328 U.S. 256
Argued May 1, 1946.
Decided May 27, 1946.
Action by Thomas Lee
Causby and wife, Tinie Causby, against the United States, to recover for
the alleged taking by defendant of plaintiffs' home and chicken farm which
was adjacent to a municipal airport leased by the defendant.
To review a judgment of the Court of Claims in favor of the
plaintiffs, 60 F.Supp. 751, the United States brings certiorari.
Reversed and remanded.
Mr. Justice BLACK and
Mr. Justice BURTON dissenting.
On Writ of Certiorari
to the Court of Claims.
257 Mr. Walter J. Cummings, Jr., of Washington, D.C., for petitioner.
Mr. William E. Comer,
of Greensboro, N.C., for respondent.
Mr. Justice DOUGLAS delivered the opinion of the Court.
This is a case of
first impression. The problem
presented is whether respondents' property was taken within the meaning of
the Fifth Amendment by frequent and regular flights of army and navy
aircraft over respondents' land at low altitudes.
The Court of Claims held that there was a taking and entered
judgment for respondent, one judge dissenting.
60 F.Supp. 751. The
case is here on a petition for a writ of certiorari which we granted
becuase of the importance of the question presented.
Respondents own 2.8
acres near an airport outside of Greensboro, North Carolina.
It has on it a dwelling house, and also various outbuildings which
were mainly used for raising chickens. The end of the airport's northwest-southeast
runway is 2,220 feet from respondents' barn and 2,275 feet from their
house. The path of glide to
this runway passes directly over the property -- which is 100 feet wide
and 1,200 feet long. The 30
to 1 safe glide angle [FN1] approved by the Civil Aeronautics Authority
[FN2] passes over this property at 83 feet, which is 67 feet above the
house, 63 feet above the barn and 18 feet above the highest tree. [FN3]
The use by the United States of this airport is pursuant to a lease
executed in May, 1942, for a term commencing June 1, 1942 and ending June
30, 1942, with a provision for renewals until June 30, 1967, or six
259 months after the end of the national emergency, whichever is the
FN1. A 30 to 1 glide angle
means one foot of elevation or descent for every 30 feet of horizontal
FN2 Military planes
are subject to the rules of the Civil Aeronautics Board where, as in the
present case, there are no Army or Navy regulations to the contrary.
Cameron v. Civil Aeronautics Board, 7 Cir., 140 F.2d 482.
The house is approximately 16 feet high, the barn 20 feet, and the tallest
tree 65 feet.
Various aircraft of the United States use this airport --
bombers, transports and fighters. The
direction of the prevailing wind determines when a particular runway is
used. The north-west-southeast
runway in question is used about four per cent of the time in taking off
and about seven per cent of the time in landing.
Since the United States began operations in May, 1942, its four-motored
heavy bombers, other planes of the heavier type, and its fighter planes
have frequently passed over respondents' land buildings in considerable
numbers and rather close together. They
come close enough at times to appear barely to miss the tops of the trees
and at times so close to the tops of the trees as to blow the old leaves
off. The noise is startling.
And at night the glare from the
planes brightly lights up the place.
As a result of the noise, respondents had to give up their chicken
business. As many as six to
ten of their chickens were killed in one day by flying into the walls from
fright. The total chickens
lost in that manner was about 150. Production
also fell off. The result was
the destruction of the use of the property as a commercial chicken farm. Respondents are frequently deprived of their sleep and the
family has become nervous and frightened. Although there have been no
airplane accidents on respondents' property, there have been several
accidents near the airport and close to respondents' place.
These are the essential facts found by the Court of Claims.
On the basis of these facts, it found that respondents' property
had depreciated in value. It held that the United States had taken an easement over the
property on June 1, 1942, and that the value of the property destroyed and
the easement taken was $2,000.
260 I. The United States
relies on the Air Commerce Act of 1926, 44 Stat. 568, 49 U.S.C. s 171 et
seq., 49 U.S.C.A. s 171 et seq., as amended by the Civil Aeronautics Act
of 1938, 52 Stat. 973, 49 U.S.C. s 401 et seq., 49 U.S.C.A. s 401 et seq.
