griggs is used to justify a municipal-proprietor exemption to preemption, that exception should be limited to ordinances necessary to avoid Griggs liability. The problem with this argument is that it assumes that Griggs liability is limited to Fifth Amendment takings. Nothing in Griggs indicates such a limitation. Liability may well be imposed upon a municipality on theories other than inverse condemnation.

The above analysis provides overwhelming authority for the imposition of liability on the airport proprietor -- Chicago -- under state common law nuisance remedies as well as inverse condemnation.

E. The Great Weight Of Scholarly Authority Supports Plaintiffs' Analysis As To Proprietor Liability.

Plaintiffs are not alone in their analysis of proprietor liability under Griggs and its progeny. Most authors who have addressed the subject have emphasized that the proprietor remains liable:

A review of the federal and state cases demonstrates that the judiciary still adheres to the Griggs decision. This adherence to Griggs strongly emphasizes that responsibility for the consequences of noisy aircraft is with the airport proprietor, regardless of whether the proprietor is a public entity or a private party. The airport proprietor has the authority to control noise levels through the determination of the airport's location, the direction of the runways, and therefore the direction of flight of the aircraft, and through the construction and the operation of the airport. It is evident that federal plenary powers in the area of navigable airspace do not shield the airport proprietor against legal, and thus financial, responsibility for damages due to aircraft noise.

Holding the airport owner liable for damages caused by the way he runs his airport is only just. The owner has the opportunity to decide where to locate his airport, how large he will let it grow, what kinds of air traffic he will accommodate, and how he will operate it. If he starts small, the impact on the community is small. if he decides to expand his operations, paying for noise abatement measures should be considered a cost of doing business in that particular industry, and no different than other costs of expansion, such as the costs of larger terminals or longer runways.

[FN 19] At the time the article was published, Mr. Dolley was Chairman of the Airport Law Committee of the American Bar Association.

II. The Preemption Issue Burbank Does Not Preempt State Law Damage Remedies Against The Airport Proprietor.

A. Burbank And Its Progeny -- The Airport Proprietor Has Authority To Control Noise.

No discussion of the liability and responsibility of the airport proprietor's liability under the Griggs doctrine can be complete without a thorough discussion of the 1973 opinion in City of Burbank v. Lockheed Air Terminal, Inc., 411 U.S. 624 (1973). As discussed in detail below, the progeny of Burbank make clear that Congress has expressly decided not to attempt to preempt the proprietor's right to control or restrict noise from aircraft arriving or departing at its airport.

In a 5-4 decision authored by the same Justice who authored Griggs, the Supreme Court held that Congress -- in the passage of the Federal Aviation Act Amendments of 1968 and the Noise Control Act of 1982 -- had preempted the police power of a municipality to impose noise curfew on airports within its boundaries. But in doing so, the Supreme Court explicitly stated that it was not addressing the power of a municipal airport proprietor to impose noise controls to reduce its liability under the Griggs doctrine. Indeed the Court in making this distinction specifically relied on the congressional history of this legislation, which made clear that local airport proprietors could impose restrictions on aircraft flights into and out of their airport to control noise. In the now famous footnote 14, the Burbank majority made clear that it was not holding that airport proprietors' rights to control noise were preempted by the federal legislation:

The letter from the Secretary of Transportation also expressed the view that "the proposed legislation will not affect the rights of a State or local public agency, as the proprietor of an airport from issuing regulations or establishing requirements as to the permissible level of noise which can be created by aircraft using the airport. Airport owners acting as proprietors can presently deny the use of their airports to aircraft on the basis of noise considerations so long as such exclusion is non-discriminatory." (emphasis added [by the Court])

Appellants and the Solicitor General submit that this indicates that a municipality with jurisdiction over an airport has the power to impose a curfew on the airport, notwithstanding federal responsibility in the area. But we are concerned here not with an ordinance imposed by the City of Burbank as "proprietor" of the airport but with the exercise of police power. ... [A]uthority that a municipality may have as a landlord is not necessarily congruent with its police power. We do not consider here what limits, if any, apply to a municipality as a proprietor.

Every court that has examined the very question left unanswered by Burbank's footnote 14 -- i.e., whether Congress has preempted the proprietor's right to impose noise controls has answered affirmatively that proprietors do have the right to control and limit noise from aircraft operations at their airports. Thus, the United States Court of Appeals for Ninth Circuit in upholding the imposition of nighttime curfews by an airport proprietor and noise limits on departing and approaching aircraft held in Santa Monica Airport Association v. City of Santa Monica, 659 F.2d 100 (9th Cir. 1981):

The legislative history shows that Congress intended that municipal proprietors enact reasonable regulations to establish acceptable noise levels for airfields and their environs.

[FN 20] Accord: Alaska Airlines U. City of Long Beach, 951 F.2d 977, 982 (9th Cir. 1991) ("The City's authority to control airport noise is not preempted by federal law").