Petition for Writ of Certiorari — Boardman v. United States

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oes . FILED”

SUPREME COURT. U. 5. Ae JAN 10 1968.

IN THE

Supreme Court of the United States

October Term, 1967.

nol 007

COE A. BOARDMAN and MARTHA E., his wife, and

FRANK J. SMITH and THERESE E.. his wife,

Petitioners,

vs. .

UNITED STATES OF AMERICA. .

Respondent.

PETITION FOR A WRIT OF CERTIORARI TO THE

‘UNITED STATES COURT OF CLAIMS.

- Joun L. SULLIVAN,

804 Ring Building, :

1200—18th Street, N. W.,

. Washington, D. C.,

FRANCIs W. SULLIVAN,

2304 The Fidelity Building,

Philadelphia, Pennsylvania,

- Attorneys for Petitioners.

Of Counsel:

SypNEy C. ORLOFSKY,

STEPHEN A, COZEN. 4

Te cattammeenialietiianeiaiel

° Huntzinger Printing Corp., Appellate Printers, Camden, N. J. ex

: merrier CLERK

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aaa alae PRENTICE rene * PEAT STO IE Pe NENT as ‘a e ¥ eS Bias

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a INDEX

Opinions Below ...... ' Bio a nae Peet oO

Jurisdiction ............. ee

Question Presented PSE I ELS Be oe OR Sisk DE: a

Statement of the Case ..............cccsseecccceees

Reasons Relied Upon for Allowance of the Pere |

A. The Test Applied By ‘The Court Of Claims .With

Regard To The Time Of “Taking” Was Erroneous ~

. And In Direct Conflict With Prior Decisions Of » °

Such Court And Of This Court ............. re

B. The Decision Below Improperly Deprives Peti-- __

' -tioners Of A Constitutional Right And Is: Based om

Upon The Improper Application Of A Federal

Statute ..... bon bpthevey knee Ve isecees4be up eestor 2)

Conclusion Crore ae ape ae iy ea easeies 22.

Appendix £........2.2¢v..00- CSS ere eee 24

Opinion Of The United States Court Of Claims..... 24

- Order Sur Motion For Rehearing Of The United

States Court Of Claims ..:............ ee

TABLE OF CITATIONS

CASES: »

Acme Process Equipment Co. v. United States, 347.

F. 2d 538. (Ct. Cl. 1965) ....... 6... cece eee we DD.

2 en weeks ede 5 Se ae rte a ip eee ina ake nnn rite Na Reset ine ies 6 Pee Set Ma Scot ene pci watate i weil

peli tien ok a 8 Ali ie

PAGE —

Avery v. United States, 330 F. 2d 640 (Ct. Cl. 1964) 14,15

Bacon v. United States, 295 F. 24.936 (Ct. Cl. 1961). .8, 13,

16, 17, 21

Ball Vv. - Paramount Pictures, ra 169 FP. 2d 317 (3rd.

Cir. 1948) ppbuceenrrenss tabuedceda cele wie 14, 19

Batten v. United States, 306 F. 2d. 580 (20th. Cir, «

- 1962) SeaN is tan BP er Rae Plans eek ree are Oy

Bedford v. United States, 192 U. S. 217 (1904) essees &

Boardman v. United States, 376 F. 2d 895 (Ct. CL

1967). eau Nreeu ee Raek ace eatin 2, 6, 7, 8, 14, 16,17

‘ Davis v. United States, 295 F. 2d 931 (1961) ..8, 14, 15, 21

Friedman v. United States, 310 F. 2d 381 (Ct. Cl.

ae ees Pe ere rep is arene 17

Gordon v. United States, 140 F. Supp. 263 (Ct. Cl.

1956)" SP eH me hee re anny 17, 21

: Griges v. Allegheny County, 369 U. S. 84. ( 1962) . 7

Jensen v.. United States, 305 F. 2d 444 (Ct. Cl.

CIS cuadaetenan ees connor. ele aw ans 8, 15, 16, 17, 21

Klein v. United States, 152 Ct. Cl. 221 (1961) . . 8, 13, 14,

15, 16, 17, 21

Madigan v. United States, 142 Ct. Cl. 641 (1958) .... 17

Todd v. United States, 292 F. 2d 841 (Ct. Cl. 1961) .. 17

United States v. 3276.21 Acres of Land, 222 F. Supp.

eS Ye oeeeeeeee 8,9, 16

United States v. ‘Causby, 328 U. S. 256 (1946) - ones 7, 21

United States v. Dickinson, 331 U. S. 745 (1947). . 7, 8, 10,

11, 12, 15, 16, 21, 22

ie og | PAGE

‘United States v. ‘Martin, 267 F.-2d 764. (10th Cir.

MOD) aoc ocvosaces: Bre Ee eo ere eae

_Statures: | ge |

28 U.S.C. §1255 (1) ...... pecraei ts Pe ene on, aoe 2

Oa he 2

28 U. 8, C. $2501 . aagke easel aoe 2, 3, 6, 7, 12, 13,

ae ae 16, 17, 21, 22

Air Cénimneres Act of 1926, U. S.C. $171, as amended

by: Civil Aeronautics Act of-1938, 49 U- S. a. ,

[ena aiaie it A OR tay: ie 7

in anibsiaelaeies sib inh thai csesTgiiiilese ay De. Cs Sita - a

_IN THE — :

a SUPREME COURT OF THE UNITED STATES.

October Term, 1967. -

Cor A, BoarpMAN’and Martua.E:; his wife and

FRANK J. renee and THERESE E., his wife, ©

. -_ , | Petitioners,

vs. j

UNITED STATES OF AMERICA,

Respondent.

PETITION FOR A WRIT OF CERTIORARI TO THE -

' UNITED STATES COURT OF CLAIMS.

The Petitioners are individuals, husbands anal wives, here- —

- inafter referred to as “Petitioners”. ;

Petitioners respectfully pray that this Honorable Court

may grant a writ of certiorari to the United States Court of

Claims to review a judgment of that Court entered May

12, 1967, in which rehearing was denied October 13, 1967. ~

: OPINIONS BELOW.

\: The: oe of the Court of Claims dated May 12, 1967

is ‘reported in 376 F. 2d 895 (Ct. Cl. 1967). It is fully set

- forth in an appendix to this petition. The opinion of oe j

Trial Commissioner i is unreported. |

_ JURISDICTION.

~ (a) The judgment of the — of Claims \ was entered

on May 12, 1967.

(b) Pursuant to Rule 68 of the Court of Claims Petition- ©

ers filed a Motion for Rehearing on June 9, 1967. Such

Motion was denied. by the Court by way of Order dated"

October 13, 1967. ; 7 #

upon this Court by 28 U. S. C. $1255 (1), the petition being

timely filed under the provisions of 28 U. S. C. §2101 (c).

QUESTION PRESENTED.

Was the Petitioneis’ cause of action for compensation

for the taking of an avigation easement over their property

by Respondent barred by the Statute of Limitations set forth

in 28 U. SC. $2501?

ihe STATEMENT OF THE CASE.

; o

_ The Petitioners, FRANK J. SMITH and COE A. BOARD- .

MAN, ‘prior to the filing of the petition in this matter. had

_ ‘been engaged in the residential building development busi-

ness for a number of years (N. T. 13). .

