Griggs v. Allegheny County

Opinion by

Me. Chief Justice Jones,

These appeals grow out of a viewers’ proceeding instituted by the plaintiff as owner of land neighboring the Greater Pittsburgh Airport to recover damages from the County of Allegheny, the owner and operator of the airport, for an alleged appropriation of the plaintiff’s land because of a substantial interference with the use and enjoyment of it caused by flights of aircraft at low altitudes, through the air space above the land, when taking off or landing at the airport.

The Greater Pittsburgh Airport was opened for commercial air travel on June 1, 1952. At that time, Thomas N. Griggs, the plaintiff, was the owner of a nearby tract of land containing 19.161 acres improved with a house, two cottages, a four-car garage with living apartment overhead, and certain outbuildings. Part of the Griggs property lay under an “approach area” for the airport’s northeast-southwest runway.

On May 29, 1958, Griggs petitioned the Court of Common Pleas of Allegheny County for the appointment of viewers to assess the damages caused by an alleged taking of his land by the County of Allegheny on June 1,1952. The petitioner averred that, since the opening of the airport for commercial use, aircraft of several air lines, upon taking off and landing at the airport, have frequently and continuously flown through the air space above his land at an elevation of less than 500 feet; that as the result of such flights, “the use and enjoyment of [his] property have been interfered with by reason of the possible danger of the low flights, the noise and vibrations which they cause, their lights pointing at the premises at night time and interference with sleep and rest”; and that the property has been thereby “greatly damaged and depreciated in value.”

The court appointed a board of view which sat for the purpose of its appointment, heard testimony offered by the claimant, and awarded him damages in the sum of §12,690. Griggs filed exceptions to the viewers’ report alleging that the viewers had unlawfully disregarded the expect testimony adduced by him as to the damages to his property which was the only testimony offered before the viewers on that issue. He also appealed the award to the Court of Common Pleas of Allegheny County where the question of damages would be heard de novo. The county, contending that it was not liable for any damage allegedly suffered by the claimant, offered no testimony before the board of viewers on the issue of property value. The county filed exceptions to the viewers’ award to Griggs setting forth therein that, based upon the viewers’ findings of fact, there was no taking of Griggs’ property by the County. The court below dismissed all exceptions of both parties from which action each of the parties took an appeal to this court pursuant to Section 2628 of the Second 'Class County Code of July 28, 1953, P. L. 723, 16 PS §5623.

It is clear that a property owner may petition the court for the appointment of viewers to assess and award .damages against an entity clothed with the powér of eminent domain where such entity effects a “taking” of the petitioner’s property whether or not the appropriator has followed the statutorily provided condemnation procedure. Rosenblatt v. Pennsylvania Turnpike Commission, 398 Pa. 111, 126-127, 157 A. 2d 182; Philadelphia Parkway, 250 Pa. 257, 264-265, 95 Atl. 429; Barron’s Use v. United Railway Co., 93 Pa. Superior Ct. 555, 557-558. A “taking” occurs when the entity clothed with the power of eminent domain substantially deprives an owner of the beneficial use and enjoyment of his property. Miller v. Beaver Falls, 368 Pa. 189, 196-197, 82 A. 2d 34; Creasy v. Stevens, 160 F. Supp. 404, 410-412.

Paragraph 12 of Griggs’ petition for the appointment of viewers admits that the county has not condemned his land by way of the statutorily authorized procedure.¹

What the claimant attempted to show at the hearing before the viewers was that the county had substantially deprived him of the beneficial use and enjoyment of his property. Assuming, for present purposes, that he has shown a substantial deprivation of the beneficial use and enjoyment of his property, we shall proceed at once to a consideration of the basic question raised by tbe county’s appeal as to whether such deprivation was, as a matter of law, caused by the County of Allegheny.

The county, relying on findings of fact by the viewers that no flights of aircraft were shown to be in violation of any regulation of the Civil Aeronautics Administration and that no flights were shown to be lower than necessary for a safe landing or take-off, contends that all of the complained of flights were through air space which the United States Congress placed within the public domain and that, therefore, any taking of Griggs’ property was by the federal government and not by the County of Allegheny.

Section 10 of the Air Commerce Act of May 20, 1926, 44 Stat. 568, as amended, 49 U.S.C.A., §180, provides as follows: “As used in this Act, the term ‘navigable airspace’ means airspace above the minimum safe altitudes of flight prescribed by the Civil Aeronautics Authority, and such navigable airspace shall be subject to a public right of freedom of interstate and foreign air navigation in conformity with the requirements of said sections.”

Section 3 of the Civil Aeronautics Act of June 23, 1938, 52 Stat. 973, 49 U.S.C.A., §403, states that “There is recognized and declared to exist in behalf of any citizen of the United States a public right of freedom of transit in air commerce through the navigable air space of the United States.” (Emphasis supplied)

Section 1 (24) of the Act, 49 U.S.C.A., §401(24), defines “navigable air space” as follows: “ ‘Navigable air space’ means air space above the minimum altitudes of flight prescribed by regulations issued under this Act.”

Pursuant to authority granted by the Civil Aeronautics Act of 1938, the Civil Aeronautics Board issued Civil Air Regulations (14 C.E.R., Parts 1-190). Among these Regulations, Section 60.17, Part 60 (Air Traffic Rules), which establishes minimum safe altitudes of flight at 1000 feet over congested areas and 500 feet over other than congested areas, is prefaced with the following: “Except when necessary for takeoff or landing, no person shall operate an aircraft below the following altitudes:”. The County of Allegheny contends that this exception means that minimum safe altitudes of flight for take-offs and landings have been established at the heights necessary for these purposes.² The county concludes, therefore, that the “navigable air space” which Congress placed within the public domain includes all air space needed by an airplane for take-off or landing.

