Griggs v. County of Allegheny, Pennsylvania/Opinion of the Court

by William O. Douglas

United States Supreme Court

369 U.S. 84

Griggs  v.  County of Allegheny, Pennsylvania

 Argued: Jan. 16, 1962. --- Decided: March 5, 1962

This case is here on a petition for a writ of certiorari to the Supreme Court of Pennsylvania which we granted (366 U.S. 943, 81 S.Ct. 1672, 6 L.Ed.2d 854) because its decision (402 Pa. 411, 168 A.2d 123) seemed to be in conflict with United States v. Causby, 328 U.S. 256, 66 S.Ct. 1062, 90 L.Ed. 1206. The question is whether respondent has taken an air easement over petitioner's property for which it must pay just compensation as required by the Fourteenth Amendment. Chicago, B. & Q.R. Co. v. Chicago, 166 U.S. 226, 241, 17 S.Ct. 581, 41 L.Ed. 979. The Court of Common Pleas, pursuant to customary Pennsylvania procedure, appointed a Board of Viewers to determine whether there had been a 'taking' and, if so, the amount of compensation due. The Board of Viewers met upon the property; it held a hearing, and in its report found that there had been a 'taking' by respondent of an air easement over petitioner's property and that the compensation payable (damages suffered) was $12,690. The Court of Common Pleas dismissed the exceptions of each party to the Board's report. On appeal, the Supreme Court of Pennsylvania decided, by a divided vote, that if there were a 'taking' in the constitutional sense, the respondent was not liable.

Respondent owns and maintains the Greater Pittsburgh Airport on land which it purchased to provide airport and air-transport facilities. The airport was designed for public use in conformity with the rules and regulations of the Civil Aeronautics Administration within the scope of the National Airport Plan provided for in 49 U.S.C. § 1101 et seq., 49 U.S.C.A. § 1101 et seq. By this Act the federal Administrator is authorized and directed to prepare and continually revise a 'national plan for the development of public airports.' § 1102(a). For this purpose he is authorized to make grants to 'sponsors' for airport development. §§ 1103, 1104. Provision is made for apportionment of grants for this purpose among the States. § 1105. The applications for projects must follow the standards prescribed by the Administrator. § 1108.

It is provided in § 1108(d) that: 'No project shall be approved by the Administrator with respect to any airport unless a public agency holds good title, satisfactory to the Administrator, to the landing area of such airport or the site therefor, or gives assurance satisfactory to the Administrator that such title will be acquired.' The United States agrees to share from 50% to 75% of the 'allowable project costs,' depending, so far as material here, on the class and location of the airport. § 1109.

Allowable costs payable by the Federal Government include 'costs of acquiring land or interests therein or easements through or other interests in air space * * *.' § 1112(a)(2).

Respondent executed three agreements with the Administrator of Civil Aeronautics in which it agreed, among other things, to abide by and adhere to the Rules and Regulations of C.A.A. and to 'maintain a master plan of the airport,' including 'approach areas.' It was provided that the 'airport approach standards to be followed in this connection shall be those established by the Administrator'; and it was also agreed that respondent 'will acquire such easements or other interests in lands and air space as may be necessary to perform the covenants of this paragraph.' The 'master plan' laid out and submitted by respondent included the required 'approach areas'; and that 'master plan' was approved. One 'approach area' was to the northeast runway. As designed and approved, it passed over petitioner's home which is 3,250 feet from the end of that runway. The elevation at the end of that runway is 1,150.50 feet above sea level; the door sill at petitioner's residence, 1,183.64 feet; the top of petitioner's chimney, 1,219.64 feet. The slope gradient of the approach area is as 40 is to 3,250 feet or 81 feet, which leaves a clearance of 11.36 feet between the bottom of the glide angle and petitioner's chimney.

The airlines that use the airport are lessees of respondent; and the leases give them, among other things, the right 'to land' and 'take off.' No flights were in violation of the regulations of C.A.A.; nor were any flights lower than necessary for a safe landing or take-off. The planes taking off from the northeast runway observed regular flight patterns ranging from 30 feet to 300 feet over petitioner's residence; and on let-down they were within 53 feet to 153 feet.

On take-off the noise of the planes is comparable 'to the noise of a riveting machine or steam hammer.' On the let-down the planes make a noise comparable 'to that of a noisy factory.' The Board of Viewers found that 'The low altitude flights over plaintiff's property caused the plaintiff and occupants of his property to become nervous and distraught, eventually causing their removal therefrom as undesirable and unbearable for their residential use.' Judge Bell, dissenting below, accurately summarized the uncontroverted facts as follows:

'Regular and almost continuous daily flights, often several minutes apart, have been made by a number of airlines directly over and very, very close to plaintiff's residence. During these flights it was often impossible for people in the house to converse or to talk on the telephone. The plaintiff and the members of his household (depending on the flight which in turn sometimes depended on the wind) were frequently unable to sleep even with ear plugs and sleeping pills; they would frequently be awakened by the flight and the noise of the planes; the windows of their home would frequently rattle and at times plaster fell down from the walls and ceilings; their health was affected and impaired, and they sometimes were compelled to sleep elsewhere. Moreover, their house was so close to the runways or path of glide that as the spokesman for the members of the Airlines Pilot Association admitted 'If we had engine failure we would have no course but to plow into your house." 402 Pa. 411, 422, 168 A.2d 123, 128-129.

