Petition for Writ of Certiorari — In re Estate of Hurst

Supreme Court brief1963

Ask Donna

What actually matters in this document.

Text

INF. DAVIS, CLERK

In the Supreme C

of the United States

- OCTOBER TERM, 1962

no. 068 |

WittiaM J. Batten and Karte M. Barren, His Wife; DonaLp

G. Becker and Ovat M. Becker, His Wife; Don T. CAMPBELL

and Lera Mae Cameppert, His-Wile; Exxvest S. HloRtON and

Marcaret U. A. Horron, His Wife; Ivan F. Huns and BErRNna-

DINE M. Huns, His Wife; Tuomas N. Lee and Giapys M. Ler,

His Wife; Crype A. Lewis and Dororny L.. Lewis, His Wife;

Epwarp Date Moore and Fay L.. Moore, His Wife; Joun W.

SrEVENS and VAbDA Si—PHENS, His Wife: and RALpH C. WEED

and Mary IT. Weep, His Wife, Petitioners,

vs.

‘THe UNITEp STATEs OF America, Respondent.

Petition for Writ of Certiorari to the

United States Court of Appeals

for the Tenth Circuit —

A. HARRY CRANE

WARD D. MARTIN

ARTHUR L. CLAUSSEN

HARV€Y D. ASHWORTH

RAYMOND L. SPRING

JACK C. McCARTER |,

303 New England Building Q

Topeka, Kansas

Attorneys for Petitioners

aed

*. ©. VER @ cons, TorEas

INDEX

q Pages

NI 6 50-0 epa gs yan ne a os Sk EKs Cee ee ke Ras 4

eee Pe eer ere Eee eee Ree ee ee

Question Presented ........ ery et ey Leer eee er ae 2

Constitutional Provisions and Statutes Involved... ..... 0 3

Statement ......... ie Ghee eG cue ex's Se eirrere SF oe a

Reasons for Granting the Writ...........- acne mee ee: 6

IT a ay Sse ke RAN ORC Rs ok kd oss Ao ea oe 11

ME Sy clare, Sry recs a Pees oe evr ota tare mae

CITATIONS

, Page

Cases:

Armstrong v. United States (1960),

364 U.S. 40, 80 S. Cr..1563, 4 L. Ed, 2d°155%.. 2... 2... 10-

: ; 9 7

Baltimore and Potomac Railroad Company v.

Fifth Baptist Church (1883), 108 U.S. 317,

Os PO ee Bs WR BOO sds es vce ho see 8, 9, 10

Richards v. Washington Terminal Company (1914),

233 U.S. 546, 34 S. Ce. 654, 58 L. Ed. 1088. .<.-. 8, 9, 10

Constitutional Provision and Statutes:

United States Constitution, Amendment Vo 3, 4,7. 10,11, 12

In the Supreme Court

of the United States

OCTOBER TERM, 1962

WituiaM J. Barren and Katie M. Barren, His Wife; Donatp

G. Becker and Opa. M. Brecker, His Wife; Don. T. CAMPreeL

and Lera Mae Camrebe.y, His Wife; Ernest $. Horron and

Marcaret U. A. Hoxton( His Wite; Ivan F. Huns and Berna- |

“‘HOMAS N. LEE and GLapys M. LEE, |

DINE M. Huns, His Wife; .

His Wife; Crype A. Lewis and Dororny L.. Lewis, His Wile;

_¢Epwarp Date Moore and Fay L. Moore, His Wife; Jorn W.

» SrEVENS and VApA STEPHENS, His Wife; and Ratreu C. WEED

and Mary T. WEED, His Wife, Petitioners,

Tue Untrep States or America, Respondent.

Petition for Writ of Cértiorari to the

United States Court of Appeals’

for the Tenth Circuit

Petitioners pray that a writ of certiorari issue to review the

judgment of the United States Court of Appea’s for the

Tenth Circuit entered in the above case on July 10, 1962.

—

OPINIONS BELOW

The original opinion of the District Court for the District

of Kansas tiled February 16, 1961, is unreported and is set out

in the appendix hereto, infra, p. 13. The opinion of the

United States Cott of Appeals for the Tenth Circuit, filed

June 20, 1961, remanding the case to the District Court, is

reported at 292 F.2d 14d, and is set out in the appendix here-

to, infra, p. 19 “The Opinion of the District Court? for the-

District of Kansas, filed October 23, L961, is unreported but

is set out in the appendix hereto, infra, p. 21. The opinion

of the United States Court of Appeals for the Tenth Circuit,

filed July 10, 1962, is reported at 306 F.2d 580, and is set out

in the appendix hereto, infra, p. 27. ‘The Court of Appeals

for the ‘Tenth Circuit rendered no opinion on petition for,

rehearing. ; ;

JURISDICTION

strict of

961, and a copy

_ The judgment of the District Court

Kansas was nifade and entered on October 25,

-thereot 4s appended ‘to this petition in the appendix, infra,

p. 38. The judgment of the Court of Appeals jor the ‘Tenth

Circuit was made aed entered on July 10, 1962, and a copy

thereof is appended to this petition in the appendix, infra,

p. 38. ‘The order of the Court of Appeals jor the Tenth

Circuit denying petitioners’ petition for rehearing was made

and entered on Aygust 9, 1962, and a copy thereof is: append-

ed to this petition in_ the appendix, infra, p. 338. The juris-

diction of this court is invoked under 28 U.S.C. 1254 (1).

QUESTION PRESENTED

The United States of America acquired land immediately

. «4 @ 4 oe °

adjacent to residential property owned by petitioners herein,

on which it built ramps and runways for use by BA7 jet aire

craft. Ina suit brought by petitioners under the Pucker «\et, *

the District Court found that the operation and maintenance

activities carriéd on by the United States on thiy land,«con-

stituted a substantial “interference with the exercise of peu-

tioners’ property rights, and that the eflect of the sound waves

and smoke created by such operations was much greater upon

petitioners’ properties than upon other properties in’ the

vicinity. The court further found that as a direct result of

this interference, petitioners’ propertics have been diminished

in value by. 40 to 55 percent, but that the actions ef the

-UnitedsStates did not eee

the meaning of theeFifth Amendment to the United States

constitution, and hence petitioners’ damages were not com-

pensable. “The Court of Appeals affirmed. The question pre-

sented is: : ,

Whether the action of the United St: tes in directing against

ya taking of property within

and across ,private residential property, loud and ‘continuous

noises and strong vibrations, accompanicd by smoke, soot i

unpleasant odors, so as.to~place upon such private properties

a direct, permanent and iSiaelita burden not substantially :

shared by the general public, constitetes a taking of property ——-—

within the meaning of the Fifth Amendment to the Consti-

tution of the United States.

eee

nas,

CONSTITUTIONAL PROVISIONS AND STATUTES | VED

° ase

This ge? ayy the United States Constitution, Amend-

ment V, sefOut in full in the appendix hereto, infra, p. 12,

and further involves 28 USC, Section 1346. (a) (2), commonly

known as the “Tucker Act,” set out in full in the appendix

hereto, infra, p. 12.

9 . STATEMENT

On July 8, 1959, petitioners tiled an action in the United

States District Gourt for the Dgtrict of Kansas, seeking.

e recovery from the United States to¥ghe taking of their prop-

erty, by virtue of establishment of Wrailitary jet air base on

land immediately adjacent to petitioners’ residen al property.

The action was brought under the Fifth Amendment to the

’ United States Constitution and ‘Title 28, U.S.C., Section 1316

(a) (2), otherwise known as the “Tucker Act“ In the answer

filed by the United States, its fist delense was that the com-

. plaint failed te state-a cause of action for which relief may

be granted. The court reserved its ruling on this defense until

after the trial of the action. Trial to the court was had, and

on the 15th day of February, 1961, the District Court entered

its order dismissing the complaint for failute to state a cause

of action. Fiom this order, petitéoners appealed to the United’

States Court of Appeals, Tenth Circuit, and the judgment was .

vacated and the case remanded to the tmeal court for entry of

judgment, based upon the record facts. “Tlsgt appeal was

docketed as Case No. 6684 in the Court of Appeals. —

Thereafter, the District Court entered its findings of fact

and opinion based upon the record on October 23,. 1961

(appendix infra, p. 21), and entered judgment in favor of the

United States.of America on October 25, 1961 (appendix,

infra, p. 38). The facts as found by the trial court may be

summ: sian as follows: Tis

The petitioners are owners of homes in a small, two-street

suburban subdivision known as Pauline, Kansas, located

approximately six miles sough of Topeka, Kansas. After peti:

tioners had acquired their homes, the United States acquired

property immediately wdjacent for use in connection with the

expansion and re-activation of Forbes Air Force Base, a

former temporary World*’War TE Army airticld, which is now

a permanent Air Force installation’ ( Appendix, afra, p. 21).