Petitioners commenced suit against.the Respondent on —

December 5; 1963 by’ filing a petition with the United States »:

. Court of Claims seeking damages for a taking of an aviga-

tion easement over the Petitioners’ property located in”

Horsham Township without just compensation in violation

of the Fifth Amendment of the United States Constitution. —

The Respondent filed an answer to Petitioners’ petition ©

denying that a taking had occurred and averring that if a-

_ taking did occur it was’ barred by the six year Statute of .

Limitations provisions of 28'U.'S. C. §2501.

The case was tried before the Honorable C. Murray Bern-

hardt, Commissioner of the United States Court of Claims |

‘on October 13th and 14th, 1965, at the United States Naval

_Air Station, Willow Grove, Pennsylvania. '

At trial the Petitioners produced evidence that” — had,

for many years, been engaged in the construction of resi-

- dential home developments in southeastern Perinsylvania

and. surrounding states (N. T. 13, 20, 21). ~

On June 13, 1955 the Petitioners purchased a tract of

land consisting of 122.55 acres in Horsham Township, Mont-

gomery County, Pennsylvania, which site was to be sub-

divided and used for residential ‘home development. The

tract of land is bounded by Keith Valley Road and Park

Road and lies immediately north of the Willow Grove

Naval Air Station (N. T. 13-14). oes

At the time of the acquisition Petitioner, Frank J. Smith

and his agent, Paul Franz, we informed that the Air

~ 4

Station was to be closed, and they had no knowledge that

the Air Station was to be expanded (N. T. 18-19, 37-38).

It was established that Melvin Stackhouse, a lumberman,

commencing in November of 1956 and continuing until Au-

gust of 1957, had cut down the large trees on the subject

property which enabled the Petitioners to prepare a pre-

liminary subdivision plan for the development (N. T. ‘119-

122).

From August, 1957 until 1960, the Petitioners did not

actively pursue their development plans since they were en-

gaged in other construction work in the State. of New Jersey

(N. T. 23-24). In 1958 the Respondent changed the flight

pattern of its aircraft so as to bring such aircraft. directly’

across Petitioners’ property for.the first time (N. T. 375,

379, 426).

Mr. Franz, in 1960, as real estate agent for the plaintiffs,

was contacted by Donald Carlson who made an offer to

‘purchase one of the lots in the proposed subdivision plan,

and subsequently an agreement of sale with Mr. Carlson

was concluded (N. T. 81). :

As a result of this activity the Petitioners decided to pro-

ceed to develop the subject property, and engaged Charles

E. Shoemaker, a Professional Engineer; to prepare:.a sub-

‘ division plan for the subject’ property for submission to the

Horsham Township Planning Commission for approval (N.,

T. 27, 28, 103).

Commencing on August 3, 1960 and continuing until

February 10, 1961, Mr. William Hower, of Charles Shoe-

_ maker’s office, met with the said Planning Commission to

resolve all of the technical engineering questions involved

_ in the subdivision plan (N. T. 102-111).

During this same period of time Mr. Franz met with the

Planning Commission seeking approval of the subdivision

+ plan and-it was at this time that the Petitioners learned that

' the Planning Commission was reluctant to approve a resi-

‘ , ‘

9) re ag

dential Mevelionnaci located in close proximity to the Wil-

low Grove Air Station for fear that the aircraft operating

out of the base might epers crash See in a major

catastrophe (N. T. 83, 85). .

The Petitioners, notwithstanding this fact, pursued adop-

tion of their subdivision plan because in view of their ex-

perience it was clear that the subject area was otherwise

physically excellent ‘for development. |

However, the Planning Commission would not approve

the subdivision plan even though it fell clearly within the

proper zoning classification, and met all of the Commis-

sion’s engineering specifications (N. T. 85,.159).

- Petitioner Smith then advised Mr. Franz at the time of the

crash of the jet aircraft into the Bargain City Department

Store at Horsham, Pennsylvania; on August 27, 1961 to

abandon the subdivision plan since the action of the

Planning Commission in rejecting the plan because of the

risk involved with the jet aircraft rendered the property

valueless for residential purposes (N. T. 86). ;

Benjamin Park, a member of the Planning Commission,

stated unequivocally that the Commission rejected plain-

tiff’s subdivision plan solely because of the risk involved to

residents around the Air Station (N. T. 166).

As further evidence of the fact that up until 1961 the

property was valuable for residential development, Felix

Clauss, an experienced builder, testified that he acquired the

tract of land immediately adjacent to the Petitioners’ prop-

erty for residential development, but abandoned said plans

about the time that the air crash occurred in August’ of

1961 (N. T. 130, 140). .

Harry Haeberle, an experienced real estate appraiser,

testified on behalf of Petitioners that in his opinion the high-

est and best use of the subject property was for a residen-

tial community of homes ranging in price from $22,000. to

$22, 500. Mr. Haeberle further stated that prior to the taking

the value of the property was $437, 400., and. that immedi-

ately after the taking the property had been reduced in

value to $175,400 (N. T. 188, 191, 193).

The Respondent introduced a number-of witnesses whose

testimony in many instances was cumulative, but in essence

disclosed that jet aircraft started operating over the subject

property in July, 1955, and that such aircraft created noise

in taking off and landing over the subject property.

After the trial of the case before the Commissioner both

parties filed Requested Findings of Fact and Briefs on “

Law.

. clusions of law pursuant to Rule 57 (a).

~ Thereafter, Petitioners duly filed.exceptions to the re-

port of the Commissioner, which éxceptions were argued

before the Court én banc. -

On May 12, 1967 the Court of Claims adopted the opinion,

findings ‘and recommendations of the Commissioner, with

modifications, and entered judgment dismissing Petitioners’ :

pétition. Coe-A. Boardman, et al. v. United States, 376 F.

. 2d 895 (Ct. Cl. 1967). The Court’s holding was based upon

its determination that Petitioners’ Constitutional right to

just compensation for the conceded “taking” of their prop-

erty by Respondent was barred by the runningsof -the

Statute of Limitations set: forth i in 28 U.S. C. $2501. 379

F. 2d at 896-897, 900.

Petitioners, within the vieetane time allowed by the

Rules of Court, filed a Motion For Rehearing, but such Mo-

tion was denied by the Court en bane.

On July 13, 1966 the aniline filed his Report to on

Court, setting forth findings of fact and recommended con-

Se tN tan sith ln tht A A a tN Bn cle CT cam ti A AEM yen lt ae ae a GS a GRA tN Aa Sem TS Oe ect Na

PA at SrA ame a pn Cat ts Salt

REASONS RELIED UPON FOR ALLOWANCE OF THE

A. The Test Applied By The Court Of Claims With Re-

gard To The Time Of “Taking” Was Erroneous And In

Direct Conflict With ‘Prior motions Of Such Court

And Of This Court.

It has been conceded by the Respondent and the Court

below that a compensable “taking” occurred by reason of

the flight of government aircraft over Petitioners’ super-

. adjacent airspace and below the lower limits of navigable

airspace. Coe A. Boardman, et al. v. United States, 376 F.

2d 895. (Ct. Cl. 1967); Air Commerce Act of 1926, 49 U.S. C.

