Citation. 22 Ill.328 U.S. 256, 66 S. Ct. 1062, 90 L. Ed. 1206 (1946)
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Respondents claim that their property was taken, within the meaning of the Fifth Amendment, by the regular army and navy aircraft flights over their house and chicken farm.
Synopsis of Rule of Law.
The airspace is a public highway, but if the landowner is to have the full enjoyment of his land, he must have exclusive control over the immediate reaches of the enveloping atmosphere.
Facts.
Respondents own 2.8 acres near an airport outside of Greensboro, North Carolina. Respondents’ property contained a house and a chicken farm. The end of one of the runways of the airport was 2,220 feet from Respondents’ property, and the glide path passed over the property at 83 feet, which is 67 feet above the house, 63 feet above the barn, and 18 feet above the highest tree. The use by the United States of this airport is pursuant to a lease beginning June 1, 1942, and ending June 30, 1942, with provisions for renewal until June 30, 1967, or six months after the end of the national emergency, whichever is earlier. The United States’ four motored bombers make loud noises when flying above the property, and have very bright lights. Respondents’ chicken farm production had to stop, because 150 chickens were killed by flying into walls from fright. In the Court of Claims, it was found that the United States had taken an easement over the property on June 1, 1942, and that the val
ue of the property depreciation as the result of the easement was $2,000.00. The United States petitioned for certiorari, which was granted.
Issue.
Has the Respondents’ property been taken within the meaning of the Fifth Amendment?
Held.
Yes. But the case is remanded for a determination of the value of the easement and whether the easement was permanent or temporary.
The court noted the common law doctrine of ownership of land extending to the sky above the land. However, the court notes that an act of Congress had given the United States exclusive national sovereignty over the air space. The court noted that common sense made the common law doctrine inapplicable.
However, the court found that the common law doctrine did not control the present case. The United States had conceded in oral argument that if flights over the Respondents’ property rendered it uninhabitable then there would be a taking compensable under the Fifth Amendment. The measure of the value of the property taken is the owner’s loss, not the taker’s gain.
The airspace is a public highway. But it is obvious that if the landowner is to have the full enjoyment of his land, he must have exclusive control of the immediate reaches of the enveloping atmosphere. If this were not true then landowners could not build buildings, plant trees or run fences.
The airspace, apart from the immediate reaches above the land, is part of the public domain. The court does not set the precise limits of the line of demarcation. Flights over private land are not a taking, unless, like here, they are so low and frequent as to be a direct and immediate interference with the enjoyment of the land. The Court of Claims must, upon remand, determine the value of the easement and whether it is a temporary or permanent easement.
Dissent.
The dissent would reverse the decision of the Court of Claims and hold that there has been no taking within the meaning of the Fifth Amendment. This is because of the modern nature of the airplane, and the desire to avoid confusion.
Discussion.
The national emergency, World War II, meant that the airport, which was not previously used by large planes, would be the home to large bombers. The use of the airspace above Respondents’ home and farm was not a problem previously, because the flights were sporadic and not nearly as loud as the bombers.
