Ferguson v. Keene ( 1968 )

Duncan, J.

The defendant’s airport, known as the DillantHopkins Airport, was established in 1942. In 1947, the plaintiff purchased certain real estate, including her residence, located southerly of the north-south runway of the airport. In 1956 the city took a part of the westerly portion of plaintiff’s land in order to lengthen the runway, which in 1959 and 1962 was extended a distance of a thousand feet, so that its southerly end is now located a few hundred feet west of the plaintiff’s house.

The writ alleges that the use of a “warm-up apron” located opposite the plaintiff’s house resulted in 1963 and 1964 in such noise and vibration as to cause windows in the house to break, and to make conversation or sleep in the house impossible and life therein generally “unbearable.” The writ alleges that this use of the airport “constitutes a taking and appropriation” of the plaintiff’s property for which the defendant has refused to compensate her.

It is the settled law of this jurisdiction that a municipality, like any property owner, is bound to use its property in a reasonable manner, and is liable if its use results in a private nuisance. O’Brien v. Derry, 73 N. H. 198, 204; Proulx v. Keene, 102 N. H. 427, 430-431; Webb v. Rye, 108 N. H. 147, 150. The defendant contends however that no taking of the plaintiff’s property can properly be alleged, since she admits that the flight path of aircraft does not cross it, and damage alone without an actual taking requires no compensation. United States v. Willow River Co., 324 U. S. 499, 510. The defendant further argues that its use of the airport is “proper,” and that subjection of airports to liability for claims such as this would unduly impede the progress of air transportation in the state.

The plaintiff asserts that the allegations of its writ include all of the classic elements of nuisance (Restatement, Torts, s. 822; see McKinney v. Riley, 105 N. H. 249, 251) and also that the defendant’s conduct of the airport gives rise to a cause of action for “inverse condemnation,” even though no overflights occur. Thornburg v. Port of Portland, 233 Ore. 178; Martin v. Port of Seattle, 64 Wash. (2d) 309. See Charlotte v. Spratt, 263 N. C. 656; Jacksonville v. Schumann, (Fla. App.) 167 So. 2d 95; State v. Columbus, 3 Ohio St. 2d 154.

Inverse condemnation is a term used to describe “a cause of action against a governmental defendant to recover the value of property which has been taken in fact by the governmental defendant, even though no formal exercise of the power of eminent domain has been attempted by the taking agency." Jacksonville v. Schumann, supra, 98; Charlotte v. Spratt, 263 N. C. 656, supra, 663. See Hillsborough County Aviation Auth. v. Benitez, (Fla. App.) 200 So. 2d 194. While in this jurisdiction the doctrine may not have been adverted to under that name, it is not unknown to our jurisprudence. Eaton v. B.C. & M. R. R., 51 N. H. 504, 510-516. See Van Alstyne, Statutory Modification of Inverse Condemnation, 19 Stanford L. Rev. 727, 738-768; Mandelker, Inverse Condemnation: The Constitutional Limits of Public Responsibility, 1966 Wis. L. Rev. 3, 18-19.

Pertinent cases decided by the United States Supreme Court have not gone beyond the point of holding that there may be recovery in inverse condemnation for damages occasioned by direct flights of aircraft over a claimant’s property. United States v. Causby, 328 U. S. 256; Griggs v. Allegheny County, 369 U. S. 84. As was pointed out in Dunham, Griggs v. Allegheny County in Perspective: Thirty Years of Supreme Court Expropriation Law, 1962 Supreme Court Review 63: “The question whether those [claimants] adjacent to airports, but not in any flight path, should be compensated thus remains an open one so far as the Supreme Court decisions are concerned. But the logic of Causby and its idea of fairness would seem to require compensation even where the planes do not fly directly over the objector’s land.” Id., 88.