§171, as amended oe Civil Aeronautics ma of ena, 49 U.S.

C. $401. jeoaaret

over the Petitioners’ aiee property would entitle them

to just compensation if their action has been brought within

the period prescribed by 28 U. S. C. §2501, United States v.

Causby; 328 U. S. 256 (1946); Griggs v. Allegheny County,

369 U. S. 84 (1962); United States v. Dickinson, 331 U. S.

745 (1947).

28 U.S. C. §2501 mein: inter alia as flee: |

“Every claim of which the Court of Claims has juris-

diction shall be barred unless the petition thereon is

filed within six years after such claim accrues.”

, ‘ ‘ % ’

In holding that Petitioners’ claim was barred by the fore-

going Statute of Limitations the Court below stated: _

“We cannot say with any confidence at what precise

point after the first arrival of jets at’ Willow Grove in

July 1955 they reached the level of substantial inter- .

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ference, but it is clear that it was reached at least by

the summer of 1956 when conditions prompted the con-

vincing complaint by the proprietor of the Silver Arrow

Day Camp, referred to above” 376 F. 2d at 900. :

a %

The governmeRt’ s contention; presumably accepted by |

the Court below, is that the date of taking could be any

particular day between the time of the first arrival of jets

at Willow Grove in July, 1955 and _the. summer of 1956

when enough jets flew enough times over the subject prop-

erty at low enough altitudes so as to disturb the enjoyment

of a user of that property. This is clearly not the test en- .

visioned by the Supreme Court in the case of United States

v. Dickinson, 331 U. S. 745 (1947), nor is it the test enun-

ciated: by the Court of Claims itself in Klein v. United

States, 152 Ct. Cl. 221 (1961); Davis v. United States, 295

F’, 2d 931 (1961), Bacon v. United States, 295 F. 2d 936 (Ct.

Cl. 1961); and Jensen v. United States, 305,F. 2d 444 (Ct.

Cl. 1962).

If the government’s theory were prener| it could escape

liability in almost every case of alleged inverse condemna-

tion. The government could assert, in actions brought by

landowners immediately after the advent of jet aircraft

and flights over their property, that no “taking” had oc- °

curred; merely a trespass. On the other hand, if the land-

owner waits until conditions become intolerable or obnox-

ious and orily then institutes suit, the government could then

argue that the same initial overflights were of such char-

-. acter as to constitute a “taking” as opposed to a mere tres- —

pass. Such a situation was never intended nor can it be

permitted to exist.

See: Batten v. United States, 306 F. 2d 580 (10th Cir.

1962); Bedford v. United States, 192 U. S. 217 (1904).

In United States v. 3276.21 Acres of Land,.222 F. Supp.

887 (S. D. Cal. 1963), the Court commented as follows:

“In our case there was not a complete taking bit by

bit or foot by foot of land as the trespasses of the — -

United States continued. Undoubtedly, the first tres-

. passes by single prop planes were so insignificant as

to cause the land owner no concern whatsoever.

5 Gradually the flights increased. Eventually, in August

of 1955, the greatly accelerated number of flights by

_jets so interfered with the land, and became so op- —

pressive that a taking was instituted or started. We -

term it an “incipient taking”. Thus in our case, we

-had trespasses increasing bit by bit until the time the

taking occurred. .In the Dickenson case each foot. of

land was —« taken as the water rose and

covered it.

We cannot escape the teaching of the cases that the

' government must pay in a condemnation case for prop-

erty taken, but not for property damaged. Each tres-

pass’ ‘might be called damage to the property, but as set .

forth heretofore, the trespass did not become so ex-

tensive as to constitute an incipient taking until August

‘of 1955. If each flight of a plane across the land owner’s

property below the public domain, and constituting

merely a trespass gave rise to a cause of action, the

situation that would result would be intolerable. The

claims would flood the courts, the alleged damage |

would be in each instance almost impossible to ascer- .

tain.”

* x * é

“It would seem that the break line as to-where com-

pensable damage exists in either a case involving con- -

demnation or inverse condemnation would be that time

when the trespass flights became so intolerable, so op-

pressive and created such a substantial interference

with the use of the property that they ceased to be a

- mere trespass and constituted a ‘aking or incipient

. taking.” 222 F. Su upp. at 891. (Emphasis supplied.)

eT et Ee Sor. shin, ene Sanita ON eee ey

10°

The touchstone of the Court’s decision below should have

been Justice Frankfurter’s: opinion in Dickinson, supra.

Because his language is clear and unambiguous, to para-

phrase it might be to dilute it. We, therefore, quote the

same at length: —

_ “Property is taken in, the constitutional sense when

‘inroads are.made.upon an owner’s use of it to an ex-

tent that, as between private parties, a servitude has

been acquired either by agreement or in course of.time.

The Fifth Amendment expresses a principle of fairness

and not a technical rule of procedure enshrining old and

__new niceties regarding ‘cause of action’—when they

are born, whether they proliferate and when they die.

We are not now. called upon to decide whether in a

situation like this a. landowner might be allowed to

bring suit as soon as inundation threatens. Assuming .

that such an action would be sustained, it:is not a good

enough reason why he must sue then or have from

that moment, the statute of limitations run against him.

If suit must ‘be brought, lest he jeopardize his rights,

as ‘soon as his. land is invaded, other contingencies

would be running against him—for instance, the un-

certainty of the damage and the ‘risk of res. judicata

against recovering later for damage as yet uncertain. .

The source of the entire claim—the overflow due to

rises in the level of the river—is not a single event; it

is continuous. And as there is nothing in reason, so

there is nothing in legal doctrine to preclude the law

from meeting such.a process by postponing suit until

the situation becomes: stabilized. An owner of land

. flooded by the government would not unnaturally. post-

_ pone bringing a suit against the government for the

flooding until the consequences of inundation have so

manifested themselves that a final account may be

struck.

When dealing with a problem: which arises under

such diverse circumstances procedural rigidities should

be avoided. All that. we are here holding is that when

the government, chooses not to condemn land but to |

bring about a taking by a continuing process of physi-

cal events, the owner is not required to resort either to

eo piecemeal. or premature litigation to ascertain the_just

compensation for what is really ‘taken’.” 331 U. S. at

748-749. (Emphasis supplied. See also: United States —

os Martin, 267 F. 2d 764 (10th Cir. 1959).

:* Siena supra, the government had built a dam and

notified adjoining landowners, in 1936, that, it intended to

elevate the river level. The dam was impounded with

water in October, 1936, but the river level was not raised

until September, 1938... Plaintiffs instituted suit in 1943 and

the government defended on the ground that plaintiffs’

property had been continuously floodéd since October, 1936,

although it was not completely inundated until after Sep-

tember, 1938. Thus, the government argued, plaintiffs’

action was barred by the applicable six year Statute of

Limitations. The Supreme Court rejected the government’s

argument and affirmed jung for the Laaceeeed rendered

by the trial court.

Justice Frankfurter, speaking for the Court, set forth the

foregoing. basic principles of law and equity that mu

govern every trier of fact who is presented with the ques-

tion of the application of the statute of limitations in an in-

verse condemnation case.

He further commented as follows: - .