The gowt found that immediately adjeccnt to the east of

Paulin®, Kansas Subdivision, the United States constructed a

lamp area, warmup pad and the norta end of a new North. —

west-Southeast runway, all of which are used at all hqurs of

the day and night andon all days of the week in ‘the operation

of RB-47 and B-47 jet aircraft, the new runway being put in

operation in September, 1955, and the warmup pad and 1amp

area being put into operation in March or April of 1956, The

court further found that there are and have been since Sep:

tember, 1955, a total of approximately one hundred (100)

RBA7 and B-Al7 sixengine get aircraft’ and -approximately

forty (40) KC- 97 propeller-driven ancralt assigned to Foibes

Air Force Base; which aircraft’ performed on the’. erage

approximately four thousand (4,000) aircratt movements per

month since September, 1955. The court further found that:

the said: jet aircraft use the new runw ay, designated as 15-31,

almost exclusively With forty-live pete ent. (Ae) of -the jet

aircraft | taking off in a southeasterly direction and titty-tive

percent (556, ) of the jet aircraft taking olf an ane |

direction, The court further found that maintenange activitics

involving the running of jet engines were cond cted on the

new ramp, starting in March or April ol I

infra, pp. 21-23.) ;

The court further, found that during the operation of

RB-47 and B-47 aircraft on the ramp, wartup pad and run-

way, loud noises ‘and strong Vifrations were “ and felt

upon petitioners’ property as a result of the sound, and s)rock

hwesterls

0 ¢ \p pendix,

waves directed against petitioners’ properties have caused the |

windows and dishes to rattle, frequently interrupting conversa ‘4

tions to the extent that at times it was difficult to carry on a

conversation and impossible to talk on the telephone or Ksten |

to the radio or television, and quite frequently imterNipted,

petitioners’ sleep during the night. The court further found

Pe, eo) :

that during the summer months when tlie jet engines use a

water-alcohol injection system and when the wind blows

toward petitioners’ properties from the east, black smoke °

blows across petitioners’ properties, leaving an oily, black

depoyit on the houses, windows and window screens, and the

laundry of petitioners when it is hanging out of doers. The

court further found that this black smoke emitted from the

jet engines has an“unpleasant odor, nor unlike the odor given

olf by a kerosene stove;in a closed room. The court, found

that on a few occasionts, the aircrait: did tly over petitioners’,

homes at low altitudes. Fhe court tound that as a result ot

the activities of the RB-47 and B-47 jet aircraft on anid in the

immediate vicinity of Forbes Atr Force Base, and particularly

on the new ramp and runway, that petitioners suffered a sub- *

stantial interference of the use and enjoyment of petitioners’ -

properucs which did not exist prior t the institution of these

activities, and which depreciated. the value of petitioners’

homes by 40 to 55 percent (Appendix, injra, pp. 24-26).

Alter finding the above facts, the court concluded as a

matter of, law that the petitioners were not entitled to recovery

(Appendix, infra, p. 26). ;

The Court of Appeais entered its order affirming the judg-

mentpot the District Céurt on Juiy 10, 1962 (Appendix, infra,

p- 38): Petitioners filed thicir petition for rehearing before

the Court of Appeals on July 30,21962, and the Court of

‘Appeals entered its orde. denying the petition for rehearing “

on August 9, 1962 (Appendix, infra, p. 38).

REASONS FOR GRANTING THE WRIT’

The decision of the Court of Appeals ghould be reviewed

for the reason that the question pre ented is otte of great

public significance. It is a question passed upon long ago by

this court with relation to similar circumstances arising from

‘a ;

e : ~

the gperation of railroads, but which is now presented for the

first time with reference to the age ot aixcralt and the complex

‘developments which the future holds. By ity decision herein,

the Court of Appeals for the Tenth ¢ Cit uit haX reached «

conclusion directly opposed to the principies established by

this court in the early railroad cases, and has established a

precedent which places in the hands-of the Federal! Govern:

ment the power to make a mere sham of the protection afford:

ed the private citizen by ‘the just compensation clause of the

Fifth Amendment. ’ | ‘

1. There is, perhaps, no emergent problem of the jet age

which has come into.as much discussion in the periodical liter- -

ature as the very problem now squarely presented to this

court. The problem arises from the universally recognized

plight, of the unfortunate mdividuais who have been caught

in. the fringe areas immediately surrounding new jet airliclds.

For these individuals, the impact of the “noise and other by-

products of jet operations has been nothing short of traumatic.

Attempts at solution have been made: noise sup yplessors have

been installed upon aircraft; sound barriers have been erected;

airfields have even been closed to jet trafic. ~The ultimate

satisfactory solution seems not yet to liave been found. Yet

unaerlying the technological developments rapidly occurring

in this new era, there lies a most basic problem in human

rights, as Americans understand these rights. “le courts alone

can decide whether, in the name of benetit to the many, the

Federal Governm&t may cast these new burdens upon -the

shoulders of the very few without payment of just compensa-

tion. This case, for the first time, directly presents that

question, and ‘the lower courts have held that the Federal

Government has that power, and thus the power to make a

mockery of 2 private individual's rights to call his dwelling

place a home. It is respectfully, submitted that this question

should not be laid to est until this court has heard the argu-

ments on a matter of such vital import.

2. The decision of the’ Court of Appeals clearly, abrogates

the principles laid down by this court many years ago in

Baltimore and ‘Potomac Railroatl Company v. Fifth Baptist

Church (1883), 108 Up 317, 2 S.Ct. 719, 27 Lied 739, and Rich-

ards v. Washington Terminal Company (1914), 233 US 546, 34

S.Ct. 654, 58 L.ed 1088. These were cases on ali fours with the

present case, except that those cases involved railroad opera-

tions while the present case involves operation of aircraft.

The Baptist Church case was an action grounded on nuisance

for noise, vibrations, smoke and soot caused by the location

of defendant's engine house adjacent to plaintiff’s church in

Washington, D.C. Defendant claimed immunity based on its

Congressional grant of authority to operate the railroad com-

pany, which contemplated establisiment of a engine house.

The court, through Mr. Justice Fieid, held that such immunity

applied to cases where incidental damages from ordinary na

reasonable operations must be borne by those affected for tlhe

public accommodation. It was h.ld that the use here was

unreasonable, and the court admitted to doubt whether Con-

gress could authorize such a substantial burde¢@ ou private

property without allowing such owners the right” to compen-

sation ior the injuries so occurring.

The Richards case, decided thirty years, later, demonstrated

the unwavering adherence of this court to the same principle.

This was an action for damages to property resulting from

the maintenance of a railroad operation by the defendant com-

pany. The defendant's railroad ran into a tunnel near the

plaintiff's neighboring, though not adjacent, property. An

exhaust fan was constructed to drive the smoke and fumes out

of the tunnel and ‘directed them in such a manner’ that they

came on and across plaintiff's. property. The case arose in

the city of Washingto® where the deiendant operated under

a Congressional grant of authority, ancl was founded by the

plaintiff on nuisance. ‘The Supreme Court there held that

while a legislature may legalize what otherwise would be a

public nuisance, it may not confer immunit, from action for

a private nuisance of such a character as to amount in fact

to a taking of private property for public use.

~ Recognizing this distinction between public and private

nuisance and, following Baltrmore and Potomac Railroad

Company v. Fifth Baptist Church (1583). 108 U.S, 317, 2 S.Ct.

719, 27 L. Ed. 739, the court held that no authority conferred

by Congress would justify an-invasion vi private property to

the extent that private rights were impaired without compen-

sation. “The court further held that no such grant of authority

affected the claim of a private citizen for damages for any

special inconvenience and discomfort not experienced by the

public at large. : 2

This, then, is the very heart and importance of the Richards

case. The court has squarely held that, while no compensation

will be gaonted tor smoke, rioise, fumes and vibrations when

they are sutfered merely as a shared burden with the general

public, compensation for injury caused by these very same

agents must be granted where they cast an unusual burden

upon private property which iy not shared by the general

public. -

In the case now before the court, the Trial Court found.

that petitioners were subjected to many hours of EXPOSUES,

to sound pressure levels coen in excess of those levels QB which?

the Air Tore requires its personnel to wear car plugs (Appen-

dix, infra, pp. 24-25); that black smoke is blown across petition-

ers’ properties leaving oily black soot on their houses, windows

and laundry (Appendix, infra, p. 25); that the smoke carries

with it unpleasant odors. (Appendix, infra, p. 25); that the

petitioners thereby have suffered a substantial interference

with the use and enjoyment of their propertics (Appendix,

infra, p. 25), the effect of which is much greater than on other

property in the general area surrounding the base ‘Appendix,

infra, p. 25).

