Introduction

See Prescriptive Avigation Easements

Literature

"Airport Operations or Flight of Aircraft as Constituting Taking or Damaging of Property," 22 American Law Reports 4th 863

"Airport Operator's Rights and Remedies As to Uses of Adjoining Land Interfering with Aircraft Operations, 25 American Law Reports 2d 1454

"Flight over Land As Taking or Damaging Thereof without Compensation," § 7, Aviation, 8 American Jurisprudence 2d

"Inverse Condemnation State Court Class Actions," 49 American Law Reports 4th 618 (see §§ 3, 4, 6, and 7 on airports and aircraft)

Kettelson. "Inverse Condemnation of Air Easements." 3 Real Prop., Prob. Tr. J. 97-___ (1968).

Rossi, Vincent J., Jr. "Inverse Condemnation and Nuisance: Alternative Remedies for Airport Noise Damage." 24 Syracuse Law Rev. 793-809 (1973).

Russell, James. "Recent Developments in Inverse Condemnation of Air Space [Compensation for Airport Interference with Rights of Adjacent Landowners]." 39 J. Air Law Comm. 81-101 (1973).

"Theories As to the Ownership of the Air and Legal Incidents Thereof," 69 American Law Reports 316, 83 American Law Reports 333, 99 American Law Reports 173 (these articles have historical value)

Zoning regulations limiting use of property near airport as taking of property, 18 ALR4th 542

Cases

FEDERAL

A. J. Hodges Industries v. United States (1966) -- Action for damages for taking of avigation easement over land near military airbase. Held: Regular and frequent flights at lower altitude than previously, due to runway extension, constituted a new taking of avigation easement. Likewise, regular and frequent flights by larger and noisier aircraft than those flown previously constituted a new taking of avigation easement. (U.S. Ct. Claims; 174 Ct.Cl. 259, 355 F.2d 592)

Aaron v. United States (1963) -- In this action for compensation for the taking of an avigation easement, plaintiffs were entitled to compensation for an easement only with respect to overflights below 500 feet above ground. Plaintiffs lived in an "uncongested" area and the public ("navigable") airspace in uncongested areas commences at 500 feet altitude according to federal aviation regulations. (U.S. Ct. Claims; 160 Ct.Cl. 295, 311 F2d 798)

Adaman Mutual Water Co. et al. v. United States (1958) -- Action for damages for taking of avigation easements over various farmlands situated near an Air Force base. Held: The taking of an avigation easement by the government occurs when the government begins to operate aircraft regularly and frequently over a parcel of land at low altitudes, with the intention of continuing such flights indefinitely. (U.S. Ct. Claims; 143 Ct.Cl. 921, 181 F.Supp. 658)

Argent v. United States (1996) -- Landowners near Navy air station brought inverse condemnation action, alleging that constant noise from pilot training diminished the use and enjoyment of their property and amounted to an avigation easement or taking. The trial court granted summary judgment for the government. Appellate court reversed, holding: (1) inverse condemnation action is not precluded just because aircraft do not fly directly over plaintiffs' property; (2) summary judgment was not appropriate because there was genuine issue of material fact whether increased flight operations created second avigation easement within the period set by statute of limitation. (Fed. Cir.; 124 F.3d 1277)

Branning v. United States (1981) -- Plaintiff brought action for compensation for alleged taking of easement over his property as a result of noisy aircraft flying overhead from adjacent Marine Corps Air Station. Held: the introduction of noiser aircraft after plaintiff purchased the property created a new cause of action, even though earlier flights (fewer and less noisy) had constituted a partial taking. In addition, the court had a strong response to the government's attempt to exclude liability for noise from aircraft flying above "safe altitudes": "Minimum safe altitude and minimum noise levels are concerned with two different things. [Citation] While safety may be measured in terms of altitude, a reasonable noise level cannot be measured solely in terms of altitude." "This is a case of first impression in which the court may consider the altitude of the flights over the [plaintiff's] property, but must give primary consideration to the effects of aircraft noise where the government itself has adopted and published standards of compatibility of use of the subjacent property." (U.S. Ct. Claims; 654 F.2d 88, 228 Ct.Cl. 240)