“The government could, of course, have taken ap-

propriate proceedings to condemn as early as it chose ~

both land and flowage easement. By such proceedings,

it could have fixed the time when the property was

‘taken’. The government chose not todo so. It left the

sas Bet cee leith.

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otra

hey

gulithed ordek Aeadabins tei

ores

taking to physical events, thereby putting on the owner

the onus of determining the decisive moment in the

process of.acquisition by the. United States when the

fact of taking could not longer be: in controversy. *' i

U. S. at 747-748. E

~--

a ~

resect it. must be. deteed that the statute of

limitations is not a club to be wielded by the government

to punish one whose property it has taken and upon whom. -

is cast the onerous task of subjectively determining at what

point in time his irichoate claim for such wrongdoing has

Tipened into a sustainable cause of action. -Rather, the

__ limitation language of 28 U. S. Cc. §2501 was intended, and. _

should be applied by the Court, as a bar to. those actions

based upon an allegation of inverse ‘condemnation in which

the quantum and character of interference from. overflights

was so severe at a particular time or for a particular period,

more than six years prior to the institution of the action, as

to make it clear to the injured party (and it is so proven by

‘ the government)’ that the subject property has been ren-

dered valueless for the purpose for which it was intended

to’be used or had béen used. Only if the statute of limita-

tions. is so applied is, the Court aided by its application and

is the injured party not deprived of a constitutional right

_ which has already vested.

The test laid down in Dickinson, supra, represents a”

fine balance ‘between objective and: subjective considera-

tions and elements, but is clear in intent: where the gov-

_ ernment chooses not to condemn property but, rather, to

. leave the “taking” to a series of physical events, the owner.

of the property, upon whom is cast the “onus of determin-

ing the decisive moment ‘in the process of acquisition nee

when the fact of taking” can no longer be in controversy,

ought not be penalized by a rigid application of the Statute

of Limitations. United States v. Dickinson, supra at 747-

748,

This well balanced test was initially applied by the Court.

_ of Claims in Bacon v. United States, 295 F. 2d 936 (Ct. Cl.

1961) and Klein v. United States, 152 Ct..Cl. 221 (1961).

In Bacon, supra, overflights of B-25 bombers began during -

World War II and jet aircraft were operational in 1948.

Both flew below the lower limits of navigable airspace. The

Court queried: when were the overflights so obnoxious as _

to become intolerable to plaintiffs”. Although there was no .

“evidence of qny significant change in flight pattern the

- Court held that a “taking” did riot occur until 1954 when

louder jets were introduced, one of which crashed into

the subject property in 1955.

_In Klein, ‘supra, plaintiffs continuously protested over-

flights which began in 1947. Originally, the Court of Claims

found that plaintiff’s action was barred by the limitation

- ‘ provision of 28 U..S. €. §2501, but upon. rehearing deter-

mined that it had not correctly net the Dickinson test

and reversed, holding that:

“Plaintiffs had been uneasy about the flight of the

planes over their property and suffered considerable

inconvenience from the noise and vibration, but until —

about the first of September 1954 they had not found

the CoRECNS intolerable.” : de

One of the essential, compelling facts upon which the

Court there relied.was a change in flight pattern which

brought the planes ‘directly over the subject property. The

*. change, the Court stated, was not one which plaintiffs had

reason to. anticipate. Plaintiffs’ cause of action, therefore,

had not fully accrued and did not fully accrue until such

conditions had come. to pass or the extent of the ‘use and

‘the, consequent interference with such .use and enjoy-

- ment. of the property was fully known or ascertainable. °

Applying the tests set forth in Bacon and Klein it is

submitted that Petitioners’’ action herein was timely.

. 7 :

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Initially, there was increased flight activity after 1957

which was not to be anticipated (witness the base com-

mander’s letter to Mr. Barmat, Exhibit’ D-20, N..T. 322).

Secondly, the introduction of F-1 jets in 1959 meant a

significant change in the noise factor. 376 F. 2d at 897. —

’ Thirdly, the very important change in flight pattern from

a left to right hand pattern which for the very first time

brought aircraft directly over, the middlé of Petitioners’

property: (N. T. 375, 379, 426). This change occurred in

1958 because of the recognition of a safety factor in the

congested residential areas to the east of Petitioners’ prop-

erty.

Fourthly, the introduction of night flying in 1 1960 ( N. ..

385, 393).

Finally, the fatal’ crash which took“place on August 27,

1961 adjacent to Petitioners’ property. 376: F. 2d at 898.

_ Thus, in 1958 a hitherto unexpected and unanticipated

change occurred which for the first time subjected Pe-

titioners’ entire property to overflights below the lower

limits of navigable airspace. - = ¢ .

Under tle theory of Klein v. United States, supra, Davis °

v. United States, supra, and Avery v. United States, 330 F.

_ 2d 640 (Ct. Cl. 1964) it is submitted that the foregoing un- —

anticipated acts by the government cumulatively created

a surcharge upon or “taking” of Petitioners’ property. |

An even-handed application of the tests laid down in

Dickinson, supra, and followed in Klein and Davis, supra,

. requires at the very: least some recognition of the fact that

the flight pattern was changed and that such chahge was

not anticipated by Petitioners. Certainly, the Court below ~

“was not required to reach the same conclusions or draw the

; same inferences as the Trial Commissioner, and could have -

analyzed and disposed of such facts in accordance with

their judicial power to do so. Ball v. ‘Paramount Pictures,

169 F. 2d ay (3rd Cir. a

But, neither these facts nor the conclusions contended

for by Petitioners—facts which were so important in Klein

and conclusions which were considered critical in Davis

and Avery, Supra—were even considered by the Court

below.

_ Such a failure to apply the same standards to tHe instant

case that had been previously applied to similar claims may

not rise to the status of a violation,of Petitioners’ right to

equal. protection of the~law-or.due process, byt does evi-

dence a disposition on the part of the Court below to accept -

without question or proper review the facts, conclusions ...

and tests of the Trial Commissioner. Cf., Acme Process

Equipment Co. v. United States, 347 F. 2d 538 (Ct. Cl. 1965),

Footnote 2 at p. 542.

As Judge Whitaker aptly pointed out in his ago

opinion in. Davis v. United States, 295 F. 2d 931 (

1961), the teaching of the Dickinson case compels the con -

clusion that plaintiffs are entitled to wait until they can

- ascertain the full extent to which defendant’s flights would

interfere with the use and enjoyment of their property and.

* only then sue for the entire reduction in value at one time.

A continuous course of conduct requires only one action.

Davis v. United States, supra at 935. .

_ The decision of this Court in Jensen v. United States, 305

F. 2d 444 (Ct. Cl. 1962), seems to have sought to clarify

some of the objective standards left open in Dickinson. But,

while not forsaking the subjective reactions of the Petition-

ers, even a strict application of the objective standards en-

‘ .unciated in Jensen support Petitioners’ contention that the

instant action occurred -no earlier than December 5, 1957.

