Causby v. United States

MADDEN, Judge

(dissenting).

I am unable to agree with the decision of the court for several reasons.

First. The court awards the plaintiffs $2,000, one-half the value of their property. This award can be justified only by assuming that the activities of the Government which are the basis for this suit are to be carried on permanently. There is no basis in the evidence for such an assumption. The Government’s lease on the airport is to terminate six months after the end of the present national emergency. When the lease terminates, the plaintiffs’ property will be just as useful and just as valuable as it was before the Government *759 leased .the airport in 1942. The plaintiffs will have their property, unimpaired, and also one-half of its value. Just compensation for a partial impairment of value for what will probably be about four years’ use does not amount to one-half of the fee value of the property. After the Government has paid the judgment, it will have no way of recouping the money which if has been obliged to pay for a permanent right which it does not want and has no expectation of using. It will have nothing to sell, since the privilege of flying military planes at low altitudes over the plaintiffs’ property could be of no use to anyone but the Government.

Second. I think that the Government has the right, at least in wartime, to have its military planes fly through the air space over a landowner’s land, when the flights are at safe altitudes and are no more frequent than they were in this case. There is no question here of danger of physical contact with the plaintiffs’ property. By recognized standards, the glide angles for even the heaviest of planes were such that they easily cleared the plaintiffs’ buildings and trees. The Government’s activities at the airport were conducted with great care, so that, in fact, the plaintiffs’ property was no more subject to peril of physical contact than that of the countless persons throughout the country over whose homes planes fly at various heights. The harm to the plaintiffs’ property resulted from the noise of planes, and, to a slight degree, from the lights of the occasional night flying planes. These annoyances are real, and may diminish the value of property. But all those whose property lies near a railroad, or a highway, or a street car line, •suffer from these annoyances in varying degrees, and practically always without compensation, even though the owner of the annoying enterprise is a private or municipal corporation which is fully subject to suit.

When railroads were new, cattle in fields in sight and hearing of the trains were alarmed, thinking that the great moving •objects would turn aside and harm them. Horses ran away at the sight and sound of a train or a threshing machine engine. The farmer’s chickens have to get over being alarmed at the incredible racket of the tractor starting up suddenly in the shed adjoining the chicken house. These sights and noises are a part of our world, and airplanes are now and will be to a greater degree, likewise a part of it. These disturbances should not be treated as torts, in the case of the airplane, any more than they are so treated in the case of the railroad or public highway.

Third. Assuming that what the Government did was a legal wrong, I do not think that it was a taking of the plaintiffs’ property. If not, the Constitution and the statute defining our jurisdiction give the plaintiffs no right to recover. The nature of the court’s judgment, an award of one-half the value of the property, would indicate that the compensation is for damage done to the property, rather than for taking it. The plaintiffs still have the property, and will have it after the judgment. They will also have, of course, the amount of the judgment. The court’s method of resolution of this seeming contradiction is to say that the Government has taken, not the property or one-half or any part of it but an easement in or through it. Then, the reasoning goes, the damage to the property may be appended to the interest taken, and thus included in the award made for the taking. I recognize that if the Government takes a part of a man’s land, and the effect of the taking is to damage the part not taken, as, for example, by depriving it of access to a road, the incidental damage may be recovered in the suit for the taking.

The court’s conclusion that an easement of flight was taken is, I think, erroneous. As I have said, I think the Government had the privilege, at least during the war, of making the flights which it has made. If so, it needed no granted easement and cannot be regarded as having taken one by doing what it had the right to do. And if it did not have the right to make the flights, I have difficulty in determining the nature of the easement which it took and should pay for. If the flights were, as the court’s opinion must assume, trespasses, they would, if the defendant were an ordinary litigant, be the subject of a damage suit for past damages, and an injunction against repetition. But the fact that an ordinary person had committed trespasses on the plaintiffs’ land in the past would not give the plaintiffs a right to sue the trespasser as if he had taken the land, or an easement in it, and make him pay the permanent value of the land or the easement. There is no such doctrine of the *760 conversion of land to one’s own use by taking liberties with it, as there is in regard to personal property. Hence the plaintiffs could get no such remedy against a private defendant as they are being given here. It seems then as if the court is, by way of compensation to the plaintiffs for the fact that the Government is not suable in tort, giving them a remedy against the Government by way of compensation for property taken, which in its nature, and especially in the amount of the recovery, differs completely from any remedy the plaintiffs might have against a private litigant.

There might be justification for this stretching of legal doctrine if there was any showing of an intention on the part of the Government to make permanent use of the plaintiffs’ land. But, as I have said, the Government’s lease on the airport ends six months after the end of the war. Hence it is having a permanent easement forced upon i-t which it has no use for and should not be obliged to pay for. In the case of Portsmouth Harbor Land & Hotel Co. v. United States, 260 U.S. 327 , 43 S.Ct. 135 , 67 L.Ed. 287 , the court held that if the Government’s installation of a coastal defense battery was with the intent of maintaining it there in time of peace, and firing projectiles across the plaintiff’s land whenever it chose to do so', that would constitute a taking for which compensation should be made, but if it was merely placed as a defensive measure in time of war, it would nor constitute a taking. This decision supports the idea which I have expressed above that the Government is privileged to carry on activities in wartime which may be harmful to landowners, which activities would not be privileged in time of peace. But I suppose it also shows the court’s reluctance to saddle upon the Government the burden of paying the permanent value of land or interests in land for which it has no desire or use, it merely needing the use for the temporary period of the emergency. I think, therefore, that if the court concludes that the Government’s repeated trespasses amount to the taking of an easement, it should award compensation for that easement, and for the incidental damage -to the land, only down to the time of judgment, and should retain the case for the award of further compensation when the Government’s use of the airport, and its easement, terminate at the end of the war. In this way the court could avoid compensating the plaintiffs in an amount several times as great as. any loss which they will, in all probability, suffer.

JONES, Judge, took no part in the decision of this case.