Under those statutes the United States has 'complete and exclusive
national sovereignty in the air space' over this country. 49 U.S.C. s
176(a), 49 U.S.C.A. s 176(a). They grant any citizen of the United States 'a public right
of freedom of transit in air commerce [FN4] through the navigable air
space of the United States.' 49
U.S.C. s 403, 49 U.S.C.A. s 403. And
'navigable air space' is defined as 'airspace above the minimum safe
altitudes of flight prescribed by the Civil Aeronautics Authority.' 49 U.S.C. s 180, 49 U.S.C.A. s 180. And it is provided that 'such navigable airspace shall be
subject to a public right of freedom of interstate and foreign air
It is, therefore, argued that since these flights were within the
minimum safe altitudes of flight which had been prescribed, they were an
exercise of the declared right of travel through the airspace.
The United States concludes that when flights are made within the
navigable airspace without any physical invasion of the property of the
landowners, there has been no taking of property.
It says that at most there was merely incidental damage occurring
as a consequence of authorized air navigation.
It also argues that the landowner does not own superadjacent
airspace which he has not subjected to possession by the erection of
structures or other occupancy. Moreover,
it is argued that even if the United States took airspace owned by
respondents, no compensable damage was shown.
Any damages are said to be merely consequential for which no
compensation may be obtained under the Fifth Amendment.
FN4 'Air commerce' is defined as including 'any operation or
navigation of aircraft which directly affects, or which may endanger
safety in, interstate, overseas, or foreign air commerce.' 49 U.S.C. s 401(3), 49 U.S.C.A. s 401(3).
It is ancient doctrine
that at common law ownership of the land extended to the periphery of the
universe -- Cujus 261 est solum
ejus est usque ad coelum. [FN5] But that doctrine has no place in the
modern world. The air is a
public highway, as Congress has declared.
Were that not true, every transcontinental flight would subject the
operator to countless trespass suits. Common sense revolts at the idea.
To recognize such private claims to the airspace would clog these
highways, seriously interfere with their control and development in the
public interest, and transfer into private ownership that to which only
the public has a just claim.
FN5 1 Coke, Institutes, 19th Ed. 1832, ch. 1, s 1(4a); 2
Blackstone, Commentaries, Lewis Ed. 1902, p. 18; 3 Kent, Commentaries,
Gould Ed. 1896, p. 621.
But that general
principle does not control the present case.
For the United States conceded on oral argument that if the flights
over respondents' property rendered it uninhabitable, there would be a
taking compensable under the Fifth Amendment.
It is the owner's loss, not the
taker's gain, which is the measure of the value of the property taken.
United States v. Miller, 317 U.S. 369, 63 S.Ct. 276, 87 L.Ed. 336,
147 A.L.R. 55. Market value fairly determined is the normal measure of the
And that value may reflect the use to which the land could readily
be converted, as well as the existing use.
United States v. Powelson, 319 U.S. 266, 275, 63 S.Ct. 1047, 1053,
87 L.Ed. 1390, and cases cited. If,
by reason of the frequency and altitude of the flights, respondents could
not use this land for any purpose, their loss would be complete. [FN6] It
would be as complete as if the United States had entered upon the surface
of the land and taken exclusive possession of it.
FN6 The destruction of all uses of the property by flooding has
been held to constitute a taking. Pumpelly
v. Green Bay Co., 13 Wall. 166, 20 L.Ed. 557; United States v. Lynah, 188
U.S. 445, 23 S.Ct. 349, 47 L.Ed. 539; United States v. Welch, 217 U.S.
333, 30 S.Ct. 527, 54 L.Ed. 787, 28 L.R.A.,N.S., 385, 19 Ann.Cas. 680.
We agree that in those circumstances there would be a taking.
Though it would be only an easement of flight 262 which was taken, that easement, if permanent and not merely
temporary, normally would be the equivalent of a fee interest.
