Respondents owned a dwelling and a chicken farm near a municipal
airport. The safe path of glide to one of the runways of the
airport passed directly over respondents' property at 83 feet,
which was 67 feet above the house, 63 feet above the barn and 18
feet above the highest tree. It was used 4% of the time in taking
off and 7% of the time in landing. The Government leased the use of
the airport for a term of one month commencing June 1, 1942, with a
provision for renewals until June 30, 1967, or six months after the
end of the national emergency, whichever was earlier. Various
military aircraft of the United States used the airport. They
frequently came so close to respondents' property that they barely
missed the tops of trees, the noise was startling, and the glare
from their landing lights lighted the place up brightly at night.
This destroyed the use of the property as a chicken farm and caused
loss of sleep, nervousness, and fright on the part of respondents.
They sued in the Court of Claims to recover for an alleged taking
of their property and for damages to their poultry business. The
Court of Claims found that the Government had taken an easement
over respondents' property, and that the value of the property
destroyed and the easement taken was $2,000; but it made no finding
as to the precise nature or duration of the easement.
1. A servitude has been imposed upon the land for which
respondents are entitled to compensation under the Fifth Amendment.
Pp. 328 U. S.
(a) The common law doctrine that ownership of land extends to
the periphery of the universe has no place in the modern world. Pp.
328 U. S.
(b) The air above the minimum safe altitude of flight prescribed
by the Civil Aeronautics Authority is a public highway and part of
the public domain, as declared by Congress in the Air Commerce Act
of 1926, as amended by the Civil Aeronautics Act of 1938. Pp.
328 U. S.
-261, 328 U. S.
(c) Flights below that altitude are not within the navigable air
space which Congress placed within the public domain, even though
they are within the path of glide approved by the Civil Aeronautics
Authority. Pp. 328 U.S.
Page 328 U. S. 257
(d) Flights of aircraft over private land which are so low and
frequent as to be a direct and immediate interference with the
enjoyment and use of the land are as much an appropriation of the
use of the land as a more conventional entry upon it. Pp.
328 U. S.
-262, 328 U. S.
2. Since there was a taking of private property for public use,
the claim was "founded upon the Constitution," within the meaning
of § 141(1) of the Judicial Code, and the Court of Claims had
jurisdiction to hear and determine it. P. 328 U. S.
3. Since the court's findings of fact contain no precise
description of the nature or duration of the easement taken, the
judgment is reversed, and the cause is remanded to the Court of
Claims so that it may make the necessary findings. Pp. 328 U. S.
(a) An accurate description of the easement taken is essential,
since that interest vests in the United States. P. 328 U. S.
(b) Findings of fact on every "material issue" are a statutory
requirement, and a deficiency in the findings cannot be rectified
by statements in the opinion. Pp. 328 U. S.
(c) A conjecture in lieu of a conclusion from evidence would not
be a proper foundation for liability of the United States. P.
328 U. S.
104 Ct.Cls. 342, 60 F. Supp. 751, reversed and remanded.
The Court of Claims granted respondents a judgment for the value
of property destroyed and damage to their property resulting from
the taking of an easement over their property by low-flying
military aircraft of the United States, but failed to include in
its findings of fact a specific description of the nature or
duration of the easement. 104 Ct.Cls. 342, 60 F. Supp. 751. This
Court granted certiorari. 327 U.S. 775. Reversed and
p. 328 U. S.
Page 328 U. S. 258
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 because 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
] approved by the
Civil Aeronautics Authority [Footnote 2
] 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. [Footnote 3
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
Page 328 U. S. 259
months after the end of the national emergency, whichever is the
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
northwest-southeast runway in question is used about four percent
of the time in taking off and about seven percent 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.
Page 328 U. S. 260
I. The United States relies on the Air Commerce Act of 1926, 44
Stat. 568, 49 U.S.C. § 171 et seq.,
as amended by the
Civil Aeronautics Act of 1938, 52 Stat. 973, 49 U.S.C. § 401 et
Under those statutes, the United States has "complete and
exclusive national sovereignty in the air space" over this country.
49 U.S.C. § 176(a). They grant any citizen of the United States "a
public right of freedom of transit in air commerce [Footnote 4
] through the navigable air space
of the United States." 49 U.S.C. § 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. § 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.
