Gardner v. Allegheny County

Concurring Opinion by

Mr. Chief Justice Horace Stern :

Based upon its power over commerce, Congress by the Civil Aeronautics Act of 1938, pre-empted a na *119 tional navigable airspace and defined it as the airspace above the„ minimum altitudes of flight prescribed by regulations issued under the Act. It authorized the Civil Aeronautics Board to prescribe such regulations.

The Board’s Regulation 60.17 provides that, Except when necessary for take-off or landing, an aircraft, flying over congested areas, shall not be operated below 1,000 feet above the highest obstacle within a horizontal radius of 2,000 feet from the aircraft, nor below 500 feet above the surface when flying over other than congested areas except over open water or sparsely populated areas.

Defendants, as well as the Federal agencies, admit that interstate flights conducted below those prescribed minimum altitudes may be enjoined by a State court, —that is to say, if such trespasses are of a continuing character and materially interfere Avith the landoAvner’s use and enjoyment of his property.

This brings us to the question of take-offs and landings. When Regulation 60.17 excepted these from the prescribed minimum altitudes it in effect declared— as indeed would have been in any event obvious — that in the course of landing and taking off the minimum altitude must be less than the distances fixed for flights en route. How much less? Clearly no specific minimum could be fixed for that purpose, since it would depend in each instance and for each airport on the size and construction of the latter, on the topography of the surrounding land, on the nature, size and weight of the plane, on the conditions of Avind and weather, and above all, on the directions of the operator in the toAver to whose control the operator of the plane is subject. All that the Regulation said, and could say, Avas that the minimum altitudes prescribed did not apply Avhen “necessary for take-off or landing” which is another way of saying that the navigable airspace pre-empted *120 by Congress was the space above whatever altitude was necessary for such operations. (On July 22, 1954, the Civil Aeronautics Board issued a clarifying interpretation of Section 60.17 in which it construed the exception as prescribing a normal and necessary flight path after take-off or in approaching to land). The State, therefore may enjoin planes in take-offs and landings only if they fly below the necessary minimum altitude, and if as previously stated, the trespasses are of a continuing character, and materially interfere with the landowner’s use and enjoyment of his property. Whether that necessary minimum be more than 15, 30, or any other specific number of feet, cannot be determined except when the facts are ascertained at the hearing of the case. If it be there established that defendant’s planes in take-offs and landings fly below the floor of the navigable airspace as thus defined, and the other conditions above mentioned are found to exist, plaintiffs will be entitled to equitable relief. But it is important to add that, even if planes in landings or take-offs do not fly below the necessary minimum altitude governing such operations and therefore cannot be enjoined from such flying they nevertheless materially impair the use and enjoyment of the landowner’s property, the latter is entitled to be compensated for the easement thus established over his land (United States v. Causby, 328 U.S. 256 ), and, if the impairment be so great as to constitute a virtually complete taking of his land, to receive payment of the value of the land in proper eminent domain proceedings.

Mr. Justice Chidsey and Mr. Justice Arnold join in this concurring opinion.