It would be a definite exercise of complete dominion and control
over the surface of the land. The fact that the planes never touched the surface would be
as irrelevant as the absence in this day of the feudal livery of seisin on
the transfer of real estate. The
owner's right to possess and exploit the land -- that is to say, his
beneficial ownership of it -- would be destroyed. It
would not be a case of incidental damages arising from a legalized
nuisance such as was involved in Richards v. Washington Terminal Co., 233
U.S. 546, 34 S.Ct. 654, 58 L.Ed. 1088, L.R.A.1915A, 887.
In that case property owners whose lands adjoined a railroad line
were denied recovery for damages resulting from the noise, vibrations,
smoke and the like, incidental to the operations of the trains.
In the supposed case the line of flight is over the land.
And the land is appropriated as directly and completely as if it
were used for the runways themselves.
There is no material
difference between the supposed case and the present one, except that here
enjoyment and use of the land are not completely destroyed. But that does
not seem to us to be controlling. The
path of glide for airplanes might reduce a valuable factory site to
grazing land, an orchard to a vegetable patch, a residential section to a
wheat field. Some value would
remain. But the use of the
airspace immediately above the land would limit the utility of the land
and cause a diminution in its value. [FN7] That was the philosophy of
Portsmouth Harbor Land & Hotel Co. v.
263 United States, 260 U.S. 327, 43 S.Ct. 135, 67 L.Ed. 287.
In that case the petition alleged that the United States erected a
fort on nearby land, established a battery and a fire control station
there, and fired guns over petitioner's land.
The Court, speaking through Mr. Justice Holmes, reversed the Court
of Claims which dismissed the petition on a demurrer, holding that 'the
specific facts set forth would warrant a finding that a servitude has been
imposed.' [FN8] 260 U.S. at page 330, 43 S.Ct. at
page 137, 67 L.Ed. 287. And
see Delta Air Corp. v. Kersey, 193 Ga. 862, 20 S.E.2d 245, 140 A.L.R.
1352. Cf. United States v. 357.25 Acres of Land, D.C., 55 F.Supp. 461.
FN7 It was stated in United States v. General Motors Corp., 323
U.S. 373, 378, 65 S.Ct. 357, 359, 89 L.Ed. 311, 156 A.L.R. 390, 'The
courts have held that the deprivation of the former owner rather than the
accretion of a right or interest to the sovereign constitutes the taking.
Governmental action short of acquisition of title or occupancy has been
held, if its effects are so complete as to deprive the owner of all or
most of his interest in the subject matter, to amount to a taking.'
The present case falls short of the General Motors case. This is
not a case where the United States has merely destroyed property.
It is using a part of it for the flight of its planes.
Cf. Warren Township School Dist. v. Detroit, 308 Mich. 460, 14
N.W.2d 134; Smith v. New England Aircraft Co., 270 Mass. 511, 170 N.E.
385, 69 A.L.R. 300; Burnham v. Beverly Airways, Inc., 311 Mass. 628, 42
FN8 On remand the allegations in the petition were found not to be
supported by the facts. 64
The fact that the path of glide taken by the planes was that
approved by the Civil Aeronautics Authority does not change the result.
The navigable airspace which Congress has placed in the public
domain is 'airspace above the minimum safe altitudes of flight prescribed
by the Civil Aeronautics Authority.'
49 U.S.C. s 180, 49 U.S.C.A. s 180.
If that agency prescribed 83 feet as the minimum safe altitude,
then we would have presented the question of the validity of the
regulation. But nothing of
the sort has been done. The
path of glide governs the method of operating -- of landing or taking off.
The altitude required for that operation is not the minimum safe
altitude of flight which is the downward reach of the navigable airspace.
The minimum prescribed by the authority is 500 feet during the day
and 1000 feet at night for air carriers (Civil Air Regulations, Pt. 61, ss
61.7400, 61.7401, Code Fed.Reg.Cum.Supp., Tit. 14, ch. 1) and from 300 to
1000 feet for 264 other
aircraft depending on the type of plane and the character of the terrain. Id., Pt. 60, ss 60.350-60.3505, Fed.Reg.Cum.Supp., supra.
Hence, the flights in question were not within the navigable
airspace which Congress placed within the public domain.
