# Petition for Writ of Certiorari — Boardman v. United States > Briefs, arguments, decisions, and more. URL: https://www.frixlaw.com/law-library/documents/brief%3Amicro_IA40385603_1162%3A1 ## Record - **Collection:** Supreme Court brief - **Document type:** Petition for Writ of Certiorari - **Published:** January 1, 1968 - **Citation:** 390 U.S. 953 ## Text ob raha et i ibincinete win sascbucdets L . Saif LIBRARY 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 " = oe ; * . e si ’ ” n . \ . . 4 sa ; e : ° , | | . ° 5 | pi . | J s | R , | ; 4 as | | : : ; | ‘ : | \ . 4 . ie : | a Q ’ | | : . 2 ? ; | . ; : , = . | | | \ . : | i] F | : \ . | | a a > : . : | . . ee a . | . ¢ | | | . ~ . » | | . | ° * xy . *. | . ’ | ; i . . | . - r) oie | | ? | | > . ‘ : | . . | \ ‘ . : . — ; - ¥. : | a % | . f H . se ; | 4 | | \ © ; : | ‘ ? t . | | . ns . . : ; . aa : = e : . | . ; | ont + > a aaa alae PRENTICE rene * PEAT STO IE Pe NENT as ‘a e ¥ eS Bias * 7? oo 2? . 7 “es , » Ry ww x 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. | Ss ? _ 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 # (c) J urisdiction ie consider this petition is conferred © 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? O 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 6. 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- . ni a MAN hil Ha Aiba aay Delica its tee Naan, tik Alana tig “g . nat Rete 6 BAD 3.5 de EIEN 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: | 9 “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. 11 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. SR UT a Rt AP Dhaai Bike Uh ae alent otra * hey gulithed ordek Aeadabins tei ores 12 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, 13 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 : -~* > aaa Ei aie Rac tal Kinin MN at nai ne each entero bea hie han Si aly Wee Bn sn ti cat oils ea Matin’ aor = 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- 23 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, * t> _ 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 24 ? ‘APPENDIX. IN THE UNITED STATES. COURT OF CLAIMS pa ‘ No, 346-63. (Degided May 12, 1967) ‘. Vv. , ‘THE UNITED STATES. ‘ ee - 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 25 _ 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 ° , 27 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 29 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 1955 there is no reason to believe that the planning com- © 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. 31 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- poses are to be measured. This.may or may not coincide © 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 : . c 32 Tee lee, } 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. 34 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. --- Source: Frix Law Library, https://www.frixlaw.com/law-library/documents/brief%3Amicro_IA40385603_1162%3A1. Public record. Not legal advice.