Poa

Clearly, as powted out in the dissent of Chief Judge Murrah

in the court below! the facts and reasoning of the Bajitest

Church and Richards cases are analogous toethis case. In each

case, the injured party suffers a burden cast upon him by the

concentration of an activity on adjoiming land which made

the effect of the smoke, fumes; soot and noise weigh mu

heavier upon him than upon the general public. In these

circumstances, it is Clear that the burden is not shared, but is

unequally shifted upon the shoulders of the few. Yet in the

case at hand, the. Court of Appeals denies compensation, a

result wholly inconsistent with the dictates of this court: in

Baptist Church and Richards. ats 7

has court has never given any mdtcation of any intent to

vary from the principles applied in Bajtnt Church and Rich-

ards. As recently as 1960, the principle was reattirmed when

the court setd in Armstrong v. United States (1900,. 304 US.

40, 80 8S. Ce. 1563, 4 L. Ed. 2d 1551, at p. 49 of the official

report:

“The Fitth Amendment's guarantee that private prop

erty shall not be taken for a public use without just

compensation was designed to bar government from

forcing some people atone to bear public burdens which,

in all tairne# and justice, should be borne by the public

as a whole.”

In view of the abrogation of this principle by the Court of

Appeals, and the direct contlict of its decision with the prior

decisions of this court, itis submitted that review of this case

should now be had.

3. The final, and perhaps even the most pressing, reason

why this court should review the dec sion of the Court. of

Appeals herein is because of the vast power which this decision

places in the hands of the Federal Government. The Trial

Court has found that as a direct, result of the cevernment .

activities complained of, petitioners’ properties have been

ees, a

diminished in value by 40.8 to 55.5 per ent. If the decision

of the Court of Appeals stands the Federak Government ts

now free, if at desires, to’ condemn petitionet properties at

thes dimimishedgvalue, and thus reap the benefit of the damace

caused by its awn activity. [tis then’able to move its runways

and operations onto the land so acquired, and, by the same

process, diminish the value of the west property and” then

acquire it at a diminished price. Pius process can go on

‘ad ‘infinitum. :

Indeed this same process may now be used for the acqitisi

tion of anv and neeced by the Federal Government, given

only a point from which to start. v

While it is not in any sense the mtent of peLILONers tO

ascribe te the Federal Government any malicious intent or

design to carry cut such a purpose, the poimt is raped to

indicate the tremendous implications of the <—” of the

Court of Appeals. Surely a decision which opene he

such power — a power which virtually makes Shae fotkne

Fifth Amendment right of individuals to past ¢ tee: es ation

merits review and consideration by this court before it toe

comes the law of the land.

CONCLUSION

For the reasons set forth above. a a respectfully subrmoited

that this petition for writ of ceruioiar should be granted

A. HARRY CRANE

a “WARD D. MARTIN

ARTHUR L. CLAUSSEN

HARVEY D. ASHWORTH

Pe RAYMOND L. SPRING

“TACK C. McCARTER |...

303 New England Buildire

Topeka, Kansas

Attorneys for Petitioners

APPENDIX

Consututuional Pio) isions and Statutes Involved:

United States Constitution, Amendment V

“No person shall -be held to amswer tor a capital, or other

Wise Intamous crime, aumltess on a presentment ov medic tment

of a Grand Jury, except in cases arising Tl fam OT hava

forces, or in the Mila, when in actual service in time of War

oy public daneers nor shall any person be subject for the same

offence to be twice put in jeopardy of lite or limb: mor shall

be compelled inv any crimanal case te be a withess against

himself, nor be deprived of life, fibort\, or property, without

due process of Liaw: nor shall private property be taken tor

public use. without just compensation.”

28 U.S.C. Secrion 1546 fa), (2)

» S. B46. United States as defendant

aa ‘Phe district courts shall have original tarisdiction, con

current with the Court of Clams, of:

(2) Any other civil action or Claum against the Unated States,

not exceeding S10.000 in amount. jounded cither upon the

Constitution, or anv Act of CGomgiress. or aux resulation of an

excoutive department, or upon amy oxpross or iniplicd contract

with the United States. Gr for quidated or unliquidated

damuiges in cases not sounding in tort.

Opinions of Lower Courts

Initial opunon of the Distrat Court tor the District ot |

Kansas: ;

FinDINGS OF Fact, CONCLUSIONS OF LAW, AND OPINION,

“Plaintitts instituted this action as a class suit against the

United States seeking recovery for compensation tor a taking

of a part of plainults) property by the Unuted States. ‘Lhe

Government tiled its answer in Which it asked that the com-

plaint be dismissed tor failure to state a cause of action upon

which recovery could be had. Atter the tiling of the answer,

plainutis tiled a motion asking that the legal question raised

by the answer be determined prior to tial. Alter a hearing,

the court overruled the motion and deterred the dete rmination

of the legal question to a later date.

gti al the cause was regularly set for trial and came

on tor heariyg before the un dersigned on December 19, 1960,

plaintitis bebe present in’ persen and by their counsel of

record, and the United States, the delendant, being present

by George Thomas VanBebber and Jorry W. Hannah, Assis-

tant United States Attorneys. [lie case bemy called tor trial.

the Government renewed its motion to dismiss, but since all

the parties and the witnesses were present in court, the court

reserved its ruling thereon and proceeded with the trial of the

case. At the conclusion of the phrinutts’ case, the Government

again renewed its motion to dismiss and also moved for a

directed verdict. Judgment on these motions was reserved. At

the conclusion of the entiie case, the court took the case under

advisement and announced that it would first consider and

determine the legal question presented by the motion to

dismiss and tor a directed verdict, and asked both parties to

submit briets:) The court las considered the briels submitted

and for the reasons hereimatter stated, concludes that the

motion to dismiss should be sustained.

Findings of Fact.

1. Forbes Atr Force Base, first Known as Topeka Army Air

Field, was a temporary World War IL base, which was used

for training activities of propeller type aircraft. It was de-

activated after World War TL. As originally laid out, the Base

was considerably: smaller than it now is. It is sufficient to say

that as originally established, the north boundafy of the field

abutted on a road, running east and west, and known as the

Berivton Road.

In 1948, and prior to the enlargement of the Base, Clyde

Smalley was the owner of a tract of land lying immediately

west of a line extending the western boundary of the Base in

a northerly direction and immediately north of the Berryton

Read extended in a westerly direction, At this time, Smalley

platted this land and laid it out into lots and blocks as a

suburban residential addition. ‘The addition was known as

Pauline, Kansas.

3. Most of the houses owned by the plaintitis in Pauline,

Kansas, were built Uuiing 1949 and 1950, and none were

built after September, 1955. After the Korean War began,

the Govermment acquired the traet immediately north of the

scrmyton) Road and adjoining the Pauline addition oi: its

eastern boundary. This acquisition was tor the purpose of

enlarging Forbes Air Base.

“4. The additional ground Was acquired for the purpose of

constructing longer runways. Situated on this tract were two

long runways, runways 13 and 31. These yunways were con-

structed for the purpose of accommodating jet airplanes which

had not been installed at Forbes Air Base betore this time:

There were also constructed on this new acquisition a ramp

and a parking area and a warmup pad area for the use of jet

planes. These facilities a put into use ‘by the United

States in March or April of 1956, at a time when all the

plaintitis owned their ae involved in this suit.

Since September, 1955, there have been assigned to

Forbes Air Base two RB17 or B47 wings, each wing having

assigned to it an average of 50 RB47 or BA7 jet aircratt. It is

the use of this additicnaléstrip of ground for the operation

of these jet planes immediately opposite plaintiffs property

which gives rise to plaintiffs’ claim for compensation.

< Ra ots ay

6. The Government's motion admits all facts of the com-

plaint well pleaded, and for the purpose of these findings,

the court adopts the facts -as set out in the petition most

_favorable to plaintiffs’ claim.

7. Based upon the complairit, the court finds these facts.

That the plaintiffs were, at all times pertinent, the owners

of described tracts of ground ig Pauline, Kansas, a subdivision,

as set forth in the complaint; that during the summer of 1955,

at a time when the plaintiffs were owners of the described

real estate, the. United States of America constructed an air

force base on land immediately adjacent to the east of: the

Pauline, Kansas, subdivision, a ramp area and a warm-up pad

which are used in the operation of multi-jet aircraft, com-

monly referred to as RB47 aircraft; that the warm-up area

and pad’ area were put into use in the month of September,

1955; that the said ramp area and warm-up pad are adjacent

to-and connected with the north end of the west side of the

northwest-southeast runway of said air force base; that the

RB47 airerait use said ramp area for the purpose of warming

up the jet engines of said aircraft prior to take off; that after

an engine has been warmed up, the aircralt ts then moved to

the Svarm- -up pad area where each engine is advanced to

fnaximum power output; that the advanci ing of said engines,

as aforesaid; is necessary to the operation of the aircraft and

is done without exception every me an aircraft is flown.