If any airspace needed for landing or taking off were included,
flights which were so close to the land as to render it uninhabitable
would be immune. But the
United States concedes, as we have said, that in that event there would be
a taking. Thus, it is
apparent that the path of glide is not the minimum safe altitude of flight
within the meaning of the statute. The
Civil Aeronautics Authority has, of course, the power to prescribe air
traffic rules. But Congress
has defined navigable airspace only in terms of one of them -- the minimum
safe altitudes of flight.
We have said that the airspace is a public highway.
Yet it is obvious that if the landowner is to have full enjoyment
of the land, he must have exclusive control of the immediate reaches of
the enveloping atmosphere. Otherwise buildings could not be erected, trees
could not be planted, and even fences could not be run.
The principle is recognized when the law gives a remedy in case
overhanging structures are erected on adjoining land. [FN9] The landowner
owns at least as much of the space above the ground as the can occupy or
use in connection with the land. See
Hinman v. Pacific Air Transport, 9 Cir., 84 F.2d 755.
The fact that he does not occupy it in a physical sense -- by the
erection of buildings and the like -- is not material.
As we have said, the flight of airplanes, which skim the surface
but do not touch it, is as much an appropriation of the use of the land as
a more conventional entry upon it. We
would not doubt that if the United States erected
265 an elevated railway over respondents' land at the precise altitude
where its planes now fly, there would be a partial taking, even though
none of the supports of the structure rested on the land. [FN10] The
reason is that there would be an intrusion so immediate and direct as to subtract from the
owner's full enjoyment of the property and to limit his exploitation of
it. While the owner does not
in any physical manner occupy that stratum of airspace or make use of it
in the conventional sense, he does use it in somewhat the same sense that
space left between buildings for the purpose of light and air is used.
The superadjacent airspace at this low altitude is so close to the
land that continuous invasions of it affect the use of the surface of the
land itself. We think that
the landowner, as an incident to his ownership, has a claim to it and that
invasions of it are in the same category as invasions of the surface.
FN9 Baten's Case, 9 Coke R. 53b; Meyer v. Metzler, 51 Cal. 142;
Codman v. Evans, 7 Allen 431, 89 Mass. 431; Harrington v. McCarthy, 169
Mass. 492, 48 N.E. 278, 61 Am.St.Rep. 298.
See Ball, The Vertical Extent of Ownership in Land, 76 U.Pa.L.Rev.
FN10 It was held in Butler v. Frontier Telephone Co., 186 N.Y. 486,
79 N.E. 716, 11 L.R.A.,N.S., 920, 116 Am.St.Rep. 563, 9 Ann.Cas. 858, that
ejectment would lie where a telephone wire was strung across the
plaintiff's property, even though it did not touch the soil. The court stated pages 491, 492 of 186 N.Y., page 718 of 79
N.E.: '* * * an owner is entitled to the absolute and undisturbed
possession of every part of his premises, including the space above, as
much as a mine beneath. If
the wire had been a huge cable, several inches thick and but a foot above
the ground, there would have been a difference in degree, but not in
principle. Expand the wire into a beam supported by posts standing upon
abutting lots without touching the surface of plaintiff's land, and the
difference would still be one of degree only.
Enlarge the beam into a bridge, and yet space only would be
occupied. Erect a house upon
the bridge, and the air above the surface of the land would alone be
FN11 See Bouve, Private Ownership of Navigable Airspace Under the
Commerce Clause, 21 Amer.Bar Assoc.Journ. 416, 421‑‑422; Hise,
Ownership and Sovereignty of the Air, 16 Ia.L.Rev. 169; Eubank, The
Doctrine of the Airspace Zone of Effective Possession, 12 Boston
In this case, as in
Portsmouth Harbor Land & Hotel Co. v. United States, supra, the
damages were not merely consequential.
They were the product of a direct invasion of respondents' domain.
266 As stated in United States v. Cress, 243 U.S. 316, 328, 37
S.Ct. 380, 385, 61 L.Ed. 746, '* * * it is the character of the invasion,
not the amount of damage resulting from it, so long as the damage is
substantial, that determines the question whether it is a taking.'