However, in Batten v. United States, 306 F. 2d 580 (10th Cir. 1962) the Court of Appeals declined to extend the doctrine to a case where overflights did not occur, relying upon United States v. Willow River Co., 324 U. S. 499, supra, and the proposition that the Federal Constitution requires compensation for a “taking” only. This decision the United States Supreme Court declined to review on certiorari. Batten v. United States, 371 U. S. 955.

The courts of at least two states, proceeding under their own constitutions, have permitted recovery in cases where overflights were not involved. Thornburg v. Port of Portland, 233 Ore. 178, supra; Martin v. Port of Seattle, 64 Wash. 2d 309, supra. See also, Thornburg v. Port of Portland, 244 Ore. 69; 2 Nichols on Eminent Domain (3d ed.) s. 5.781; Annot. 77 A.L.R. 2d 1355. They do not agree however upon the standards to be applied in determining when a taking has occurred, and the cases have been critically received by some commentators. See Spater, Noise and the Law, 63 Mich. L. Rev. 1373, 1404-1406 (1965). Moreover the Constitution of the State of Washington requires compensation for a “damaging” of property as well as a “taking,” in this respect differing from both the Constitution of the United States and that of New Hampshire. See, N. H. Const., Pt. I, Art. 12th.

“Since there is hardly a government act which could not cause someone substantial damage, an arbitrary boundary line must be drawn between compensable and non - compensable injury.” Spater, supra., 1385-1386. Under the Federal Constitution, the line has been drawn at compensation for a taking of property. “The Fifth Amendment . . . requires just compensation where private property is taken for public use . . . [but] does not undertake ... to socialize all losses . . . . ” United States v. Willow River Co., 324 U. S. 499, supra, 502. See Batten v. United States, 306 F. 2d 580, supra. Thus compensation is limited to recovery for “direct and immediate interference with enjoyment and use” by frequent low-level overflights. United States v. Causby, 328 U. S. 256, supra. See, Avery v. United States, 330 F. 2d 640 (Ct. Cl., 1964 ); Hodges Industries v. United States, 355 F. 2d 592 (Ct. Cl., 1966). See also, Note, Airplane Noise, 65 Col. L. Rev. 1428, 1431, 1432.

A genuine distinction may reasonably be thought to exist between the nature of the injury suffered by the owner whose land is subjected to direct overflight, and that suffered by his neighbor whose land is not beneath the flight path. Only the former has lost the use of the airspace above his land, and he is subjected to risks of physical damage and injury not shared by the latter. Spater, supra, 1394-1395.

While our Constitution may not preclude application of the doctrine of inverse condemnation to cases not involving overflights (See Eaton v. B. C. & M. R. R., 51 N. H. 504, supra), the “difficult questions which have arisen from attempts to define the requisite elements of the taking bear witness to the unsuitability of dealing with the problems of airplane noise by enforcing constitutionally-based claims.” Note, 65 Col. L. Rev. 1428, supra, 1447. In holding that where no property is appropriated there may be no recovery for consequential damage due to noise, smoke, and vibrations incident to proximity to a railroad, in Richards v. Washington Terminal Co., 233 U. S. 546, 555, the Court said: “The doctrine has become so well established that it amounts to a rule of property, and should be modified, if at all, only by the law-making power.”

To what extent the nuisance of which the plaintiff complains is essential to the public use of the defendant’s airport is a question which is not determinable at this stage of this litigation. The question whether a defendant in circumstances such as these should be compelled by inverse condemnation to acquire an “easement” and compensate the plaintiff therefor (See Causby v. United States, 75 Fed. Supp. 262 (Ct. Cl. 1948)) presents issues of social policy which might well be the subject of legislative study and appropriate enactment. See Van Alstyne, Statutory Modification of Inverse Condemnation, 19 Stanford L. Rev. 727 supra, 738 (1967).

For purposes of this case, we hold that the plaintiff’s writ and declaration fail to state a cause of action in inverse condemnation for want of any claim of overflights, but that a cause of action in nuisance is sufficiently alleged.

Exception overruled; remanded.

Grimes, J., dissented; the others concurred.