8. The court finds that the afreraft, while landing and

taking off from the runway and while Warming up the engines

and particularly while advancing the engines to near maxi-

mum power output on the warm-up pad area, cause to be

heard and felt terrific and over whelming vibrations and sound

waves which are directed and tansmitted from said engines

over; across, against and upon the property owned™by the

plaintiffs herein; that all of the above activities are carried on

at all hours of the day ard might and at all times during the

week. :

9. That the aforesaid vibrations have caused the windows

of the houses owned by ‘the plainufis to rattle, and in some

instances break, have ¢: aused the dishes, glassware and cooking

° a

utensils in the cupboards to rattle and in some instances to av

“crack, and have caused the walls “and wallpaper to become

cracked. : Sein

10. That these sound waves, as set out, have been, ‘sO great

as to prevent conversations in normal tones to be carried on

whether inside 6r outside of thie houses of the plaintiffs, have

_ prevented plaintiffs, their families and their guests from being

able to carry on conversations oF listen. to radio or television

programs and have deprived plainutlS, their families and

guests from their sleep on innumerable occasions, both during

the daytime apd at night.

11. That these vibrations and sound waves have caused the

plaintitfs, their families and others who would occupy their

property, to become nervous and ill, although the plaintiffs.

and their families are in) normal circumstances well and

healthy persons.

12. Plaintiffs’ contentions are that these activities have -

created a servitude upon the property of the plaintiffs and ;

that defendant, by these activities, has appropriated the prop-

erty of the plaintiffs to its use, thereby depriving the plaintiffs

of the use and enjoyment of their prdperty, and. that this )

amounts to a taking without payment of just compensation.

Conclusions of Law :

The court concludes, as a matter of law, that the above

activities do not, under the decisions, amount to a taking of

any part of plaintiffs’ property by the Government, and that,

therefore, the complaint fails to state a,cause of action and

plaintiffs are not entitled to recover.

e . e t

Opinion

The cases which have considered. damage claims arising

from the operation_of military planes ladjacent to residential

property o1 flying over such property: are’ not numerous and

-even more limited are the cases which have considered the

activities*of jet propelled aircraft. In cases of this kind, the

lower courts seem to have consistently denied any recovery on

the theory of a taking for diminution in property value due

to nvises or vibrations resulting from the operation of jet

planes adjacent to private property and where no tly over is

involved.!

Such cases as Baltimore and Potomac Railroad Company v.

Fifth Baptist Church, 108 U.S. 317; Richards vy. Washington

Terminal, 233 United States, 546; and Swetland y. Curtiss

Airports Corp. 55 F, 2d, 201, upon which plaintiffs rely,

would seem clearly distinguish, ible upon the facts, The Filth

Baptist Church case was a suit to abate a nuisance maintained

by the Railroad C company in the manner in which it operated |

its railroad station and yards, While the Richard's case allowed

some recovery, the court clearly held that damages from vibra-

tions, noises, ete., caused by the operation of the railroad

were not recoverable because there had beech no entry upon

the premises which was necessary to constitute a taking. The

Swetland case Was a suit to enjoin the operation of an airport

established by a private corporation on the ground that it

constituted a nuisance. Furthérmore, the weight to be accord-

ed to this case is doubtful in light of the case of U.S. v.

Causby, 328 U.S. 256, hereinafter discussed

2 United States | v. Causby, 528 U.S, 256, is denominated by

the Supreme Court as a case of iirst impression. In this case

a path. of glide of airplanes to the runways of the airport used

by the Government regularly passed over Causl y's property

at a low altitude, destroying the use to which his property

was being put. The court held that this intrusion into the

air space over his property, which of right belonged to him,

constituted a taking measurably akin to an easement for which

compensation was due under the Pucker Act. [t distinguished

the case trom the Richard's case, supra, 253 U.S, 546, in which,

on somewhat analogous facts, reliet was denied on the ground

that there was no entrv.upon Richard's property and that the

noises and vibrations which caused damage to his property

did not constitute a taking. The rationale of (he Calisby case

would seem to be that to constitute a taking there must be

some form of entry upon a claimant's property and that using

the air space over one’s property, which of right belongs to

1 Pope v. U.S., 173 F. Supp. 36; Nunnally v. U.S., 239 F. 2d, ‘521.

him, for the purpose of gliding to a safe landing on the run-

way constituted an entry. .

The operations by the Railroad in the Rithard’s case

created a nuisance. The Supreme Court in the Gausby case

speaks of them as “‘a legalized nuisance.” There is no doubt

in’ the court’s mind but that the operations of the jet plancs

at Forbes Air Base constitute a grave nuisance to pbaintitfs

which result in a substantial diminution to the value of then

property but such operations constitute a legalized nuisance

one which the Government is authorized to maintain gnd for

which recovery’ may not be had under the Tucker Act.

Judgment, in conformity with these views, dismissiay yplain

tiffs’ petition and the cause of action, will be ertered.

Dated at Topeka, K: nsas, this 15tivday of February, ‘1961

‘

Water A, Hux wan

° Judge, Assigned,

Filed Feb. 16, 1961."

‘ a. :

) ‘ \

— o .

Gay

Initial opinion — Court of Appeals, Ténth Circuit:

; . .

PER CURIAM in. ‘ ‘

™ r

= . “The appellants in this appeal are oWners of “resiflential

property adjacent to the ramps and warm-up pads wheré@ mili-

tary raft regularly warm up, take off and land, at

5 es ae Base near Topeka, Kansas. “They brought this

class, action under the Tucker Act (28 USC Sec. 1346 (a) (2)),

claiming thaf the aircraft, while landing, taking off and wart-

ing up, ‘anc particularly while advancing the engines to near

maximum power.on the said warm-up pad area, cause to be

heard and felt terrific and overwhelming vibrations’ ayd soynd

waves, directed’ and transmitted from the said engines over,

across, against and upon the properties owned by plaintiffs;

. that there is also emitted from the said engines exhaust fumes

and heavy black smoke which are directed and transmitted

over, across, against and, upon the properties * * * at all hours

of the day and night, and at all times during the week" to the

permanent injury amd damage to their property. It was

: alleged that the United States had thus creaiced a servitude

upon the property of the plaintiffs amounting to a. constitu-

Q- tional taking for which just compensation is due.

‘The trial court reserved ruling on the Government's motion

to dismiss for failure to*state a claim, and also the motfon to

dismiss and for a directed verdi¢t at the conclusion of the

plaintiffs’ case. “At the conclusion of the entire case, the court

announced that it would first consider and determine the legal

question presented by the motions to dismiss and for a directed

verdict. “The court finally concluded to sustain the motion to

dismiss for failure to state a claim. It oe geo ap to find

and adopt the facts as set forth in the rs m, and concluded

that operation of the jet planes at the Airbase ‘constitute -

xs graye nuisance to the plainuffs which result in a substantial

dimunition in the valué of their property, but such operations

constitute a legalized nuisance — one which the government is

authorized to maintain and for which recovery may not be

= under the Tucker Act.” Judgment was entered accord-

ngly.

oF yf ae

The property owners have appealed, contending that their

injuries Come within the rationale of United States v. Causby,

$28 US. 256. Ordinarily, we should be readily ‘disposed to

decide the legal question on the stated facts. But the United

States, while having moved for judgment on the stated claim,

and the plaintiffs’ case, now, apparently for the first tue,

argues for a remand of the case for the purpose of secdring

jindings of fact and conelusions of law based upon-the Tecord

‘acts. Lhe argument ts to the effect that mew and tar reaching

constitutional questions like this should mot be made to turn’

wpon what is merely claimed, but. rather what is proven, as a

q Pasis fgr the judgment of the court. ;

We agree that the case docs present a vastly important

question whether the acts complamed of amount to a cornsit

tutional taking within the meaning of the Fitth Amendment.

And, we also agrce that the question ought to be resolved on

the established facts. In these /circumstances, the court is

disinclined to ‘make disposition of the case on the bare aver:

ments of the complaint. :

The judgment is accordingly vacated and the case is re-

manded to the*trial count for entry of a judgment based upon

the record facts.”

JS |

, ae

Opinion of the District Court for the District of Kansas

on remand: ;

Findings of Fact.

“Pursuant to the v,andate of the Circuit Court of Appeals

in the above entitled cause, the court makes the following

findings of fact based upon the record. ;

1. This action was instituted as a class action by plaintiffs

against the United States. The gist of the action is that the

activities of the United States, hereinafter set out, have created

a servitude upon plaintiffs’ property amounting to a constitu-

tional taking for which compensation is due and unpaid. ‘The

court has jurisdiction of the parties and of the subject matter.