It is ancient doctrine that at common law ownership of the land
extended to the periphery of the universe -- cujus
Page 328 U. S. 261
est solum ejus est usque and coelum.
] 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
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
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.
, 319 U. S. 275
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. [Footnote
] It would be as complete as if the United States had entered
upon the surface of the land and taken exclusive possession of
We agree that, in those circumstances, there would be a taking.
Though it would be only an easement of flight
Page 328 U. S. 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
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. [Footnote 7
] That was
the philosophy of Portsmouth Harbor Land &
Hotel Co. v.
Page 328 U. S. 263
United States, 260 U. S. 327
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." [Footnote 8
260 U.S. at 260 U. S. 330
And see Delta Air Corp. v. Kersey,
193 Ga. 862, 20 S.E.2d
245. Cf. United States v. 357.25 Acres of
Land, 55 F. Supp.
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. §
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, §§ 61.7400, 61.7401, Code
Fed.Reg.Cum.Supp., Tit. 14, ch. 1) and from 300 to 1000 feet
Page 328 U. S. 264
other aircraft depending on the type of plane and the character
of the terrain. Id.,
Pt. 60, §§ 60.350-60.3505,
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.
] 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
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
Page 328 U. S. 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. [Footnote 10
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.
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
Page 328 U. S. 266
As stated in United States v. Cress, 243 U.
, 243 U. S.
". . . 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. 279
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, § 63-11. The flight of aircraft is
"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
§ 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
§ 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
Page 328 U. S. 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 land.
II. By § 145(1) of the Judicial Code, 28 U.S.C. § 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 States."
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.
, 113 U. S. 67
Hurley v. Kincaid, 285 U. S. 95
285 U. S. 104
Yearsley v. W. A. Ross Construction Co., 309 U. S.
, 309 U. S. 21
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.
-329, 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
299 U. S.
-206; United States v. Seminole Nation,
299 U. S. 417
299 U. S. 422
Findings of fact on every "material issue" are a statutory
Page 328 U. S. 268
requirement. 53 Stat. 752, 28 U.S.C. § 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." 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,
p. 299 U. S.
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.
A 30 to 1 glide angle means one foot of elevation or descent for
every 30 feet of horizontal distance.
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
140 F.2d 482.
The house is approximately 16 feet high, the barn 20 feet, and
the tallest tree 65 feet.
"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. § 401(3).
1 Coke, Institutes, 19th Ed. 1832, ch. 1, § 1(4a); 2 Blackstone,
Commentaries, Lewis Ed.1902, p. 18; 3 Kent, Commentaries, Gould Ed.
1896, p. 621.
The destruction of all uses of the property by flooding has been
held to constitute a taking. Pumpelly v. Green Bay
13 Wall. 166; United States v. Lynah,
188 U. S. 445
United States v. Welch, 217 U. S. 333
It was stated in United States v. General Motors Corp.,
323 U. S. 373
323 U. S.
"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
Cf. Warren Township School Dist. v. Detroit,
460, 14 N.W.2d 134; Smith v. New England Aircraft Co.,
Mass. 511, 170 N.E. 385; Burnham v. Beverly Airways, Inc.,
311 Mass. 628, 42 N.E.2d 575.
On remand, the allegations in the petition were found not to be
supported by the facts. 64 Ct.Cls. 572.
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.
Ball, The Vertical Extent of Ownership in Land, 76
U.Pa.L.Rev. 631, 658-671.
It was held in Butler v. Frontier Telephone Co.,
N.Y. 486, 79 N.E. 716, 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, pp. 491-492:
". . . 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 disturbed."
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 Univ.L.Rev. 414.
MR. JUSTICE BLACK, dissenting.
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
Page 328 U. S. 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
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
Page 328 U. S. 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, [Footnote 2/1
] or were the result of negligence.
] 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,
Page 328 U. S. 271
327. 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 --
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. [Footnote 2/3
] 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
Page 328 U. S. 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
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. § 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
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
Page 328 U. S. 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.
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 cannot 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." [Footnote 2/4
] In construing the statute
narrowly the Court
Page 328 U. S. 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.
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,
Page 328 U. S. 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 Constitutional sense.
Neiswonger v. Goodyear Tire & Rubber
Co., 35 F.2d
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 highway."
104 Ct.Cls. 342, 358.
The House, in its report on the Air Commerce Act of 1926,
"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 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."
at p. 14.