# Ackerman v. Port of Seattle

> Washington Supreme Court · January 14, 1960 · 55 Wash. 2d 400

URL: https://www.frixlaw.com/law-library/cases/9531398

## Case

- **Full name:** George Ackerman Et Al., Appellants, v. the Port of Seattle, Respondent
- **Court:** Washington Supreme Court
- **Decided:** January 14, 1960
- **Citations:** 55 Wash. 2d 400; 348 P.2d 664; 77 A.L.R. 2d 1344; 1960 Wash. LEXIS 512
- **Precedential status:** Published
- **Opinion:** Dissent by Mallery
- **Judges:** Finley, Mallery
- **Cited by:** 98 later opinions in the Frix Law Library

## Citator (automated)

- **Red flag:** Overruled on other grounds by Highline School District No. 401 v. Port of Seattle, 87 Wash. 2d 6 (1976).
- Negative treatments: 1
- Distinguished by: 0
- Full citator and citing cases: https://www.frixlaw.com/law-library/cases/9531398

## Opinion text

Mallery, J.
(dissenting)—The plaintiffs are owners of unimproved properties in the general vicinity of the Seattle-Tacoma airport. They seek damages for diminished property values caused by aircraft flying over their property about one hundred times a day at an elevation of less than five hundred feet. The diminished values are attributed to the noise of the aircraft and the fear they engender.
It is not alleged that the Port of Seattle operates the aircraft or is responsible for the air lines under the doctrine of respondeat superior.
Plaintiffs predicate the liability of the Port of Seattle on the theory that it knew the air lines would trespass on plaintiffs’ properties, because the airport has insufficient area. They do not allege that the dimensions or layout of the airport is in violation of any governmental regulation. They do not allege the distances of their properties from the airport. They do not allege that the air lines cannot operate lawfully because of the size of the airport and do not plead the breach of any regulation governing the operation of aircraft. The bare allegation of insufficient area for the airport is a conclusion of law and not a well-pleaded fact.
An action for diminished value of property, caused by *415 noise and fear incident to the distant landing and take off of airplanes is a nuisance action.
The existence of the airport is specifically authorized by statute, and no violation of any city, state, or Federal zoning or other regulation is alleged. RCW 7.48.160 [cf. Rem. Rev. Stat., § 9916] provides: “Nothing which is done or maintained under the express authority of a statute, can be deemed a nuisance.”
Curiously enough, the majority opinion, without holding that the plaintiffs have a cause of action for nuisance, proceeds to hold that there is a constitutional taking of the plaintiffs’ land for public use by reason of damages characteristic of a nuisance, rather than a trespass.
This theory of a constitutional taking is the application of an outmoded legal fiction no longer necessary or useful. It had its origin in the immunity of the sovereign, which could be circumvented only by invoking the constitutional prohibition against the taking of private property for public use without compensation. Thus, where manifest private hardship and injustice flowed from a public activity, the legal fiction of a constitutional taking of property served a useful purpose in certain instances. Sovereignty has now waived its immunity in all proper cases. The justification for the legal fiction is gone. Now a direct action for nuisance or trespass will lie where such causes of action exist in fact.
The majority opinion invokes the legal fiction of a constitutional taking of the plaintiffs’ land, not for the purpose of evading the sovereign immunity of the Port of Seattle, but to permit the maintenance of a cause of action for nuisance, which it did not find to exist.
United States v. Causby, 328 U. S. 256 , 90 L. Ed. 1206 , 66 S. Ct. 1062 , is cited by the majority opinion, but it does not support it. I quote from the Causby case [p. 266]:
“The airplane is part of the modern environment of life, and the inconveniences which it causes are normally not compensable under the Fifth Amendment. [United States constitution.] The airspace, apart from the immediate reaches above the land, is part of the public domain.
*416 It goes on to define the public domain as the air above the minimum safe altitude of flight prescribed by the Civil Aeronautics Authority.
There are no allegations in the complaint that the flights are in violation of the rules of the Civil Aeronautics Authority. Hence, there has been no invasion of plaintiffs’ property or any constitutional taking of it under the rationale of the Causby case.
I dissent.

---

Source: Frix Law Library, https://www.frixlaw.com/law-library/cases/9531398. Public record. Not legal advice.