Jurisdiction is predicated on 28 U S.C. A: Sec. 1346 (a) (2)—

The Tucker Act. 2

2. Forbes Air Force Base, firs. known as Topeka Army Air

Field, was a temporary World War II base, which was used

for training activities of propeller type aircrafts It was de-

activated after World War II. As originally laid out, the Base

was considerably smaller than it now is. It is sufficient to

-say that as originally established, the north boundary of the

field abutted ry a road running east and west, and known as

the Berryton ‘Road.

3.-In 1948, and prior to the enlargement of the Base, Clyde

Smalley was the owner of a tact of land lying immediately

west of a line extending the western boundary of the Base in

a northerly.direction and immediately north of the Berryton

Road extended in a westerly direction. At this time, Smalley

platted this land and laid it out into lots and blocks as a

suburban residential addition. The addition was known as

Pauline, Kansas. Most of the houses owned by the plaintiffs .

in Pauline, Kansas, were built during 1949 and 1950, and

none were built after Séptember, 1955.

4. After the Korean War began, the a acquired

the tract immediately north of the Berryton Road and adjoin-

ing the Pauline addition on its eastern boundary. This acquisi-

tion was for the ] purpose of enlarging Forbes Air Force Base

to accommodate jet! airplanes. The additional ground was

re ~22 .

acquired for the purpose of constructing a new ang longer

runway. A new runway designated as 13 and 31 Was con-

structed and put into operation in September, 1055, for the

purpose of accommodating the RB-47 and B-47 jet aireratt

Which had not been stationed at Forbes Air Force Base prior

to that me. There was also constructed on the land acquired

by the United States a ramp and parking area and a warm-up

pad area for the use of jet planes whith were put into opera

tion in March or April, 1956. The western edge of the ramp

and parking’ area is approximately 650 feet from plaintiits’’

closest homes on Like Drive. The ramp itseli is 900 #ect wide.

5. (a) There arg, and have been since September, 1955, a

total of edlleals 10 RBI and Bi7 sinengine jet

aircraft, and approximately 40° KC-97) six-engine -propelier-

drivery alicratt, assigned to Forbes Air? Force Base. ‘Vhese air-

crattvhave pertormed on the average of approximately 4,000

“aircraft movements” per month since September, 1955. Ap-

proximately 70°, of the said aircraft movements are attribute.

to the RB-47 or B-47 aircraft. An aircrait movement includes

a take olf, landing or low approach.

‘ (by) Aircralt movements occur primarily between the hours

of dawn and dusk, Mondays through Fridays, but also occur

on some occasions on weekends and throughout the nigtits.

Tie aircraft movements increase at night during the suinmer

montis, Aircraft movements at Forbes Air Force Base may

occur, and have occurred, at any hour of the day or night on

any day of the week. ‘

(¢) RB-47 and B-47 jet aircraft: use the runway designated

as 13-31 almost exclusively other than“emergencics, and engine

operating procedures by these aircraft art the same whether

taking off on this runway in a northwesterly or a southeasterly

direction. Approximately 45°; of the jet aircraft take off in

a southeasterly direction, and 55, take off in a northwesterly

direction. ;

(d) RB-47 and B-47 jet aircraft engines are started on the

parking ramp 30 minutes prior to take off time. Approxi-

mately 20 minutes prior to take off time, the aircraft is. taxied

to the warm-up pad, which is approximately 2000 feet from

plaintiffs’ nearest “property, where final pre-flight checks are

. f

23 | |

performed. All during this period of time, the aircraft has all

Six engines Operating at 40°; which is idling speed. ‘Three

minutes belore the take off, thy aircraft is lined up on the

end.of the runway for take off and 30 seconds betore ta‘’.e off,

the power on all six engines is advanced to 160°, RPM or

maximum power output. Lhe take off point is 2000 feet

from plainutfs’ property at the closest point to plaintiffs’

property. At take off time, the brakes are released and the ~

aircraft begins its take otf roll, leaving the ground, ander

normal conditions, about 50 seconds thereafter with engines

still operating at maximum power output.

(e) From April through October, a water-alcohol injection

system is used which increases the maximum power output by

23¢,. A trail ot black smoke is characteristic of the engines

of RB-47 and B-47 jet aircraft, and with the use of the water-

alcohol injection systemethis black smoke is increased and. is

quite heavy for approximately 70 seconds after brakes haye

been released for take off, the smoke being exhausted within

a‘mile from the end of the runway. ee

(f} The operation of the engines at masamum power output

is. not performed in the normal ihght nor in the “traffic

pattern around Forbes Air Borée Base. Jet engines are oper-

ating at maximum powér output on that part of the new

runway 13-31 situated closest to plaintilts’ properties in all

take offs, without regard to whether the take off is in a north-

westerly or a southeasterly direction.

(g) The Pauline Subdivision is outside the flying pattern

of all aircraft operating from Forbes Air Force Base, and the

Government does not claim or exercise any right to fly any

planes over plaintifts’ property. However, on a few occasions,

RB-47 and B-47 jet aircraft did fly directly over plaintiffs’

homes in Pauline, Kansas, Subdivision at lo® altitudes,

6. (a) The normal work dayesfor maintenance personnel at

Forbes Air Force Base is from %gt5 A.M. to 5:15 P.M., but

that maintenance activity is sometimes carried on at night.

Maintenance activity at Forbes Air Force Base involving the

running of jet engines may occur, and*‘has ocgurred at any

hour of the day or night on any day of the week. P<

(b) Maintetiance activity involving the running of jet

° . » ~ -

engines at power setting of from 50°, to 10+, ts conducted

en the new ramp which was put into operation in) March or

Apuil of 1996, 5.220 feet from: plaititts’ property. Simee May,

1960, this operation has been removed to a place approx

niitely one and one-half miles from: plaintitly: property. |

©) During the month of March, 160, which may be deem-

edo a typical month for maintenance activity, there were SI

hours of B47: and RB 47 jet engine runing time in’ the

100°) RPM range for maintenance purposes only. In) addi

tion, there were, during the same month, 211 hours and 20

minutes of Bel7 an@ RB-17 jet engine running time in the

below 100°, RPM range for maintciance purposes only.

_-— These figures reflect only maintenance on the new tramp and

—

were performed S420) feet) svutheast of plaintiffs’ nearest

property. ” ;

(d) Auxiliary ground power unity or generators are fre:

quénily and commonly operated on the aicatt parking ramp

and are used to provide auxitiary power for the starting of

RB 17 and Bel7 jet aireraft, and for recharging the batteries

thereon, Quite commonly, there are from four to ten of such

generators running at one time and it is not-unusual for these

generators to be running from 8 to LO hours at a time dur-

ing the daytime and occasionally at night. .

7. Loud noises and strong vibrattons are heard and _ felt

upon plaintiffs’ properties as a result_of the sound and shock

waves directed against and across jFfinititts properties from

the jet engines in operation on the new ramp and runway

and warm-up pad at Forbes Air Force Base. These vibrations,

at times, cause windows to rattle and dishes to rattle in the

cupboards, and limit the plainults’ use and enjoyment of

their property in that conversations are lrequently interrupted

to the extent that it is, at times. difficult to Carry on a con-

versation, It is, at times, impossible to talk on the telephone

or listen to the radio or television. Plaintuifs’ sleep is quite

frequently interrupted by the operation of said jet aircraft

at night.

8. That the sound pressure level on plaintiffs’ properties

as measured in decibels, as far as the LOU), RPM range which

‘is the maxynum power output of said jet engines either on

25 -

take off or in maintenance activities ranges trom 90 decibels

to 117 decibels. Ear plugs tor Air Force personnel are recom-

mended when sound pressure level, as measured in decibels,

reaches 85 decibels, and are mandatory when sound presstire

level, as measured in decibels, reaches 05 decibels

9. During the summer months, when the wind blows toward

plaintilfs’ properties from the east, black smoke will, on occa-

sion, blow acioss plaintiffs’ properues trom jet aircraft taking

olf trom the new runway. This black smoke leaves an oily

black deposit on the houses, windows and window screens of

plaintifs’ property, and “upen the lowndry of the plaintitts

when it is hanging out of doois. The black stnoke has an

unpleasant odor not unlike the odor given off by ackerosene

stove in a closed roorn.

10. As a result of the activitics of the RB47 and b-47 jet

aircraft on and in the immediate vicinity of Forbes Air Force

Base, and particularity on the new ramp and runway, plaintitts

have suitered a substantial interference of the use and enjoy-

ment of their properues, which interference did not exist

prior to the construction and .ctivation of the new runway in

September, 1955, and the new ramp in March or April, 1956.