We said in United
States v. Powelson, supra, 319 U.S. at page 279, 63 S.Ct. at page 1054, 87
L.Ed. 1390, that while the meaning of 'property' as used in the Fifth
Amendment was a federal question, 'it will normally obtain its content by
reference to local law.' If
we look to North Carolina law, we reach the same result. Sovereignty in
the airspace rests in the State 'except where granted to and assumed by
the United States.' Gen.Stats.
1943, s 63-11. The flight of aircraft is lawful 'unless at such a low
altitude as to interfere with the then existing use to which the land or
water, or the space over the land or water, is put by the owner, or unless
so conducted as to be imminently dangerous to persons or property lawfully
on the land or water beneath.' Id.,
s 63-13. Subject to that right of flight, 'ownership of the space
above the lands and waters of this State is declared to be vested in the
several owners of the surface beneath.'
Id. s 63-12. Our
holding that there was an invasion of respondents' property is thus not
inconsistent with the local law governing a landowner's claim to the
immediate reaches of the superadjacent airspace.
The airplane is part of the modern environment of life, and the
inconveniences which it causes are normally not compensable under the
Fifth Amendment. The
airspace, apart from the immediate reaches above the land, is part of the
public domain. We need not
determine at this time what those precise limits are.
Flights over private land are not a taking, unless they are so low
and so frequent as to be a direct and immediate interference with the
enjoyment and use of the land. We
need not speculate on that phase of the present case. For the findings of
the Court 267 of Claims plainly establish that there was a diminution in
value of the property and that the frequent, low-level flights were the
direct and immediate cause. We
agree with the Court of Claims that a servitude has been imposed upon the
II. By s 145(1) of the
Judicial Code, 28 U.S.C. s 250(1), 28 U.S.C.A. s 250(1), the Court of
Claims has jurisdiction to hear and determine 'All claims (except for
pensions) founded upon the Constitution of the United States or * * * upon
any contract, express or implied, with the Government of the United
We need not decide
whether repeated trespasses might give rise to an implied contract.
Cf. Portsmouth Harbor Land & Hotel Co. v. United States, supra.
If there is a taking, the claim is 'founded upon the Constitution' and
within the jurisdiction of
the Court of Claims to hear and determine.
See Hollister v. Benedict & Burnham Mfg. Co., 113 U.S. 59, 67,
5 S.Ct. 717, 721, 28 L.Ed. 901; Hurley v. Kincaid, 285 U.S. 95, 104, 52
S.Ct. 267, 269, 76 L.Ed. 637; Yearsley v. W. A. Ross Construction Co., 309
U.S. 18, 21, 60 S.Ct. 413, 415, 84 L.Ed. 554.
Thus, the jurisdiction of the Court of Claims in this case is
III. The Court of
Claims held, as we have noted, that an easement was taken. But the findings of fact contain no precise description as to
its nature. It is not
described in terms of frequency of flight, permissible altitude, or type
of airplane. Nor is there a
finding as to whether the easement taken was temporary or permanent.
Yet an accurate description of the property taken is essential,
since that interest vests in the United States.
United States v. Cress, supra, 243 U.S. 328, 329, 37 S.Ct. 385,
386, 61 L.Ed. 746, and cases cited. It is true that the Court of Claims
stated in its opinion that the easement taken was permanent.
But the deficiency in findings cannot be rectified by statements in
the opinion. United States v. Esnault‑Pelterie, 299 U.S. 201, 205,
206, 57 S.Ct. 159, 161, 162, 81 L.Ed. 123; United States v. Seminole
Nation, 299 U.S. 417, 422, 57 S.Ct. 283, 287, 81 L.Ed. 316.
Findings of fact on every 'material issue' are a statutory
268 requirement. 53 Stat.
752, 28 U.S.C. s 288, 28 U.S.C.A. s 288.
The importance of findings of fact based on evidence is emphasized
here by the Court of Claims' treatment of the nature of the easement.
It stated in its opinion that the easement was permanent because
the United States 'no doubt intended to make some sort of arrangement
whereby it could use the airport for its military planes whenever it had
occasion to do so.' (60 F.Supp. 758.) That sounds more like conjecture
rather than a conclusion from evidence; and if so, it would not be a
proper foundation for liability of the United States.