Favro v. Port of Seattle (1995) -- Waiver language in "avigation" easements cannot reasonably be interpreted as a waiver of claims for damages arising prior to the granting of the easements. (W.D. Wash., C92-16347, unpublished decision)

Hero Lands Company v. United States (1983) -- Owners of land adjacent to naval air station brought an action for inverse condemnation of avigation easements. Held: Flights over plaintiffs' land suitable for industrial development had not resulted in any substantial interference with plaintiffs' use and enjoyment of the land or any substantial diminution in value of the land. (U.S. Ct. Claims; 554 F.Supp. 1262)

Klein v. United States (1961) -- Plaintiffs in 1958 filed a claim to recover compensation for the taking of an avigation easement because of frequent flights of jet aircraft from a neighboring military airbase. The overflights began in 1947; claims against the government for damages must be filed within six years of the damage (28 USC 2501). Held: The filing of the claim was timely because a cause of action for taking of private property for public use does not accrue until conditions have reached that state where the extent of the government's use of an interference with plaintiffs' use and enjoyment of the property is known or ascertainable. In this case the damage to plaintiffs' property was not known or ascertainable until September 1954. (U.S. Ct. Claims; 152 Ct.Cl. 221) (Compare Lacey v. United States, below.)

Lacey v. United States (1979) -- Claim for taking of avigation easements was barred by six-year statute of limitations on claims against the U.S. government (28 USC 2501) because the extent of impairment of landowners' right by overflights were readily ascertainable long before the six years preceding the claim. (U.S. Ct. Claims; 595 F.2d 614)

Persyn v. United States (1995) -- Genuine issues of fact as to noise generated by aircraft flying over property adjacent to an Air Force Base, the frequency and altitude of flights, and the effect on the adjacent landowners' property precluded summary judgment on landowners' claim of a taking due to the overflights. (U.S. Ct. Claims; 32 Fed. Cl. 579)

CALIFORNIA

Courts of Appeal

Andrews v. County of Orange (1982) -- Fifty four homeowners near John Wayne Airport filed actions for inverse condemnation against the county as owner of the airport, claiming jet overflights had diminished the market value of their homes. In addition, six plaintiffs sued for personal injury and emotional distress. The court upheld the right of plaintiffs to introduce evidence about what the county could have done to alleviate aircraft noise. In addition, the case is interesting because it provides insight into one jury's biased consideration of diminution of market value of homes caused by aircraft noise. (Ct. App. 4th Dist.; 130 Cal.App.3d 944)

Baker v. Burbank-Glendale-Pasadena Airport Authority (1990) -- The court affirms the judgement of the trial court that applicable statutes of limitation bar the plaintiffs' actions for inverse condemnation and nuisance based on noise, smoke, and vibration of overflying aircraft. (Ct. App. 2d Dist.; 220 Cal.App.3d 1602, 270 Cal.Rtr. 337).

City of Oakland v. Nutter (1970) -- The City, owner of the Oakland International Airport, sought to acquire easements in the airspace over numerous residential properties to protect approaches to the airport. The City insisted that the easements were "clearance" easements only. The defendant-owners argued that the easements were in fact "avigation" easements and sought not only the fair market value of the easement to be condemned but also "severance damages" due to the interference and inconvenience that the remainder of the property suffers by reason of the air easement. The court ruled that landowners are entitled to recover for the diminution in the value of the subjacent land remaining after an air easement and that it is proper for a trial court to hear evidence of the effects of excessive noise, vibration, discomfort, inconvenience, and interference with the use and enjoyment of the land on the value of the subjacent land, to the extent such factors are occasioned by flights through the easement condemned. (Ct. App. 1st Dist.; 13 Cal.App.3d 752, 92 Cal.Rptr. 347)

Smith v. County of Los Angeles (1989) -- There is no constitutional bar to assessment of costs against an unsuccessful plaintiff in an action for inverse condemnation. (Ct. App. 2d Dist.; 214 Cal.App.3d 266, 262 Cal.Rptr. 754) (See also Lochlin v. City of Lafayette, Cal. Sup. Ct. 1994.)