Il. The sounds emitted from the jet aircraft — ations at

Forbes Air Force Base are heard generally thpoughout the

area surrounding the Base in addition to plaints property,

and includes as well other commercial and residential prop-

erties in Pauline and the general vicinity. The effect of the

sound waves and the smok« produced by the jet operations,

insofar as the Pauline Subdivision is concerned, is of the same

character as that noticed in varving degrees in the general area

urrounding the Base. Lhe ditlerence being that because of

he proximity of- plaintiffs’ property T the operations, the

effect of these things are much greater upon their property

than on any othe: property tarther removed from the Base

or the operations. -

12. The court finds that the value of plainulfs’ property.

described in the complaint, betore and after the institution

of the jet operations, is as follows:

Don T. Campbell and

Leta Mace Campbell: Betore — $15,250

ar Atter — 7,500

krnest S. Horton and :

Margaret U.S. Horton: betore — SP2.000

: Alter 7,000

Ivan F. Huhs and

Bernadine M. Huhs: Before — $12,500

° Alter 6.00

—— feb W Stephens sind ;

Vada Stephens: before — 812.000

After — 6,500

William J. Batten and

Katie M. Batten: Bedore SES 900

Alter 7.100

Themas N. Lee and R

Gsladys M. Lee: Betore — SP2.290

Miter ~~ 7,00

Civde A. Lewis and

Dorothy L.. Lewis: Before — STE O00

Alten . 500

Ralph ©. Weed and ot

Mary 1. Weed? > Before — S13.500

Atter 6.500

Donald G. Becker and %

Opal M. Becker: Before -STt500

Atrer 6.00

Kdward Dale Moore and

have L.. Moore: Before SPES00

After — 6,800

Conclusions of Law

» ‘The court concludes as a matter of law that, based upon

the above findings, under the decision of the Supreme Court

in United States vo. Causby, S28 US. 296. plamtitis are not

entitled to recover.

Judgment will be entered for the Government for its costs.

% = /s/ Warrier AJ Elexatan

Jtdcé Assigned.

Filed Oct. 23, 1961."

Final opinion of the Court of Appeals, Tenth Circuit:

“Before Mcrran, Chieti judge, and Lewis and Breiten-

STEIN, Circuit Judges.

BREITENSTE!N, Carcutt Judge.

This case piesents the novel question whether a taking of

property, compensable under aed ang Amendment, occurs

When there is no physical invasiott of the altected propgrty

but the operation and maintenance of milttary jet aircratt on

an Air Force Base of the United Statics produce noise, vibra-

tion, and smoke which intertere with the use and enjoyment

of the property, The appellants plaitiits, owners of 10 homes

at Pauline, Kansas, sued the United Siates under the Tucker

ct! and base their claims on the use of jet aircrait at Forbes

Air Force Base which adjoins the subdivision in which they

live. They acquired their homes prior to the enlargement

of the Base to accommodate jets. Recovery was demied on the

ground that there was no taking of property in violation of

the Fifth Amendment for which the United States was lable

under the Lucker Act.?.

The tacts are not disputed.. Forbes Air Forée Base, origin-

ally known as! opeka Army Air Field, was a temporary World

War IL base used’ for training in the opesation of propeller-

driven aircratt.« It was deactivated at an undisclosed date

prior to 1998. Tn that vear a tract, the southeastern corner of

which adjomed the northwestern corner of the Base, was

platted as a esidential subdivision. The homes of the plain-

tiffs were built and acquired an the period 1919-1955. After

the Korean War started the United States obtained land adja-

cent to the subdivision on the eas. to enlarge the Base for the

accommodation of jet aircraft. .Use of a lengthened runway,

128 U.S.C. Sec. 1346 .a) (2). The United States District Court had

jurisdiction because each claim was for less than $10,000,

2The Tucker Act provides, 28 U.S.C. Sec. 1346 (a) (2) that an

action may be maintained against the United States for a claim

“founded * * * upon the Constitution, * * * or upon any

express or implied contract with the United States.” The last

clause of the kiftth Amendment reads: “nor shal! private property

be taken foF public use, without just Compensation.”

€ 28

C3)

known as 13-31, began in September, 1955, and a ramp, park-

ing area, and warm-up pad for jet planes"were put into opera-

tion in the spring of 1956.

Since the enlargement of the Base, about 100 RB-47 and

B-17 six-eneine jet aircraft and about 40 KC-97_ six-engine

propeller-driven aircraft have been located there. Aircraft

movements average about 4,000 monthly or about 130 daily

and of these 70°, are atuibuted to jets. This activity occurs

dsually between dawn and dusk, Monday through Friday, but

occasionally on the week ends and at night.

The plaintiffs do not rely on flights over their properties

to sustain their claims. The trial court found:

‘The Pauline Subdivision is outside the flying pattern

of all aircraft operating from Forbes Air Force Base, and

the Government does not claim or exercise any right to

. fly any planes over plainults’ property. However, on a

few occasions, RB-47 and B-47 jet aircraft did tly directly

over the plaintitts’ homes in Pauline, Kansas, Subdivision

at low altitudes.’

The jets use the 13-31 runway almost exclusively. The

operating procedure is for the engines to be started on the

parking ratnp about 30 minutes betore take-olf. “The ramp is

900 feet wide and at its nearest point is 650 feet from any

property of the plaintiffs, After about 10 minutes the plane

is taxied to the warm-up pad, located 2,060 feet from the

nearest property of the plaintiffs, where final pre-flight checks

are performed, During this period all 6 engines are running

at idling speed. “The plane is then moved to the take-off point,

About one-half of the flights begin at the end of the 13-31

runway near Pauline and at a point 2.280 feet trom the nearest

property of the plainuffs. About 30 seqonds before take-off

the engine power is advanced toamaximum output. The planes

ate airborne some 50 seconds after start. -

From April through October a wateralcohol injection sys-

tem is &scd to increase the maximum power by 25¢;. The

RB-47 and B-17 jets leave a characteristic trail of black smoke

which is increased by the use of the water-alcohol injection

system and which is quite heavy for about 70 seconds after

uae - 89

the brakes have been yeleased for take olf but which is ex-

hausted within a mile from the end of the runway.

Maintenance work on the planes was done on the ramp

3,420 feet trom thee nearest property of the plaintiffs. until

May, 1960, when it was moved to a location about 114 miles

therefrom. In the maintenance operations jet engines are run

at power settings of from 50°, to 100°,. During a typical

git the engines were operated for 84 hours in the 100‘;

RPM range and-for 211 hours in less than that range, for

a maintenance purposes, . :

Ground power generators are used on the parking ramp to

provide auxiliary power to start ,the jcc engines and to re-

charge the batteries of the planes. From 4 to 10 of these

generators may operate at the same time and on occasion they

run trom 8 to 10 hours at any time during the day and some-

~ times at night.

The mentiotied activities produce sound and shock waves

which cross the plaintiffs’ propertics and limit the-use and

enjoyment thereof. Strong vibrations cause windows and

dishes to rattle. Loud noes frequently make conversation

and the use of the telephone, radio, and television facilitiés

impossible | and also.interrupt sleep. During engine operation

‘in the 100°, range tye sound pressure level measured in

poise! varies from 90 to 117 decibels ®n the plaintifts’ prop-

erties. Ear plugs are recommended for Air Force personnel

when the sound pressure level reaches 85 decibels and are

required at.or above 95 decibels.

In the summer months when there is an “easterly wind, the

black smoke developed during jet take-offs occasionally blows

across the plaintiffs’ properties leaving an oily black deposit

on the -houses and laundry of the’ plaintiffs. 6

The court found that: : 4

‘

* * * plaintiffs have suffered 4 substantial" inter-

ference of the use and enjoyment of their properties,

which interference did not exist prior to the construction

-and activation of-the new runway in September, 1955,

and the new ramp4n March or April, 1956.’ ai

‘ co ’

The court further found that such interference ‘is of the

same character as that noticed in varying degrees in the

“

30 °

general area surrounding the Base’ with greater adverse clteet

on the plaintitts because of the proximuty of their property

to the Base. +

Diminution inv, Hue of the LO homes was found in amounts

which varied trom S#700 to SS8seQ. dhe tial court deemed

United States v. Causby, S28 U.S. 256, to be a contiolling

precedent and*held that there was no taking of am interest

in the plaintifts’ propertics flor Which @compensation had to

be paid, ‘

The case at bar is one of first impression in the federal

appellate courts and presents an issue of widespread current

Interest. Phe yet aiplane is a great boon to the traveler but

@ veritable pl gue to the Rome: AYeDS Meu an alrlield. Phe

noise, Vibration, and smoke inc idental to the oper. won and

myintenance of jet planes disturb the peace and quiet in every

residential area Ticated near an abport uscd by the jets. Lhis

disturbance is felt not only hy those whose property iy crossed

by the planes on take offs or landing tbuicalsa by those who

live outside olathe established tight patois. Phe Supreme

— Court has allowed recovery under the Lucker Act to a land-

owner Whose property was crossed by tow elevation tlights

of military planes on takgolls and landings, “The ndveliy in

the ‘instant case is that liability is osserted not because of dis-

turbance in conjunction with any over tights but because of:

the noise, vibration, and smkbe alone which harass the OCCUr

pants reat nearby pryperies, Phe amount of Thagissment varics

With the proximity of the Posey to the scene of jet opera-

thons.