We start with United States v. Causby, supra, which held that the United States by low flights of its military planes over a chicken farm made the property unusable for that purpose and that therefore there had been a 'taking', in the constitutional sense, of an air easement for which compensation must be made. At the time of the Causby case, Congress had placed the navigable airspace in the public domain, defining it as 'airspace above the minimum safe altitudes of flight prescribed' by the C.A.A. 44 Stat. 574. We held that the path of the glide or flight for landing or taking off was not the downward reach of the 'navigable airspace.' 328 U.S. at 264, 66 S.Ct. 1062. Following the decision in the Causby case, Congress redefined 'navigable airspace' to mean 'airspace above the minimum altitudes of flight prescribed by regulations issued under this chapter, and shall include airspace needed to insure safety in take-off and landing of aircraft.' 72 Stat. 739, 49 U.S.C. § 1301(24), 49 U.S.C.A. § 1301(24). By the present regulations ^[1] the 'minimum safe altitudes' within the meaning of the statute are defined, so far as relevant here, as heights of 500 feet or 1,000 feet, '(e)xcept where necessary for takeoff or landing.' But as we said in the Causby case, the use of land presupposes the use of some of the airspace above it. 328 U.S. at 264, 66 S.Ct. 1062. Otherwise no home could be built, no tree planted, no fence constructed, no chimney erected. An invasion of the 'superadjacent airspace' will often 'affect the use of the surface of the land itself.' 328 U.S. at 265, 66 S.Ct. at 1068.

It is argued that though there was a 'taking,' someone other than respondent was the taker-the airlines or the C.A.A. acting as an authorized representative of the United States. We think, however, that respondent, which was the promoter, owner, and lessor ^[2] of the airport, was in these circumstances the one who took the air easement in the constitutional sense. Respondent decided, subject to the approval of the C.A.A., where the airport would be built, what runways it would need, their direction and length, and what land and navigation easements would be needed. The Federal Government takes nothing; it is the local authority which decides to build an airport vel non, and where it is to be located. We see no difference between its responsibility for the air easements necessary for operation of the airport and its responsibility for the land on which the runways were built. Nor did the Congress when it designed the legislation for a National Airport Plan. For, as we have already noted, Congress provided in 49 U.S.C. § 1109, 49 U.S.C.A. § 1109, for the payment to the owners of airports, whose plans were approved by the Administrator, of a share of 'the allowable project costs' including the 'costs of acquiring land or interests therein or easements through or other interests in air space.' § 1112(a)(2). A county that designed and constructed a bridge would not have a usable facility unless it had at least an easement over the land necessry for the approaches to the bridge. Why should one who designs, constructs, and uses an airport be in a more favorable position so far as the Fourteenth Amendment is concerned? That the instant 'taking' was 'for public use' is not debatable. For respondent agreed with the C.A.A. that it would operate the airport 'for the use and benefit of the public,' that it would operate it 'on fair and reasonable terms and without unjust discrimination,' and that it would not allow any carrier to acquire 'any exclusive right' to its use.

The glide path for the northeast runway is as necessary for the operation of the airport as is a surface right of way for operation of a bridge, or as is the land for the operation of a dam. See United States v. Virginia Electric Co., 365 U.S. 624, 630, 81 S.Ct. 784, 5 L.Ed.2d 838. As stated by the Supreme Court of Washington in Ackerman v. Port of Seattle, 55 Wash.2d 400, 401, 413, 348 P.2d 664, 671, 77 A.L.R.2d 1344, '* * * an adequate approach way is as necessary a part of an airport as is the ground on which the airstrip, itself, is constructed * * *.' Without the 'approach areas,' an airport is indeed not operable. Respondent in designing it had to acquire some private property. Our conclusion is that by constitutional standards it did not acquire enough.

Reversed.

Mr. Justice BLACK, with whom Mr. Justice FRANKFURTER concurs, dissenting.

Notes

1. Regulation 60.17, entitled 'Minimum safe altitudes, provides:
2. In circumstances more opaque than this we have held lessors to their constitutional obligations. See Burton v. Wilmington Parking Auth., 365 U.S. 715, 81 S.Ct. 856, 6 L.Ed.2d 45.