‘ What was said by the Court of Claims in Jensen, engee, fe

* pertinent here:

“There is, unfortunately, no simple litmus that for

discovering in all cases when an avigation easement is

. first taken by over flights. Some annoyance must be

Br a wea eee en a

Tg Re ae AY. nn ee ae

borne without, compensation (Citing Cases). The point

when that state is passed depends on a particularized

judgment evaluating such factors as the frequency and

level of the flights; the type of planes; the accompany-

ing effects, such as noise or falling objects; the uses of

the property; the effect.on values; the reasonable re-

actions of. the humans below; and the impact upon

animals and vegetable life. The Government’s argu-

ment that the taking in this case occurred’ before

February 1952 (ie. prior to six years before the filing

of the petitions) fails because it overstresses some of

these elements and neglects others which are oritical. ee

305 F. 2d at 447.

The aie has in this case also overstressed some

elements and neglected others which are critical. But,

what is most. disturbing is that the Court below. should

_ ‘have fallen prey to such an obvious bootstrap tactic.

The test propounded by the respondent and obviously

accepted: by the Court below—to wit: during what point

of time did enough jets fly enough times over the subject

property at low enough altitudes so as to disturb a user of

_ such property to a greater extent than they previously had

done (376 F. 2d at 899)—all but obliterates the underlying

intent and purpose of 28 U. S. C. §2501 as analyzed and dis-

cussed by this Court in Dickinson, supra. It completely

discards the subjective considerations deemed so necessary

to obtain a just result in Bacon and Klein, supra. It con-

. flicts* directly with decisions rendered, based upon the

-well established rationale of Dickinson, by lower courts of

concurrent jurisdiction. See: United States v. 3276.21 Acres ©

of Land, 222 F. Supp. 887 (S. D. Cal. 1963). ‘It.permits the

use of the objective standards set forth in Jensen, supra,

to be used as tools for the rationalization of facts and the

justification for improper conclusions based upon such

i onetiel

"facts. It elevates to an unwarranted and absurd position

the procedural rigidities sought to be avoided by Justice

- Frankfurter and would destroy Constitutional rights in

Fifth Amendment claims which are fresh and can be proven

with sufficient accuracy. It distorts the entire purpose of

‘ 28 U.S. C. §2501 which was to aid the Courts by bringing

before them fresh claims supported by recent factual cir-

cumstances. Friedman v. United States, 310 F. 2d 381, 401

(Ct. Cl. 1962); Gordon v. United States, 140 F. Supp. 263,

265 (Ct: Cl. 1956).

Moreover, throughout the thread of the opinion below is

a clear indication that the burden of persuasion with respect

to the time of the accrual of the Petitioners’ cause of action

and the facts necessary to such determination was improp-

erly cast upon the Petitioners.

The burden of pleading and “persuasively” proving that

Petitioners’ conceded cause of action was barred by the

limitation language of 28 U. S. C. §2501 should have been

upon the Respondent, who affirmatively relied upon such

statute. Todd v. United States, 292 F. 2d 841 (Ct. Cl. 1961);

Madigan v. United States, 142 Ct. Cl. 641 (1958).

The fact that Respondent failed to present evidence suffi-

cient .to satisfy its burden of persuasion with respect to the

time at which the Petitioners’ claim accrued is manifested

by the Court’s admission that it cannot say with any con-

fidence when the “taking” occurred. 376 F. 2d at 900.

Furthermore, «in its attempt to rationalize the facts in

order to fit them to the classical test enunciated in Dickin-

son and fashioned with preciseness and justice in Bacon,

Klein and Jensen the Court. below has arrived at a hybrid

test which provides neither the Constitutional fairness of

Justice Frankfurter and the essential subjectivity of Bacon

and Klein, nor the valid and helpful objectivity of Jensen,

supra.

The major areas of reliance upon facts by the Trial Com-

eR dai ipg sins cee Saris iti

bh Sims Le MN ics mo sab mG a

' missioner and the Court are indicative of the validity of

the foregoing analysis.

The testimony of Mr. Barmat, proprietor of the day camp

adjacent to Petitioners’ property, whose “convincing com-

plaint” admittedly influenced the Court’s decision, rendered

such aforesaid complaint meaningless. The “complaint”

was not made until after the summer of 1956, after Barmat

had entered into a five year lease for the premises on which

he remained’ until 1961 when the lease ran out and he did

not renew it because he “just didn’t want to remain there”

(N. T. 320, 326).

The testimony of Mr. Barmat did not support Respond-

-ent’s contention that by the summer of 1956 conditions had’

_ become intolerable and that the level of substantial inter-

ference had been reached. He admitted that in 1956 and

1957 there “wasn’t much air traffic” during weekdays (N. T.

338); that subsequent to 1957 there was an increase in the

number and intensity of the overflights (N. T. 333); that

they became worse toward 1961 (N. T. 333, 337); and that

the transition to jets at the air base was only “largely com-.

pleted” in the summer of 1956 (N. T. 323).

If the conditions of which he complained existed in the

summer of 1956, why did Mr. Barmat undertake a five year

. lease of the property in 1957?

If the transition to jets had not been completed in the

summer of. 1956, if there “wasn’t much air traffic’’ then,

and there was am increase in the number and intensity of

overflights after 1957, how can the summer of 1956 cnmced

be the date of “taking”? . :

The Commissioner, and the Court below, have stated that

they cannot “say with any confidence” when the conceded

taking occurred. Was it not the duty of the Respondent to

supply such confidence dl the presentation of persuasive

_ evidence?

Moreover, the Court below could have accepted the bare

19: .

findings of fact made by the Commissioner without also

accepting and adopting his inferences and conclusions.. See:

Ball v. Paramount Pictures, et al., 169 F. 2d 317 (3rd Cir,

‘ 1948). In accepting such. conclusiotis the Court. was ‘re-

quired so to rationalize the facts as to distort tHe test which

should have been applied in “order to reach a just. conclu-

sion. :

That this is so is amply demonstrated by satin to

facts relied upon by the Court below as part of the basis

for its decision.

With respect to the dnchilon of the F.H.A. not to offer’

financing for residential development, the Commissioner

himself remarked that this was consistent with the previ-

~ ously announced policy of the F.H.A. in 1954 to system-

atically reject applications for any property proximate to , —

an airport, from which, at any time in the future, over-

flights might emanate (N. T. 270-273): The fact that it was

because of this previously written policy, and not because

of,any demonstrably dangerous condition at the subject air.

base, that prompted the F.H.A. decision was confirmed

categorically by Respondent’s witness Gabler (N, T? 270- -

273). |

In addition, the. statement by the Court below that there

was no cause and effect relationship between the crash in

1961 and the rejection of plaintiffs’ sub-division plan by

the township Planning Commission is refuted by the testi-

mony of Respondent’s witness Park (N. T. 163-166).

_ Mr. Park, in answer to direct questions put to him by the

Commissioner stated without contradiction:

(1) That the Planning Commission did not formulate

.a definite policy with regard to sub-division in the area

in question until after the 1961 crash (N. T. 164);

(2) That they were prompted to formulate such policy

solely by reason of the crash (N. T. 166) when they real-

ocigt

AAR a SAN te nts Ry ANT

Gd Al a A a ay

a an oe oe eee

ized that “the statement ‘It can’t happen here’ did hap-

pen once”; and — ,

(3) That it was more of a safety factor than a noise

factor which prompted their decision to forbid residen-

tial development in the area (N.-T. 164).