No amount of sympathy for the oT landowners can

change the legal principles ays tic able to their claims, We do

not havesesther a tort ora mubsance c. i Phe platatifts sue

under the Lucker Act and whether the applicabilit v of that

Act depends on a taking without ieahpcwaicn in violation

of the FiTh Amendment or on an implied promise to pay for

property taken, qe chams are founded on the prohibition of

8Stated in terms of per entays the diminution in value ranged

from 55.56% to dss

*Unided States vo Causby, supra, Sce abo Grigas vo Alfeaheny

County, 369 U.S, 84. '

31: :

_ the-Fifth Amendment, ‘nor shald piivate po be taken

for public use without just compensation.”

In construing and applying: this constitutional provision the.

federa) courts have long and Consistently recogriized the dis-

tinction hetween a taking and consequential dimages. In

‘Transportation Company v. Chicago, 99 U.S. 635, 642, the

Supreme Court held that governmental activities which do not .

directly encroach on private property are not a taking Within

the meaning of the Fifth Amendment even though the ¢on-

sequences of such acts may impair the use of the property.

The principle was repeated in United States vy. Willow River _

Power Co.,-324 U.S. 499, 510, the Court saying that ‘damage

alone gives courts no power to require compensation.” We

have recognized the rule in this circuit by our holding in

Harris v. United States, 10 Cir., 205 F.2d 765, 767, that-under

the federal constitution ‘damages to property fic* taken are

~ compensable only as a conseguence of or incidental to an

actual taking.’ j

Because of this rule which denies the recovery of conse-

quential damages in the absence of any taking, many state

constitutions provide in substance that private property shall

not be taken or damaged for public use Without compen-

sation.® However, the federal obligation. has not been so

enlaged either by statute oi by cofistitutional amendment.

In Causby the Supreme Court held that the continuous

invasions of the airspace superadjacent to the property of the

landowner by military ; lanes taking off and landing ata

nearby base was ‘in the same category as invasions of the

surface’ and that the damages were not ‘merely consequential’

but ‘the product of a direct invasion of respondent's domain.”?

The plaintiffs argue that the actual damage in-Causby resulted

from noise and vibrations and that if recovery is pérmitted

‘oe

5 United States: v. Dickinson, 331 U.S. 745, 748.

® Richards v. W ashinfton Terminal Company, 23% U.S, 546, 554.

In 2 Nichols on Emine nt Domain (3d ed. 1950) Sec. 6.44, pp.

324- 325, there is a list of 25 states whose constitutions so provide,

Interestingly every state within the Penth Circuit, except Kansas,

has so provided. > :

7328 U.S, 265: ‘

\ oe >

en $2

. for sound and shock waves traveling vertically, itpshould algo

be Wlowed for such waves sraveling laterally. ‘Lie une

ability of this theory was demonstiatcd in Nunnally v. United

States, 1 Cir, 299 22d 526, where recovery was denied because

of dimiawtion uf value ef a recreational cou ge by practice

bombing op an adjoinfag federal proving ground. Phe Fourth

“ Cinenit pointed out that there was no pliysical invasion of the

phanott’s property and that there was at the most a ‘sh@ring

ingthe common urden of incidental damages because the

annoyance was the same as that to which evervone living in

: vicinity was subject in varving degrees. Lhe court: said

Vi permit recovery would. be to obliterate the carefully

preserved distinctio€® between ‘damage’ and ‘taking.’

We are cited to no decisions holding chai the United States

is liable for noise, vibration, or smokeswithoutva physical

invasion. In Causby, Griggs, and a number at lower court

decisions such as Highland Park, Inc., v. United States, CrCl...

161. F.Supp. 597, Herring v. United States, Ciel, le2 F.Supp.

769, and Matson v. Ufiited States, CaCl, 174 F.Supp. 283,

there were regular flights over the property) Absent: such

physical invasion recovery has been unilormly}denied.. s «

> * Plaintiffs cite no casedewith either tacts or iysucs analogous

to those with which-we are concermneds Richards|y. Washington

Terminal Company, supra, allowed recovery because smoke,

and fumes were driven out of a tannel by aw ¢xhanec tan in

— such manner that they were directed across plainuit’s prop

-erty, but in so doing expressly rccognived the fmvagion prin

‘ciple. United States v. Cress, 245 U.S. S165 and hea States

v. Kansas City Life Insurance Co. S39 US. FSF casey of

flooding and underilooding respectively; applicd the same

priftiple. Swetland v. Curtiss Airports (orporavion,6 Cir,

*See Freeman v. United States, DCAW.DLOKL 467 B.Supp MO,

wherein tbe flights were alongside the planiwtillls land. in Pope

v. United States, DICN.D. Pex. 173 b.Sapp. 36, the complaint

was based on the operition af an engine tose ceil ly ihe Na

Force and it was held (hat there wes no taking because the test

cell did not cnaveach on the plaintutt’s land. Naclear detomations

by the Atomic Energy Commission at a site; teomoved: trom: the

plaintiil’s property was held not to be a tekine in Bartholomae

| Corporation v. United States, 9 Cir, 255, bed 16, F1S, note 2.

—

5°F.2d 201, was an action to enjoin a private nuisance and

the décixion. rests on the theory of balance of conveniences. —

In Armstrong v. United States, 304 U.S. 40, 18, the Court

held that the total destruction of a lien was a compensable

taking. Baltimore & Potomac Railroad Company vy. Fifth

Baptist uch, 108 U.S, 317, 332, sustained a recovery ‘by a

church or a nuisance created by a railroad operating in the

Digu..t of Columbia. under congressional authorization and

the Court expressed’ doubt that such authorization would

justity total deprivation of use without Compensation. In dis-

cussing the -incaning of the word “taken,” the Court said in

United States v. General Motois Corp., 323 U.S. 3735 378,

that governmental action short ol occupancy’ was a taking

‘it hg ettects are so complete as to deprive the owner of all

or most of Ins interest Jn the subject matter, bs

In the mostant case ag is no total “destruction and no

depriv. ation ol ‘alt or most’ of the plaimuiifts’ interest. The

plauntitis *do not sugeest that any liome has been made un-

inhabitable er that any plaigtilf has moved because of the

activities at ine Base. The record shows nothing more than

an interterence with use and cnjoyment.

Congress @s placed the navigable airspace in the public

domain and has authorized administrative regulation, of mini-

mum altitudes of flight!" Lhe regulations so"far as pertinent

fin the minimum alitudes at 1000 feet over congested areas

and 500 over sparsely, populated areas.) The airspace below

such munimamys is within the dominion of the landowner.

The over-flighis consideyged in Causby invaded that dominion.

In the situation confronting us the waim-ups occur 2,000 feet,

the takeoffs 2,280 feet, and the maintenance 1i4 miles from

the nearest property of the plaintitts. Causby contains nothing

indicating that recovery could be had for noise, vibration, or

smoke coming from the same vertical distances.

— . : :

9CE United States v. Dickinson, supra, where the Court. said:

‘Property is taken in the constitutional sense when inroads are

made upon an owner's use of it to an extent that, as between

private parties, a servitude has been acquired either by agree-

ment or in course of time.” ,

1° 49 U.S.C, Secs. 1301 (24) and 1348 (a). -

“114° C.F.R. Sec. 60.17.

fd ho

kach of these disturbing conditions is brought rote plain-

tids) propertics thiough the air und es dv not’ etiect an

actual displacement of a landowner fom. space within which

he is enuthed te exercise dominion consistent with recognized

concepts Ol real property rights. Such displacement is a fact

When occasioned: by repeated airplaic flights. Sound waves,

shocs waves, and smoke pervade property neighboring that

on which they have their soti¢e bui the distur bance caused

thereby is only a neighborhood inconvenience unless they are

intentionally directed to some pi articular property as was, the

» case in Richards v. Washington Vermin?) Co.. Supra, Or ulgless

they force the abdication of the use of space within the land-

owner's dominion. The’ activities at which tie plaintifts

complain are not directed against them or their ploperty and

do not arrogate to, the government any of the plaintiffs’

dominion over their properties. “Phe situation is common to

that found on ajl the private property surrounding the Base.