Superior Courts

Cole et al. v. City of Santa Monica (2001) -- An action for inverse condemnation was unsuccessful because the judge discredited the testimony of the plaintiffs' expert witness on the diminution in the value of their property due to aircraft noise. The court also denied the city's claim of a prescriptive easement in the air above plaintiffs' properties, on the grounds in part that the city had often recognized plaintiffs' property rights by promising to minimize aircraft noise. (Sup. Ct. Los Angeles Co., Case No. SC 055 183)

OTHER STATES

Alevizos v. Metropolitan Airports Commission [Alevizos I], Minn. 1974 -- Held: a property owner may have an action in inverse condemnation where airflights constitute a direct and substantial invasion of property rights; the invasion is of such a magnitude that the owner of the property is deprived of its practical enjoyment; and the invasion results in a definite and measurable loss in market value that the property-owning public in general does not suffer. To justify an award of damages, invasions of property rights must be repeated, aggravated, and not of an occasional nature, and there must be a reasonable probability that they will be continued into the future. In addition, the court held that the action in this case was not maintainable as a class action because the issues raised by individual property owners were too various. See the later related case Alevizos II (1982), below. (298 Minn. 471, 216 N.W.2d 651)

Alevizos v. Metropolitan Airports Commission [Alevizos II], Minn. 1982 -- This decision focuses on the evidence required to support an action for inverse condemnation of an avigational easement. Held: Questions as to how loud airport noise was, if noise levels were in dispute, and what diminution in market value was and whether it was caused by airport noise were factual issues to be resolved by the jury, while questions whether noise of a specified decibel level constitutes loss of practical enjoyment of property over and above inconvenience suffered by the average city dweller and whether specific change in market value constitutes such a change are legal questions to be decided by the court. Case remanded to trial court for retrial (see Ario v. Metropolitan Airports Commission, 1985, below). (317 N.W.2d 352)

Bakus v. Broward County, Fla. Ct. App., 4th Dist., 1993 -- Residential property owners sued the county-owner of an airport for inverse condemnation based on the county's temporary use of an alternate runway during extension and repair of the main runway. Held: the evidence in the trial court supported the finding that the plaintiffs had not established either a temporary or permanent taking of their property. (Unpublished op., March 23, 1993, docket no. 91-03357; see 615 So.2 166 (table))

Benton et al. v. Savannah Airport Commission, Ga. App., 1999 -- Property owners sued for damages to their property, allegedly caused by increased air traffic and noise. Plaintiffs based their claims on a number of statutory and common law grounds, including inverse condemnation and nuisance. The court affirmed the dismissal of the claims for inverse condemnation and nuisance on the grounds the claims were barred by the statute of limitation. The court characterized the airport noise as a permanent (rather than continuing) nuisance, and therefore the injury to the plaintiffs' property was "complete and capable of being fully compensated" at the time the airport's runway became operational at its present length. (525 S.E.2d 383).

City of Atlanta v. Starke, Ga. Ct. App., 1989 -- Owners of residential property next to city-owned airport sued the city for trespass, nuisance, and inverse condemnation. Held: property owners could prevail on inverse condemnation even though the value of their properties had increased due to overall increases in property value in plaintiffs' neighborhood. (384 S.E.2d 419, 192 Ga.App. 267).

