Brief Fact Summary.
Respondents, who owned a dwelling house and buildings used to raise chickens, had lost chickens due to the noise of the aircraft that fly near their property. Respondents sued the Government for violation of the Takings Clause.
Synopsis of Rule of Law.
If the flights over one party’s property rendered it uninhabitable, there would be a taking compensable under the Fifth Amendment. It is the owner’s loss, not the taker’s gain, which is the measure of the value of the property taken.
And the land is appropriated as directly and completely as if it were used for the runways themselves.View Full Point of Law
Respondents own 2.8 acres near an airport in North Carolina. It has on it a dwelling house and various outbuildings which were mainly used for raising chickens. The end of the airport’s northwest-southeast runway is 2,220 feet from respondents’ barn and and house. The path of glide to this runway passes directly over the property. The use by the U.S of this airport is pursuant to a lease. Various aircraft comes close enough at times to appear barely to miss the tops of the tress and sometimes so close to the tops of the trees as to blow the old leaves off. The noise is startling, which led the respondents to give up their chicken business. As many as six to ten of their chickens were killed on day day by flying into the walls from fright. The total production fell off. Respondents are frequently deprived of their sleep and the family has become nervous and frightened.
Was the respondents’ property taken by frequent and regular flights of army and navy aircraft over respondents’ land at low altitudes in violation of the Constitution?
Yes, the airplane is part of the modern environment of life, and the inconveniences which it causes are not normally compensable under the Fifth Amendment. The airspace, apart from the immediate reaches above the land, is part of the public domain. 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, which is the case here. The lower court found that there was a diminution in value of the property of the respondents and that the frequent, low-level flights were the direct and immediate cause. Therefore, the flying of planes by U.S airforce constituted a violation of the Takings Clause.
The allegation of noise resulting in damages constitutes at best an action in tort where there might be recovery if the noise constituted a nuisance. The concept of taking property has never been given so sweeping a meaning. The Court’s opinion presents no case where a man who makes noise onto his neighbor’s property has been ejected from that property for wrongfully taking possession of it. The adjustment of the rights and remedies of property owners should be left with Congress.
The airspace is a public highway. Yet, if the landowner is to have full enjoyment of the land, he must have exclusive control of the immediate reaches of the enveloping atmosphere. Otherwise buildings could not be erected, trees could not be planted, and even fences could not be run. The landowner owns at least as much of the space above the ground as he can occupy or use in connection with the land. The fact that he does not occupy it in a physical sense – by erecting buildings – is not material. The flight of airplanes, which skim the surface but do not touch it, is as much an appropriation of the use of the land as a more conventional entry upon it. If the United States erected an elevated railway over respondents’ land at the precise altitude where its planes now fly, there would be a partial taking, even though none of the supports of the structure rested on the land.