Uncontradicted evidence clearly demonstrated that from

1960 until the rejection of their plan in 1962 the plaintiffs

actively pursued their sub-division application (N, T. 103,

104, 107, 108, 109, 159, 85). |

It was, as Mr. Park admitted, the fact of failure and not

_ the mere fear of failure which prompted the Commission-

er’s decision. Out of the 17 crashes referred to by the Com-

missioner, 15 occurred on the base itself, and the other two

nowhere near plaintiffs’ property. See: “Exhibit D-29.

It is inconceivable that the Commissioner, and Court be-

low, could justifiably conclude that the risk of crashes on

the subject property was appreciable before the change in

the flight pattern in 1958 (N. T. 426) and the crash in 1961

or that there was no causal relationship between the afore-

said crash and the act of the Planning Commission. Such

a conclusion flies in the face of the evidence,

‘The opinion of the Court below concedes that the risk

_ of crashes alone does not trigger a “taking” although it may

constitute a trespass. But; the fact of a crash, in light of

increased air traffic, a significant change in flight pattern

‘which for the first time in 1958 brought government air-

~ craft directly over the subject property, and the introduc- |

tion of night flying, do present a series of events the cumu-

lative effect of which constituted a “taking” no earlier than

the beginning of 1958.

Clearly the evidence introduced by the government, upon

_. whom. lay the affirmative burden of proving the precise |

date of ‘‘taking”, was insufficient to support the conclusion |

reached by the Court below.

0 bts ali an es ee ae

Clearly the test applied by the Court was distorted by its

attempt to fit the unsupported theories presented by

Respondent into the concepts defined and fashioned by

Dickinson, Bacon, Klein, Davis and Jensen, supra.

The Court’s determination that Petitioners’ cause of ac-

tion was, time barred ignores the precepts of the cited _....

authorities, ascribes grandiose importance and significance

to a federal statute designed merely to aid the Courts and -

not to punish litigants or deprive them of Constitutionally

protected rights, and conflicts directly with the state of

established law. If permitted to stand it would constitute

a great departure from the principles so carefully con-

sidered and set forth heretofore.

B. The Decision Below Improperly Deprives Petitioners Of

A Constitutional Right And Is Based Upon The Im-

proper Application Of A Federal Statute.

This Court recognized in United States v. Causby, supra,

the Constitutional right of a property owner to just com-

- pensation for the taking of an avigation easement over such

property by the federal government. 328 U. S. at 266-267.

The federal statute heré under consideration, 28 U. S. C.

- §250*. did not create such right, but merely added the “pro-

ced1’ al niceties” of due process which were not contained

in the Fifth Amendment of the Constitution. United States

v. Dickinson, supra at 748. The Act is a procedural device

to prevent the presentation of stale claims, “where the facts

were not clear by reason of the passage of time”. Gordon

_ v. United States, supra at 265. In this respect, it is a per-

fectly proper subject of affirmative proof by the defendant

in an appropriate case. .

In this case Respondent left the “taking” to physical

events thereby casting upon Petitioners the burden of de-

a chia ast eaiaa S 4

eV ici 01 Sele Nl aN Re ih incttlan tt he nien ir be Bn

Lp i

of the action.

To permit such a result to stand would not only work a -

termining the precise moment at which their rights ac-

crued. See: Dickinson, supra. 7

The Court below has now seen fit to absolve the Re-

spondent from liability by reason of its conceded -uncon-

stitutional taking of Petitioners’ property by not only fail-

ing to apply the tests sanctioned by this Court. and

previously applied in other cases by the Court below, but by,

moreover, failing, to require the Respondent to bear the

burden of persuasion with respect to the time of the accrual

manifest injustice to the Petitioners, but would cast an

. improper and unwarranted burden upon future claimants. .

inter-relationship be-

It is, therefore, important that the

tween 28 U. S. C. §2501 and Fifth Amendment rights be

clarified, and that a~definitive statement respecting . the

burden of proof of the government in cases in which an

unconstitutional “taking” has been conceded be made.

CONCLUSION.

The test applied by the Court below in determining the

time at which a concededly unconstitutional “taking” of

Petitioners’ property occurred was erroneous and in direct

conflict with prior decisions of this Court, courts of con-

_ current jurisdiction, and of such Coutrt itself.

The Court below failed to consider the question of

whether or not an additional surcharge or “taking”, for

which an action was not barred, had occurred and in so

doing abdicated its right and duty to draw proper legal

conclusions from the facts found by the Trial Commissioner.

The decision below is based upon the imposition of an

improper burden upon Petitioners and ‘an improper appli-

* cation of a federal statute. Since such statute must be ap-

plied to claims dealing with Fifth Amendment rights it is

imperative that a definitive statement respecting the pur-

pose of the Act and its relationship to Constitutional —

be made.

For the foregoing reasons, this petition for a writ of cer-

tiorari should be granted.

Respectfully submitted,

JOHN L. SULLIVAN,

FRANCIS W. SULLIVAN,

Attorneys for Petitioners.

Of Counsel: we

~ Sypney C. OrLorsxy, ~

STEPHEN A. COZEN,

_ 2 - . -

. Ne Fe Re OS eA bona EN Mes Meds ne dele ge

oO a See

Wri Ais Bee Pewee? > | -sian ede he Snes 2% ow adleatiin

‘APPENDIX.

IN THE

UNITED STATES. COURT OF CLAIMS

pa ‘

No, 346-63.

(Degided May 12, 1967)

‘. Vv. ,

‘THE UNITED STATES.

‘

- COE A. BOARDMAN AND MARTHA E,, HIS WIFE, AND

FRANK J. SMITH AND THERESE E., HIS WIFE

Before; COWEN, Chief Judge, LARAMORE, DURFEE,

- DAVIS, COLLINS, SKELTON and NICHOLS, Judges.

_. OPINION.

PER CURIAM: - This case was referred to Trial Com-

missioner C. Murray Bernhardt with directions to make

findings of fact and recommendation for conclusions of law.

The commissioner has done so in a report and opinion filed

on July 13, 1966. Exceptions to the commissioner’s findings

Pe Cae Dire a ea oatee

_ and recommendation for conclusion of law were filed by \.

plaintiffs: and’ the ‘case was submitted to the court om the —

briefs of the parties.and oral argument of a Ca Since

_ the court is in agreement with the opinion, findings and rec-

ommendation of the commissioner, with modifications, it

hereby adopts the sate, as modified, as the basis for its

judgment in this case, as hereinafter set forth. Plaintiffs are

therefore, not entitled, to recover and their ‘petition is

dismissed.

Commissioner Bernhardt’s salina’ as modified by the: ‘

Court, is as follows: - wea"

Eyer since a measure of governmental liability was found -

by the Supreme Court in the landmark case of United States

v. Causby, 328 U. S. 256 (1946) for the taking of private

property rights by regular aircraft overflights,—a wrong

theretofore esteemed by many to bea noncompensable tres-

pass,—lower courts coping with the spate of suits: inspired

by the Causby example have encountered recurring dif-

ficulty in fixing the accrual date of: each cause of action.