City of Atlanta v. Watson, Ga. 1996 -- Owner of apartment buildings sued the city-owner of an airport for nuisance and inverse condemnation arising from overflights. Plaintiff challenged the city's "noise compatibility" program in which the city purchased single-family homes next to the airport and razed them, but did not buy out multifamily residences, creating a "wasteland" around the remaining residential buildings. The city believed that multifamily residences were not as noise sensitive as single-family residences. The state supreme court reversed the ruling of the Court of Appeals. Held: the distinction between single- and multifamily residences does bear a rational relationship to the stated goals of the program and thus the city was not liable to the plaintiffs. (267 Ga. 185, 475 S.E.2d 896)

Cochran v. Charlotte, N.C. Ct. App. 1981 -- Plaintiffs brought an action for inverse condemnation against the owner-operator of a municipal airport for flight easements over their homes after extension of the airport's runway created landings and take-offs over their homes for the first time. The trial court granted judgment for the plaintiffs, and ordered that the city was now deemed vested with perpetual easements over plaintiffs' properties "permitting the low, regular and frequent flight of heavy aircraft, both jet powered and propeller driven, commercial and military, of all types...." The appellate court held this order erroneous insofar as it unconstitutionally precluded plaintiffs from seeking damages for any future takings due to noise from new types of aircraft. (53 N.C.App. 390, 281 S.E.2d 179), pet. denied NC 1981 (304 NC 725, 288 S.E.2d 380)

Culley et al. v. County of Elko, Nev. 1985 -- Plaintiffs' brought an action for nuisance and inverse condemnation, alleging that extension of the county airport's runway caused increased levels of noise, dust, fumes, and vibration, with consequent diminution of property values. The state supreme court held that the trial court erred in dismissing plaintiffs' actions. (In this case the trial court had improperly excluded from evidence documents that showed the county board of supervisors approved the runway extension in part to shift the noise impact of airport operations from downtown Elko onto the plaintiffs' properties!) (711 P.2d 864, 101 Nev. 838)

Fitzgarrald v. City of Iowa City, Iowa 1992 -- Owners of land next to a municipal airport brought a mandamus action to compel condemnation of an avigation easement on their property ("inverse condemnation"). As a result of expansion of the airport, their property now lay within a "clear zone". Plaintiffs alleged these circumstances resulted in (1) a physical invasion of their property due to noise and vibration of overflying aircraft, and (2) restrictions on their ability to develop their land and thus a regulatory taking of their land. Held: As a matter of law, aircraft overflying designated land do not constitute a physical invasion of the property if the property owner cannot prove a measurable decrease in market value of the property, and in this case the plaintiffs did not meet the burden of proof. In addition, in this case the loss of development potential was not severe enough to rise to the level of a compensible regulatory taking. (492 N.W.2d 659)

In re. Flowers, Commonwealth Ct. Pa. 1999 -- Petitioners bought a home near an airport in 1960. In 1996 they filed an action for inverse condemnation, alleging that the noise from flights of larger aircraft since 1992/93 had deprived them of the beneficial use and enjoyment of their property and therefore the Airport Authority (a public agency) had effected a taking of property for which they should be compensated. The trial court entered judgement for the petitioners. On appeal the Authority argued that the trial court erred in applying a 21-year statute of limitations (for property taken without compensation) rather than a five-year statute of limitation (for injury to property without a taking). The appellate court upheld the trial court's judgement: "Aircraft flights over private property result in a de facto taking of the property when their frequency and noise level result in owners being deprived of the beneficial use and enjoyment of their property...." (Published on the court's website.)

Fullerton v. Knox County Commissioners, Maine, 1996 -- If the trial court finds that an air easement amounts to a "direct and immediate" interference with plaintiff's land, plaintiff is entitled to interest from the date of the takings judgment. (672 A.2d 592)

Greater Baton Rouge Airport District v. Hays, La. Ct. App., 1st Cir. 1976 -- Airport sought an avigation easement on property adjacent to the airport, a condition for FAA funding of the extension of a runway. The court held that the diminution of property value resulting from an avigation easement was a "taking," not "damaging," of property. Thus the statute of limitation on claims for damages to property did not apply. The court's opinion also offers detailed insight into the evaluation of property for the purpose of calculating compensation for the easement. (339 So.2d 431)