We do not stop to examine the evidence to determine whether it
would support such a finding, if made.
For that is not our function.
United States v. Esnault-Pelterie, supra, 299 U.S. at page 206, 57
S.Ct. at page 162, 81 L.Ed. 123.
Since on this record
it is not clear whether the easement taken is a permanent or a temporary
one, it would be premature for us to consider whether the amount of the
award made by the Court of Claims was proper.
The judgment is
reversed and the cause is remanded to the Court of Claims so that it may
make the necessary findings in conformity with this opinion.
Mr. Justice JACKSON
took no part in the consideration or decision of this case.
Mr. Justice BLACK,
The Fifth Amendment
provides that 'private property' shall not 'be taken for public use,
without just compensation.' The
Court holds today that the Government has 'taken' respondents' property by
repeatedly flying Army bombers directly above respondents' land at a
height of eighty‑three feet where the light and noise from these
planes caused respondents to lose sleep and their chickens to be killed.
Since the effect of the Court's decision is 269 to limit, by the imposition of relatively absolute
Constitutional barriers, possible future adjustments through legislation
and regulation which might become necessary with the growth of air
transportation, and since in my view the Constitution does not contain
such barriers, I dissent.
The following is a
brief statement of the background and of the events that the Court's
opinion terms a 'taking' within the meaning of the Fifth Amendment: Since
1928 there has been an airfield some eight miles from Greensboro, North
Carolina. In April, 1942,
this airport was taken over by the Greensboro-High Point Municipal Airport
Authority and it has since then operated as a municipal airport.
In 1942 the Government, by contract, obtained the right to use the
field 'concurrently, jointly,
and in common' with other users. Years
before, in 1934, respondents had bought their property, located more than
one-third of a mile from the airport.
Private planes from the airport flew over their land and farm
buildings from 1934 to 1942 and are still doing so.
But though these planes disturbed respondents to some extent, Army
bombers, which started to fly over the land in 1942 at a height of eighty-three
feet, disturbed them more because they were larger, came over more
frequently, made a louder noise, and at night a greater glare was caused
by their lights. This noise and glare disturbed respondents' sleep, frightened
them, and made them nervous. The
noise and light also frightened respondents' chickens so much that many of
them flew against buildings and were killed.
The Court's opinion
seems to indicate that the mere flying of planes through the column of air
directly above respondents' land does not constitute a 'taking'.
Consequently, it appears to be noise and glare, to the extent and
under the circumstances shown here, which make the government a seizer of
private property. But the
allegation 270 of noise and
glare resulting in damages, constitutes at best an action in tort where
there might be recovery if the noise and light constituted a nuisance, a
violation of a statute, [FN1] or were the result of negligence. [FN2] But
the Government has not consented to be sued in the Court of Claims except
in actions based on express or implied contract.
And there is no implied contract here, unless by reason of the
noise and glare caused by the bombers the Government can be said to have
'taken' respondents' property in a Constitutional sense. The concept of taking property as used in the Constitution
has heretofore never been given so sweeping a meaning. The Court's opinion presents no case where a man who makes
noise or shines light onto his neighbor's property has been ejected from
that property for wrongfully taking possession of it. Nor would anyone take seriously a claim that noisy
automobiles passing on a highway are taking wrongful possession of the
homes located thereon, or that a city elevated train which greatly
interferes with the sleep of those who live next to it wrongfully takes
their property. Even the one
case in this Court which in considering the sufficiency of a complaint
gave the most elastic meaning to the phrase 'private property be taken' as
used in the Fifth Amendment, did not go so far. Portsmouth Harbor Land
& Hotel Co. v. United States, 260 U.S.
 327, 43 S.Ct. 135, 67 L.Ed. 287.
I am not willing, nor do I think the Constitution and the decisions
authorize me, to extend that phrase so as to guarantee an absolute
Constitutional right to relief not subject to legislative change, which is
based on averments that at best show mere torts committed by Government
agents while flying over land. The
future adjustment of the rights and remedies of property owners, which
might be found necessary because of the flight of planes at safe
altitudes, should, especially in view of the imminent expansion of air
navigation, be left where I think the Constitution left it, with Congress.