That is the problem here, and the petition stumbles on our

six-year statute of limitations. 28 U. S. C. §2501. The

-plaintiffs’ theory of placing the taking date to coincide

_ with a nearby airplane crash in 1961 which dramatized,

_ but did not create, “the risk to residential developments

neighboring the airport, is not orthodox;.nor does it re-

liéve from the bar of the statute the petition.filed here in

1963 to redress flight nuisances commencing in 1955’and .

fluctuating only mildly in quantity and quality in succeeding

years. In effect, the plaintiffs are necessarily saying that

in themselves the overflights from 1955 onward did\not —

deprive their property of residential value, but only when

in combination with the risk factor which (accordfng to

. *The opinion, findings of fact, and recommended conclusion of law

are submitted under the order of reference and Rule 57(a).

al ae lia

them) did not emerge unti I gccentuated by the 1961 crash,

even though equivalent risks had been latent for as het as

plans had flown the local skies.

In June 1955 the plaintiffs, both of them enapialinnial real

estate developers and builders, bought 122.32 acres of for- .’

ested land frigging the northerri boundary of the Willow

Grove Naval Air Station at Willow Grove, Pennsylvania.

The air station, opened in 1943, became in postwar years;

anid still is, a flight training center for reservists of the Navy,

Marines, and Air Force, as well as the Air National Guard.

Until July 1955 only propeller-driven aircraft, mostly sin-

- gle-engine fighter types, were assigned to the station, with

the exception of a period starting in 1950 when a few twin” —

engine jet fighters capable 6f negotiating the relatively

short runways were temporarily in operation. A 4,000-foot

extension to the north end of the main northwest-southeast

runway was built and became operational in July 1955 to : :

permit jet fighter operations, and immediately a number of

single-engine F-9. and T-33 jet fighter planes were trans-

ferred to the station and an.active program was. launched

to eonvert reserve pilots’ of. conventional planes into jet. -

pilots. Then and later-most of the flight. activity at the base

ee oS jet fighter aircraft, primarily during the warmer

ae 4 on weekends (hence the soubriquet, “weekend war-

riors’’) and during annual fortnightly training periods, all of

- them operating from the extended northwest-southeast run-

way. Because the plaintiffs’ property lay entirely within the

_ approach zone at the northern end of the extended runway,

all jet flights taking off tothe north or landing to the south

on that runway (constituting half or more of all flights due .

to the prevailing breezes) funneled over the plaintiffs’ prop- —

erty at above-ground altitudes ranging from 200 feet to 350-

500 feet in taking off across the hither and yonder bound-

‘aries, respectively, and from 220 to 303 feet on GCA landings

(Ground Control Approach, used under nonvisual weather

° ,

conditions). These altitudes varied within 50. feet depend-

ing on the particula® aircraft, type of mission, atmospheric

conditions, pilot tech ique, etc.. Visual landings (VFR; 90

. percent of total landings) were at higher than GCA alti-.

tudes. ¢Propeller-type aircraft using the northwest-south- |

“east runway. both before and after its lengthening landed

_ under visual conditions, and took off, at higher altitudes over

the. plaintiffs’ property than their jet counterparts. Com-

mencing in September 1957 the F-9 jets were gradually re-

placed with F-1’s which, because of their superior power -

and flight characteristics, departed and arrived visually over

the property in question at substantially higher levels than

other jet aircraft in use there,.and produced more noise,.but

not enough to surcharge the existing easement of flight inso-

far as. the plaintiffs demonstrated. The volume and vari-

eties of flights and aircraft prior to December 1957 (the date

six years prior to suit) were not substantially different from

those thereafter from the standpoint of increasing the inter- .

* ference with use of plaintiffs’ land. At no time prior to at:

‘least 1963 were there employed at the station any supersonic

jets or ones equipped with afterburners. , |

The defendant correctly and understandably concedes

that these flight activities invaded the plaintiffs’ property

rights in the “superadjacent airspace”, for any residential

potential in the land was seriously impaired by the nerve-

jangling noise, vibration, and sight of the low-flying planes.

Witness graphic proof of this in the written complaint made

in January 1957 by the operator of a children’s.summer day

camp to the commandant of the air station. In July and

August of.each year from 1956 through 1961 the Silver Ar-

row Day Camp was conducted for young children on a

_ 2¥.55-acre piece of the plaintiffs’ original tract which they

had sold in May 1956. The small.tract, containing an old

mansion and miscellaneous farm structures, abutted the .

northern boundary of the base, and was directly in. line

ae #

with the offending northwest-southeast runway. The camp”

operator’s complaint, based upon flights in the summer of

1956, described the location of the camp in direct line with

‘the runway, expressed: fear for the safety of the children

from planes flying with a “deafening roar” at ‘ ‘extremely

low altitudes * * * directly over the camp.”, referred to the.

children as having been “frightened to tears” from the

perilous proximity of the passing planes, and ‘requested

measures to reduce the hazard. The camp operated only

during weekdays, when the flight activities ebbed sharply

from the heightened weekend traffic, so we may surmise

how much more distressing the situation would have been

on weékends to permanent residents beneath, had there

been any. The complaint was investigated by the air sta-

.tion, but no corrective action consistent with discharge of

the Navy mission was deemed possible. If early conditions

-were so objectionable as to evoke such a complaint, know]l-

edge of them must be imputed to the plaintiffs who could

'#then or at any time prior to the apse of six years in July

1961 or thereabouts have instituted the present action,

rather than delaying the filing of this now time-barred suit

until December 1963, as they did.

The plaintiffs purchased the property for the purpose of .

subdividing and ‘building homes for sale. In mid-1955 they

approached both’ the Federal Housing Administration and

the local planning commission in order to obtain the bene-

fits of the FHA loan insurance program in the one case, and

to receive tentative approval of a preliminary development

plan in the other: In explanation’ of its refusal the’ FHA

remarked the proximity of the property to the overhead air

traffic, and cited its 1954 policy which prohibited loan insur-

ance coverage to properties: adjacent to airports. This, of

course, would not preclude private financing, if available,

but FHA coverage is highly desirable in the marketing of

new homes. It may be true as the -plaintiffs have averred

OER APR EEO SIR RA Png

that they were unaware of the extent and nature of the .

overflights until 1960, or that they did not know in 1955

that the runway channeling planes over their property had

been.extended so as to aggravate the problem, but the flight

facts were readily apparent to anyone who took the trouble

to see or to inquire, and the plaintiffs’ professed ignorance

of them was their own fault, as was their failure to learn

_ prior to purchasing the property the readily ascertainable

facts concerning expansion of the air station’s program.

The preliminary development plan which the plaintiffs

had presented informally to the local planning commission

in 1955 was returned for certain corrections. In 1960 the

plaintiffs revived their interest in developing the property

and submitted revised development plans to the planning’

commission, altering them again in early 1961 to meet zon-

ing requirements, only to have them rejected because of the

risk entailed in locating a high density residential develop-

ment in an approach zone of a major runway; The plain-

tiffs attribute the adverse action of the planning commis-

_ sion to the August 27, 1961 crash of an aircraft into a large

store hard by the station, which they urge brought homie

the hazards of living close to an airport. This, the plaintiffs

| ‘contend, -coupled with seven years of persistent jet flight

operations, accrued their cause of action by a process of

culmination, for it emphasized and advertised the risk fea-

ture with the result of making their property unmarketable .

for its intended use. This oversimplifies the actuality. The

plaintiffs voluntarily elected to postpone reapplying to the

planning commission until 1960 for reasons best known to

themselves, Had they pursued their initial application in

mission would have ignored the well-known facts of the

disadvantageous property location in relation to flight ac-

tivity, or would have been any more willing to sanction a

high density subdivision in 1955.than in 1961. The plaintiffs

RPM RO A

RR ee ee

° 30

overemphasize the effect of the 1961 crash on the c commis-

sion’s action, whereas the reason given by the commission

for refusing approval in 1961 would have been equally ap-.