‘Lhe vibrations which cause the windows and dishes to rattle,

the smoke which sblows into the homes during the summer

months when the wind js trom the east, aud the noise which

inte: rupts ordinary home activities do interfere with tye use

and enjoyment by the plaintilts of their properties. Such

interlerence is not a taking: Thre damases are no more than

a consequence of the operations of the Base and as said in

United States v. W4allow River Powef Co., stfpra, they ‘may

be compensated by legislative authority, not by force of the

Constitution alone” As we see the case at bar, the distinctions

which the Supreme Court has consistendy miade between

‘damages’ and ‘taking’ contol and compel denial of recovery.

Affirmed.

Mvrrau, Chief Judge, dissenting. ,

0 . a

‘Tt is agreed that subsequent to the establishment of the

homes of these plaintills, the Government constructed these

runways and warneup pads nearby, lor yet Pnzine operation,

and that, 4s a 1 direct result of Chis opeiation, the ‘plaintitts

have sufdercd a substantial interference ef the use and enjoy-

diminution of the values of such properties. It seems also

agreed fhat the right asserted, ie., the peaceful enjoyment of

their homes, is <a- ‘constitutionally protected property right,

and that the admitted injury to such right is peculiar 0 these.

plainutts, who are similarly situated. In any event, ‘the con-

stitutional provision ‘is addressed toevery sort of interest the

_citizen may possess,’ (see United States vy. General Motors,

323 U.S. 373) and certainly includes the right to the peaceful

possession of residential property. “Lhe economic intérest

asserted here, is no different from’ that ‘taken’ in Causby~

and Griggs.

Both the trial Court and this Court have denied compensa-

tion, upon the premise that an actual pliysicai invasion of ‘the

property damaged is a sine qua non to a constitutignal taking,

and the injury is, therefore, merely consequential; hence, not

constitutionally compensable. It is my thesis that g constitu-

tional taking does not necessarily depend on whether the

Government physically invaded tlre property damaged.

It is tue that, in the very nature of things, most constitu-

tional takings are accompanied, by actual physical invasion.

See ‘Transport. ition Company v. Chicago, 99 U.S, 635; Penn-

sylvania Coal Co. v. Mahon, 260 U.S. 393; Portsmouth Harbor

‘Land & Hotel Company, et al v. United States, 260 U.S, $27;

United - States v. Gertieral Motof§, supra; United States v.

Causby, $28 U.S. 256; United States v. Dickinson, 33L-¥.S.

745; United States v. Kansas City Insurance Co,, 339 U.S.

799; Griggs v. Allegheny County, 569 U.S. 54; and, Nunnally

v. United States, 255 F.2d 521. But, the Government may

surely accomplish by indirect imerference, the equivalent of

an outright physic al invasion. ‘If the regulation (interference)

goes too tar, it will be recognized as a taking.’ Pennsylvania

Coal Co. v. Mahon, supra, p. 415. Thus, a ‘taking’ was etfected

in Armstrong v. United States, 364 U.S. 40, by the destruction

of the liens on property through governmental acqtlisition of

title. The closing of a gold mine, by force of a wartime gov-

ernmental regulation, without physical invasion was held not

to®be a constitutional taking in United States y. Central

Fureka Mining Co., 357 U.S. 155, but not wethout recognizing

that ‘action in the form of regulation can so diminish the

value of property as to constitute a “taking”.” There was force-

; .

> *. . 6

owners right to compensation turn on the pliysical act of.

taking, was t® ‘permit technicalities of form to dictate con-

sequences of substance.” (See Mr. Justice Harlan’s dissent, p-

IST.) Te is adiiitted that the-compensable damage in Richards ,

V. Washington Perminal, 233 U.S. 516, was aot accompanicd

by an actual invasion, though the case is said to Nave been

decided on the invasfon theory. “Phe facts and reasoning there

_are.analogous to our situation, and scive to prove the recogni-

tion of a constitutional taking by indirect interference.

As T view the precedents, especially in the context of their

contaricty, the decisional process invelyes an analysis and

evaluation of competing interests, ic, the public versus: pri-

vate, within the framework of our social cider — a jurispru-

dence of interest, if you please, im which the State LIN poses

its will, subject only io the constiietional covenant that it

wil pay “just compensation” for “private property” which is

‘taken. ‘The critical and detinitive words are. to. be suie,

constitutional language. which, ay we Know, are subject. to

forgagtlations, depending uponsa point of view. We start with

the agreed proposition that not every goverpmental interier-

ence, which adversely atleets a privaic economic interest,

amourts to a constitutional taking. See United States v.

Willow River Power Co., 324 U.S. 498: Armstrong v. United

States, supra; and, Nunnally vo United states, supra. ‘Prustra-

tion and appropriation are essentiallysditfercat things.’ ‘Omnia

Company v. United States, 261 ULS. 502. As I reasons the

constitutional test in each case is fist, whether the “asserted

interest is one which the law will protect; if so, whether the

interference is sufficiently direct, sufficiently peculiar, and of

sufficient magnitude to cause us to conclude that fairness and

justice, as between the State and the citizen, requires the

burden’ imposed to be born by the public and not by the. -

individual alone.

Indeed, my brothers impliggly embrace this theory when

they indicate that if the governmental interference in. this

case had rendered the plaintiltsy’ home totally uninhabitable,

the damages would have been compeusible, as for aggonstitu-

tional taking. But, they then say, that since there is ‘nothing

more than sii pce with use and enjoyment’ of the

”

property, the admitted damages are merely ‘consequential.’

This leaves me in doubt as to whether compensation is denied

because tlie-interest asserted is not one which the law will

protect, as in United States v. Willow River Power Co., supra,

or whether the interference with a protectable property right

was not sufficiently direct, peculiar and grave to justify a

conclusion of ‘taking.’ If the decision is based on the latter

premise, 1 must inquire at what point the interference rises

_to the dignity of a ‘taking?’ Is it when the window glass

qgattles, or when it fallsQout: when the smoke suttocates the

inhabitants, or merely makes them cough; when the noise

makes family conversation difficult, or when it stifles it

entirely? In other worgls, does the. ‘taking’ occur when the

property interest is totally destroyed, or when it is substan-

tially diminished?

My point of view leads me to conclude, contfary to my

brothers, that the interference shown here was. sufficiently

substantial, direct and peculiar to impose a servitude on the

plaintiffs’ homes, quite as effectively as the over-flights in

Causby and Griggs, and the smoke and gases in Richards. I

would, therefore, hold the damages constitutionally compen-

sable.”

€

_heretotore entered ‘in the above entitled case.

Judgments and Orders

Judgment of the District Court tor tg Distiict of Kansag:

“Journal Entry of Judgment.

Based upon the findings of fact and conclusions of lay

Ir Is, By THE Courr, Consipexip, Oxptrip Avp ADIUDGED

that plaintitls take nothing and that. judgment be, and it. as,

hereby entéred an favor of the dclcwt.uit,ethe United States

of America, and tor It} Costs. ,

Dated at Popeka, Kansas, this 2tth day of October, 1961.

’ /s/ Water A. HUxXMAN

Judeec Assigned,

Filed Oct. 25, 1961." -. :

‘ o

Judgment of the Court of Appeals, Lenth Circuit:

: “Judgment -

Second Day, July Term, ‘Tuesday, July 10th, 1962

Before Honorable Albeed Po Maaieh. Cliet Judee, and

> ; 1 3 us ’

Honorable David 1. Lewis and KPanoiable Jean So Bremen

stein, Carcuit Judges.

bliis. Canse came oon to be heared an the transcriot of the

o i

. a be Riera o

record trom: the United States Discact Court for te District

of Kansas and was argicd by counsel,

On consideration whereof, it is oft eied and adjudged. by

this court that the judgment of the stid district court in this

cause be and the same is hereby atlirmed.” -

; - ' al

Order of the Court of Appeals, “kenth Circuit:

4 ‘

&* .

° “Order Denying Petition for Rehearing

Twefity-First Day, July Term, Thursdat, August 9, 1962

39 #)

Before Honorable Alfred P. Murrah, Chief Judge, and

Honorable David ‘T. Lewis and Honorable Jean S. Breiten-

stéin, Circuit Judges. .

This cause came on to be heard on the petition of appel-

lants for a rehearing herein and was submitted to the court.

On consideration whereof, it is ordered by the court that

the said petition be and the same is hereby denied, Honorable

Alfred P. Murrah, Chief Judge, dissenting.”

This is a copy of a public record, reproduced as it was published. It is not legal advice, and it may not be the version a court would rely on. Check the official source before you cite it.