FN1 Neiswonger v. Goodyear Tire & Rubber Co., D.C., 35 F.2d
FN2 As to the damage to chickens, Judge Madden, dissenting from
this judgment against the Government said, 'When railroads were new,
cattle in fields in sight and hearing of the trains were alarmed, thinking
that the great moving objects would turn aside and harm them.
Horses ran away at
the sight and sound of a train or a threshing machine engine. The farmer's chickens have to get over being alarmed at the
incredible racket of the tractor starting up suddenly in the shed
adjoining the chicken house. These sights and noises are a part of our
world, and airplanes are now and will be to a greater degree, likewise a
part of it. These
disturbances should not be treated as torts, in the case of the airplane,
any more than they are so treated in the case of the railroad or public
Nor do I reach a
different conclusion because of the fact that the particular circumstance
which under the Court's opinion makes the tort here absolutely actionable, is the passing of planes through a column of air at an elevation of
eighty-three feet directly over respondents' property.
It is inconceivable to me that the Constitution guarantees that the
airspace of this Nation needed for air navigation, is owned by the
particular persons who happen to own the land beneath to the same degree
as they own the surface below. [FN3] No rigid Constitutional rule, in my
judgment, commands that the air must be considered as marked off into
separate compartments by imaginary metes and bounds in order to
synchronize air ownership with land ownership. I think that the Constitution entrusts Congress with full
power to control all navigable airspace.
Congress has already acted under that power.
It has by statute, 44 Stat. 568, 52 Stat. 973, provided that 'the
United States of America is * * * to possess and exercise complete and
exclusive national sovereignty in the
272 air space (over) the United States.'
This was done under the assumption that the Commerce Clause of the
Constitution gave Congress the same plenary power to control navigable
airspace as its plenary power over navigable waters.
H. Rep. No. 572, 69th Cong., 1st Sess., p. 10; H. Rep. No. 1162,
69th Cong., 1st Sess., p. 14; United States v. Commodore Park, Inc., 324
U.S. 386, 65 S.Ct. 803, 89 L.Ed. 1017.
To make sure that the airspace used for air navigation would remain
free, Congress further declared that 'navigable airspace shall be subject
to a public right of freedom of interstate and foreign air navigation,'
and finally stated emphatically that there exists 'a public right of
freedom of transit * * * through the navigable airspace of the United
States.' Congress thus declared that the air is free, not subject to
private ownership, and not subject to delimitation by the courts.
Congress and those acting under its authority were the only ones
who had power to control and regulate the flight of planes.
'Navigable air-space' was defined as 'airspace above the minimum
safe altitudes of flight prescribed by the Civil Aeronautics Authority.'
49 U.S.C. s 180, 49 U.S.C.A. s 180.
Thus, Congress has given the Civil Aeronautics Authority exclusive
power to determine what is navigable airspace subject to its exclusive
control. This power derives
specifically from the Section which authorizes the Authority to prescribe
'air traffic rules governing the flight of, and for the navigation,
protection, and identification of, aircraft, including rules as to safe
altitudes of flight and rules for the prevention of collisions between
aircraft, and between aircraft and land or water vehicles.' 49 U.S.C.A. s
551. Here there was no showing that the bombers flying over respondents'
land violated any rule or regulation of the Civil Aeronautics Authority.
Yet, unless we hold the Act unconstitutional, at least such a
showing would be necessary before the courts could act without interfering
with the exclusive authority which Congress gave to the administrative
agency. Not even a 273
showing that the Authority has not acted at all would be sufficient. For
in that event, were the courts to have any authority to act in this case
at all, they should stay their hand till the Authority has acted.
FN3 The House in its report on the Air Commerce Act of 1926 stated:
'The public right of flight in the navigable air space owes its source to
the same constitutional basis which, under decisions of the Supreme Court,
has given rise to a public easement of navigation in the navigable waters
of the United States, regardless of the ownership of adjacent or subjacent
soil'. House Report No. 572,
69th Congress, First Session, page 10.