- plicable to 1955, and no doubt as conclusive. The 1961 de-

cision of the commission was not “tacit acknowledgment”

that until the crash the public would purchase homes in

the development. Since then the plaintiffs have abandoned

their plans and the property remains on their hands, use-

** less and unused.

The contention that the cause of action accrued with the

crash of AuguSt 1961 because it established a risk factor

. which was theretofore unappreciated is, moreover, vitiated

by the record that in the 17 years preceding that incident

there had been 17 airplane. crashes on or in the vicinity of

the same airstation, not to mention four additional crashes

in the two following years. With this busy fatality, record

it is idle for the plaintiffs:to single out one of many such

accidents as the sudden cause of public recognition that the

property in suit was unsuitable for homesites from a‘risk |

“standpoint alone, independent of other harassing features

of living in an approach zone which the plaintiffs have pur-

posely underplayed to avoid the limitation defense. If it

could not be judicially noticed that hazards would attend

living in a development on the plaintiffs’ land bordering

the airport, the prevalence of accidents in the area over the

‘years would remove any: doubts. Furthermore, whereas

the degree of interference with a livable environment at the

end of a runway. might well vary with the type of aircraft,

their altitude, number, noise, and general nuisance, there

is no reason to believe that the risk inherent in overhead |

flights varies or is governed by these criteria. The crash of

a tiny pleasure plane into a home might beas disastrous to

_ its occupants and as likely but unpredictable in its occur-

rence as that of a ‘more sophisticated and cany military

aircraft.

It is not seen how the precedents on which the plaintiffs

principally rely aid them. Jensen v. United States, 158 Ct. |

Cl. 333, 305 F. 2d 444 (1962); United States v. 3276.21 Acres

of Land, 222 F. Supp. 887 (1963); Bacon v. United States,

155 Ct. Cl. 441, 295 F. 2d 936 (1961). All three support the

now common view that where the nature and degree-of the

disturbance to private property rights in approach zones

below the line of flight is substantially worsened and

rendered intolerable by the use of aircraft which, because

of their size, power, noise, altitude and flight characteris-

tics, or- because of structural changes in the airport layout,

impose a greater degree of interference in the enjoyment

of property over which they pass en route to or from their ~ |

operating runways than the conditions which previously

inhered, a significant depreciation in the market value of

the property as a direct result of the overflights is not only’

prerequisite to recovery of just compensation but also

_ marks the date of taking from which applicable statutes of

limitation commence to run and valuations for damage pur-

with the advent of the equipment creating the surcharge,

according to the time of total impact-in numbers and types

of aircraft, frequency and altitude of flights, noise, danger,

and other incidents which impair the normal exioyment of

property and hence its market value. Risk of crashes is but

. one of many elements to consider and, standing alone, has

not yet been held to trigger a taking of property in the

Constitutional sense or t6 amount to more than a trespass.

It is true that in the Bacon case, supra, a fortuitous crash

near the home of one plaintiff happened to coincide chrono-

logically with the culminating effect of a new breed of jet

aircraft (the F-84f) which, because of their number, flight

frequency, and significantly different operating character-

istics were more disruptive to dwellers in the approach

zone below their repeated passage than the types of aircraft

Sy SRS OI TE a IE SS ON ayer SRL NE ye & 2 Fe Oe re OR Lone

: .

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which they displaced or augmented, and thus effected not

only a taking but also caused the withdrawal of previously

available FHA, VA, and conventional: financing forms so

indispensable to marketability.

We cannot say with any confidence at what precise point |

after the first arrival of jets at Willow Grove in J uly 1955

they reached the level of substantial interference, but it is

clear that it was reached at least by the summer of 1956 —

when conditions prompted the convincing complaint by the

proprietor of the Silver Arrow Day Camp, ‘referred to

above. There is minor conflict in the testimony on the score

of low and frequent flights, but it is inconceivable that —

those witnesses of the plaintiffs who were on the property

and saw few or no aircraft skirting the treetops during

periods of prime activity could have been so oblivious of .

conditions which affected the day camp so profoundly. The

belying flight statistics, sketchy as they are in breakdown,

raise the question of the credibility of those who were there .

‘and profess to have seen or heard nothing untoward.

- The differences between the present case and those cited

by the plaintiffs are obvious. A long record of aircraft ac-

cidents antedating the 1961 crash by 17 years established,

unlike the Bacon case, that a serious potential risk not only

existed but-had materialized and was known throughout

the. Willow Grove area, so that the 1961 crash, no matter

how well-publicized it may have been, was only anticli-

mactic to the clear warnings which past events had sup-

plied so abundantly. Further, the withdrawal of-FHA and

VA loan guarantee protection in the Bacon case was con- .

temporaneous with the crash and the actionable peak of the

overflight burden, whereas in the present case the FHA

had precluded plaintiffs from its program in 1955, the over-

flights became onerous no later than thé*summer of 1956,

and the suit was filed seven years later. The refusal of the

‘planning commission to approve the plaintiffs’ development

ES ar Sr nr ht

plan in 1961, discussed earlier, may evidence the cause of

plaintiffs’ loss, but does not mark its inception, It could not

be argued that because thé planning commission rejected

the plaintiffs’ proposal in 1961 that the plaintiffs were for-

givably blind to the reasons in existence for the preceding -

. six years, or could not have taken appropriate action more

seasonably. The planning commission did not withhold its

rejection waiting for the overflights to become intolerable

or for a plane to crash; it was merely not called upon to

pass judgment until the plaintiffs applied. A clear line must

be drawn between cause and effect. :

The record contains voluminous data on valuation for the .

determination of damages, but it is not reflectéd herein be-

cause the plaintiffs have failed to establish the existence of

liability and the petition’should be dismissed. ee

——

IN THE UNITED STATES COURT OF CLAIMS.

“ok 7 * *% * ., * * * *

346-63 COE A. BOARDMAN, ET AL.

a 7 On

THE UNITED STATES.

* * * * « “ * * *

Before COWEN, Chief Judge, LARAMORE, DURFEE,

DAVIS, COLLINS, SKELTON, and NICHOLS, Judges, ex-

cept that REED, Justice (Ret.), sitting by designation, par-

ticipated in App, 6-65 in place of DAVIS, Judge.

ORDER. ©

These cases come before the court on motions for recon-

sideration, order vacating dismissal, rehearing, relief from

order, and for further relief under Rules 68 and 69 of the

Rules of this court, and‘on consideration thereof,

IT IS ORDERED this 13th day of October 1967, that said

motions be and the same are denied as follows: —

wk. % * * * . * * *

346-63 Coe A. Boardman, et al. Plaintiffs’ motion for re-

hearing. ts

7 * soc ace * * me x *

BY THE COURT,

on /s/ WILSON COWEN, ~

¥ _ Chief Judge.

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.