While the conclusion has the rationale of reality to support it, we are precluded from adopting it by the Supreme Court’s interpretation of similar regulations in United States v. Causby, 328 U. S. 256 (1946). The decision in that case upheld the claimant’s right to damages from the United States for a taking of certain of his property located near an airport because of a substantial interference with his use and enjoyment of it by low flights of U. S. military planes, when taking off from or landing at the airport. In answer to an argument similar to that which the County of Allegheny makes here, the Supreme Court said (at pp. 263-264), “The fact that the path of glide taken by the planes was 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., sec. 180. If that agency prescribed 83 feet [the height at which the planes passed over Causby’s land] 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 1,000 feet at night for air carriers {Civil Air Regulations, Pt. 61, sections 61.7400, 61.7401, Code Fed. Reg. Cum. Supp., Tit. 14, ch. 1), and from 300 feet to 1,000 feet for other aircraft, depending on the type of plane and the character of the terrain. Id. Pt. 60, sections 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.”³

Thus, the Supreme Court has held that the navigable air space which Congress placed in the public domain does not include the path of glide for an airplane’s take-off or landing. As we are, of course, bound by the Supreme Court’s interpretation of the federal statutes involved, we are, perforce, required to reject the County’s contention that navigable air space, as employed by Congress, includes the area necessary for an airplane’s take-off or landing in safety.⁴

But, even though the complained of flights were not through air space which was part of the public domain, the record does not show that the County of Allegheny was the efficient legal cause of any damage resulting from the flights. Griggs testified at the hearing before the viewers that the airplanes of several commercial air lines flew over his land at low altitudes. But, he offered no proof that any of these planes were owned by the County of Allegheny or operated by its agents. Indeed, the viewers found as a fact that “There is no evidence of any control exercised over any aircraft by the County of Allegheny.” That finding, supported as it is by the record, precludes the claimant from recovering against the County in this proceeding.

In unwarrantedly awarding damages to Griggs, the viewers relied upon a finding of fact that the County, in compliance with rules and regulations of the Civil Aeronautics Authority, drafted a “Master Plan,” showing an “approach area” over part of Griggs’ property, which plan was submitted to and approved by the Civil Aeronautics Authority. But the drafting, submission, and approval of the plan did not give the County an easement of avigation over Griggs’ property, nor was any evidence offered to show that such action deprived Griggs of any use and enjoyment of Ms property, substantially or otherwise.

It is true that in United States v. Causby, supra, the United States was held to have effected a taking of certain property neighboring an airport. But there the United States owned and its agents operated the aircraft which caused the deprivation of the owner’s use and enjoyment of the neighboring property. The airport itself was owned by the Greensboro-High Point Municipal Authority, which had leased to the United States Government the right to use the field “concurrently, jointly, and in common” with other users. The Supreme Court in the Gausby opinion did not indicate who actually maintained and operated the airport, evidently considering this point irrelevant.

For Griggs to make use of United States v. Causby, supra, as a precedent, it would seem that he should look for relief to the owners or operators of the aircraft which have made the complained of flights through the air space above his land. Such relief is contemplated by Section 403 of the Aeronautical Code of May 25, 1933, P. L. 1001, 2 PH. §1469, which provides, in part, as follows: “The owner and the pilot, or either of them, of every aircraft which is operated over the lands or waters of this Commonwealth, shall be liable for injuries or damage to persons or property on or over the land or water beneath, caused by the ascent, descent, or flight of aircraft, or the dropping or falling of any object therefrom, in accordance with the rules of law applicable to torts on land in this Commonwealth.”

Commercial air lines are not, of course, clothed with the power of eminent domain and cannot, therefore, be proceeded against by a complaining land owner through a viewers’ proceeding for the assessment of damages for a taking of his property.

In view of our conclusion herein that there has been no taking of the plaintiff’s property by the County of Allegheny in the particulars complained of, and that, consequently, the County is not liable to the plaintiff for any deprivation of the use and enjoyment of his property by airplanes utilizing the Greater Pittsburgh Airport, the question raised by the plaintiff’s appeal has become moot.

The order dismissing the County’s exceptions to the viewers’ report on appeal at No. 155 is reversed with directions that the viewers’ report be vacated and set aside.

Plaintiff’s appeal at No. 158 is dismissed.

1 Section 14 of the Airport Zoning Act of April 17, 1945, P. h. 237, 2 PS §1563, confers upon political subdivisions the power to condemn air avigation easements and other estates in property for the purpose of providing approach protection for aircraft.

2 This is now the position of the Civil Aeronautics Board. Civil Air Regulations, Interpretation 1, 19 F.R. 4602, July 27, 1954.

3 The Supreme Court of Washington recently rejected the identical argument, based upon Section 60.17, Part 60, of the Civil Air Regulations, that the County of Allegheny is now pressing upon us, quoting this paragraph from United States v. Causby, supra. Ackerman v. Port of Seattle, 348 P. 2d 664 (1960).

4 Congress moved to counteract the effect of the decision in United States v. Causby, supra, by enacting the Federal Aviation Act of August 23, 1958, Pub. L. 85-726, 72 Stat. 731, 49 U.S.C.A., §1301 et seq., Section 1401(b) whereof repealed the Civil Aeronautics Act of 1938. Section 104 of the later Act, 49 U. S. C. A., §1304, provides that, “There is recognized and declared to exist in behalf of any citizen of the United States a public right of freedom of transit through the navigable airspace of the United States.” And, Section 101 (24), 49 U.S.C.A., §1301(24), declares that (as used in the Act), “‘Navigable airspace’ means airspace above the minimum altitudes of flight prescribed by regulations issued under this chapter, <md shall include airspace needed to insure safety in tahe-off and landing of aircraft.” (Emphasis supplied.)