# Petition for Writ of Certiorari — In re Estate of Hurst > Briefs, arguments, decisions, and more. URL: https://www.frixlaw.com/law-library/documents/brief%3Amicro_IA40385601_0755%3A2 ## Record - **Collection:** Supreme Court brief - **Document type:** Petition for Writ of Certiorari - **Published:** January 1, 1963 - **Citation:** 372 U.S. 925 ## 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 AX if D) 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 7 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. . 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 4 Ss . 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 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." 27 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.” rd € 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, . : ae 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: : a- ? _ 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. — 33 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- ment of their pioperties * * © , with consequent substantial r 3 35 diminution of the values of such properties. It seems also agreed fhat the right asserted, ie., the peaceful enjoyment of their homes, is *. . 6 ful argument in dissent to the effect that to make the property © 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 © \) ” 37 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.” € ¥ 43 & _heretotore entered ‘in the above entitled case. 38 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. 1 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.” - J ; - ' al Order of the Court of Appeals, “kenth Circuit: 4 ‘ &* . ° “Order Denying Petition for Rehearing Twefity-First Day, July Term, Thursdat, August 9, 1962 q a a - 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.” --- Source: Frix Law Library, https://www.frixlaw.com/law-library/documents/brief%3Amicro_IA40385601_0755%3A2. Public record. Not legal advice.