Jackson v. Metropolitan Knoxville Airport Authority, Tenn., 1996 -- Residential property owners sued airport for inverse condemnation, alleging that, because of runway extension, noise, vibration, and pollutants had increased from aircraft that flew near but not over their properties. Held: inverse condemnation is proper even if flights have not occurred directly over the property at issue, so long as the flights constitute a direct and substantial interference that is repeated and peculiarly affects the property. The court relied on the 1962 Thornburg decision from Oregon (see below). (922 S.W.2d 860)

Kupster Realty Corp. v. State of New York, Ct. Claims NY, 1978 -- This was the first New York case to evaluate appropriations of avigation easements. The court dismissed plaintiff's claims for compensation for avigation easements, concluding that the market values of the subject properties were the same before and after the easements were declared. This opinion is an excellent discussion of appraisal of property damages due to overflight; it also includes an extensive discussion of plaintiff's expert testimony on noise, which the court found inadequate. (404 N.Y.S.2d 225)

Long v. City of Charlotte, NC, 1982 -- Landowners near city-owned airport sued for damages from aircraft flights over their property, alleging trespass and nuisance. Held: inverse condemnation is the sole remedy for harm caused by overflights. (293 S.E.2d 101)

Martin v. Port of Seattle, Wash., 1964 -- An action for inverse condemnation, seeking damages for a taking or damaging of property for public use caused by the noise of jets flying into and out of a nearby airport, is a legally cognizable claim. No overflight or direct physical invasion of the airspace of the land is necessary to maintain an action under the "taking" or "damaging" provisions of the state constitution. (391 P.2d 540, 64 Wash.2d 309)

Melillo et al. v. City of New Haven Conn., 1999 -- Plaintiff landowners, in an action to recover compensation for a taking of an avigation easement, failed to prove economic harm to their property. (732 A.2d 133)

Shipp v. Louisville and Jefferson County Air Board, Ct. App. Ky. 1968 -- Defendants refused to permit the county to shorten two trees on their residential property, which the county claimed presented a hazard to operations at its airport. County sued for declaration that it had a prescriptive right to a "clear zone" approach to the airport. "The Air Board has no prescriptive right for the simple reason it has not exercised adverse rights in the space involved for fifteen years...." In any event, the county must proceed by condemnation since defendants' right to enjoy their trees was acquired before federal statute established the public right to navigable airspace, i.e., before the right of the Air Board was fixed in law. (431 S.W.2d 867)

Thornburg v. Port of Portland, Ore., 1962 -- A taking of private property may be trespassory or by nuisance. Landowners have a right to be free from unreasonable noise. A taking can occur if aircraft noise is not directly over the plaintiff's property and even if it is within the navigable airspace defined by law. (376 P.2d 100)

Ursin v. New Orleans Aviation Board, La. Ct. App., 1987 -- Residents and property owners of an area surrounding a municipal airport sought damages for nuisance and inverse condemnation due to excessive noise from aircraft using the airport. The suit was originally filed as a class action, which was dismissed, and then refiled as individual actions. Later the trial court granted a plaintiffs' motion to declare all residents within the 65 dB noise contour surrounding the airport of the lawsuit as indispensible parties to the action. These residents were notified that they could join the lawsuit. As a result, about 6,500 "postcard plaintiffs" were added. The appellate court upheld the joinder as proper. In addition, defendants had insisted that plaintiffs' exlusive remedy for damages due to aircraft noise was inverse condemnation. Held: Plaintiffs' remedies could also include damages under state nuisance law. (506 So.2d 947)

Young v. Palm Beach County, Fla. Ct. App., 1984 -- In action for inverse condemnation of avigation easement, property owner's allegation that frequency of flights over his property had steadily increased over time adequately met the requirement that he plead that conditions complained of were reasonably expected to continue. The plaintiff's complaint stated a cause of action for inverse condemnation nothwithstanding the trial court's finding that the air or navigational easements allegedly taken were not adequately described. (443 So.2d 450)