The broad provisions
of the Congressional statute cannot properly be circumscribed by making a
distinction as the Court's opinion does between rules of safe altitude of
flight while on the level of cross-country flight and rules of safe
altitude during landing and taking off.
First, such a distinction can not be maintained from the practical
standpoint. It is unlikely that Congress intended that the Authority
prescribe safe altitudes for planes making cross-country flights, while at
the same time it left the more hazardous landing and take-off operations
unregulated. The legislative
history, moreover, clearly
shows that the Authority's power to prescribe air traffic rules includes
the power to make rules governing landing and take-off.
Nor is the Court justified in ignoring that history by labeling
rules of safe altitude while on the level of cross-country flight as rules
prescribing the safe altitude proper and rules governing take-off and
landing as rules of operation. For
the Conference Report explicitly states that such distinctions were
purposely eliminated from the original House Bill in order that the
Section on air traffic rules 'might be given the broadest construction by
the * * * (Civil Aeronautics Authority) * * * and the courts.' [FN4] In
construing the statute narrowly the Court
274 thwarts the intent of Congress.
A proper broad construction, such as Congress commanded, would not
permit the Court to decide what it has today without declaring the Act of
Congress unconstitutional. I
think the Act given the broad construction intended is constitutional.
FN4 The full statement read: 'The substitute provides that the
Secretary shall by regulation establish air traffic rules for the
navigation, protection, and identification of all aircraft, including
rules for the safe altitudes of flight and rules for the prevention of
collisions between vessels and aircraft.
The provision as to rules for taking off and alighting, for
instance, was eliminated as unnecessary specification, for the reason that
such rules are but one class of air traffic rules for the navigation and
protection of aircraft. Rules as to marking were eliminated for the reason that such
rules were fairly included within the scope of air rules for the
identification of aircraft. No
attempt is made by either the Senate bill or the House amendment to fully
define the various classes of rules that would fall within the scope of
air traffic traffic rules, as, for instance, lights and signals along
airways and at airports and upon emergency landing fields.
In general, these rules would relate to the same subjects as those
covered by navigation laws and regulations and by the various State motor
vehicle traffic codes. As
noted above, surplusage was eliminated
in specifying particular air traffic rules in order that the term might be
given the broadest possible construction by the Department of Commerce and
the courts.' House Report No.
1162, 69th Congress, 1st Session, p. 12. That the rules for landing and
take-off are rules prescribing 'minimum safe altitudes of flight' is shown
by the following further statement in the House Report: '* * * the minimum
safe altitudes of flight * * * would vary with the terrain and location of
cities and would coincide with the surface of the land or water at
airports.' Id. at p. 14.
No greater confusion
could be brought about in the coming age of air transportation than that
which would result were courts by Constitutional interpretation to hamper
Congress in its efforts to keep the air free.
Old concepts of private ownership of land should not be introduced
into the field of air regulation. I
have no doubt that Congress will, if not handicapped by judicial
interpretations of the Constitution, preserve the freedom of the air, and
at the same time, satisfy the just claims of aggrieved persons.
The noise of newer, larger, and more powerful planes may grow
louder and louder and disturb people more and more.
But the solution of the problems precipitated by these
technological advances and new ways of living cannot come about through
the application of rigid Constitutional restraints formulated and enforced
by the courts. What adjustments may have to be made, only the future can
reveal. It seems certain, however,
275 the courts do not possess the techniques or the personnel to
consider and act upon the complex combinations of factors entering into
the problems. The contribution of courts must be made through the awarding
of damages for injuries suffered from the flying of planes, or by the
granting of injunctions to prohibit their flying.
When these two simple remedial devices are elevated to a
Constitutional level under the Fifth Amendment, as the Court today seems
to have done, they can stand as obstacles to better adapted techniques
that might be offered by experienced experts and accepted by Congress.
Today's opinion is, I fear, an opening wedge for an unwarranted
judicial interference with the power of Congress to develop solutions for
new and vital and national problems.
In my opinion this case
should be reversed on the ground that there has been no 'taking' in the
Mr. Justice BURTON
joins in this dissent.