WILLIAM J. BATTEN AND KATIE M. BATTEN, his wife,
UNITED STATES OF AMERICA’
V.
Air Force jet noise – Constitutional taking requires a physical
invasion – Adjoining landowners not deprived of any portion
of their property – Whether a taking of property requiring
compensation.
Major Walter D. Reed, USAF*
Most democratic governments have made provision for compensation to
private persons when their property is taken for public purposes.2 However,
not all damages or injuries to property, even though of a permanent nature,
will constitute a taking within the meaning of the law., The public interest
and demand for social progress may require a disproportionate sacrifice by a
few individuals for the common good. 4 This was observed with the develop-
ment of railroads, highways, and airports for conventional aircraft where the
peace and quiet of adjacent residences was most certainly disturbed but not
considered compensable. 5 Each advancement seemed to introduce a new and
more penetrating sound with attendant discomforts. Although the contribu-
tion to social needs and public good may have been correspondingly greater,
nonetheless, the sacrifices, discomforts, and consequential damages 6 suffered
by the community adjacent to such activities were also greater.
‘United States Court of Appeals, Tenth Circuit, July 10, 1962, 8 Avi 17, 101; Consolidated in this
action are nine other actions representing claims of landowners in the same subdivision as Mr.
Batten. This action is brought under the Tucker Act, 28 USC 1346a(2).
*Graduate student at the Institute of Air and Space Law, McGill University. The views and
comments contained herein are solely those of the author, Major Walter D. Reed, USAF, and in
no way represent official views or policy of the United States Air Force.
25th Amendment to the U.S. Constitution: “No person shall . .. be deprived of life, liberty, or
property without due process of law; nor shall private property be taken for public use without
just compensation.” cf. (Canada) Expropriation Act, R.S.C. 1952, c. 706, s. 1; The Acquisition of Land
(Authorisatin Procedure) Act, 9-10 Geo. VI, 1946, c. 49 (U.K.).
3Sharp v. United States (1903) 191 U.S. 341.
4G. Nathan Calkins, Jr., “The Land Owner and the Aircraft-1958”, 25J. Air L. & Com. 373,
at page 397: “Undoubtedly, the jet noise in the neighborhood diminished the value of the land as
homesires, but every diminution of land value is not necessarily compensable as a taking. Zoning
ordinances have been sustained which had the effect of curtailing land values by more than five
times. American Wood Products Co. v. City of Minneapolis, 35 F. 2d 657 (C.A.-8, 1929).”
5Richards v. Washington Terminal Co. (1913) 233 U.S. 546.
“Consequential damages is the term applied to damages to, or destruction of, property not ac-
tually taken, and they arise when property is not actually taken or entered but an injury occurs as
the natural result of an act lawfully done by another…” “They are, in general, recoverable only
where statutory or constitutional provisions require the payment of compensation for property
damaged or injured.” 29 C.J.S. 919.
No. 3]
CASE AND COMMENT
William J. Batten and the other nine property owners directly involved in
this case purchased their homes during the period 1949 to 1955 in a subdivision
adjoining Forbes Air Force Base which is located at Topeka, Kansas. During
World War II the installation was used as a temporary airbase for the training
of personnel in the operation of propeller-driven aircraft. The base was
deactivited prior to 1948 and in that year a tract adjoining the base was platted
and the plaintiffs purchased homes in this residential subdivision. The base
was reactivated for use during the Korean War and a project was begun to
enlarge the base to accommodate jet aircraft. The project required the acquisi-
tion of additional land adjacent to the subdivision in which the plaintiffs
lived. The lengthened runway and a warmup ramp for jet aircraft were placed
in operation during the fall of 1955 and the spring of 1956. The jet operations
from the ramp and runway produced noise and vibrations which disrupted
sleep and normal conversation. Further the use and enjoyment of the telephone,
television, and radio facilities were seriously impaired during certain periods.
The noise emanated from points 2000 feet or more from the property of the
nearest plaintiff. At times, sound pressure levels measured from 90 to 117
decibels on the plaintiffs’ property. Ear plugs are recommended for Air Force
personnel when the sound pressure level reaches 85 decibels and are required
at or above 95 decibels. During the summer months, black smoke emitted
from jet engines during take-off would drift over plaintiffs’ property depositing
an oily film. The property owned by the various plaintiffs was diminished in
value from 40.8%/o to 55.3%. These facts in the case were not in dispute.
The novelty of this case is that the plaintiffs did not assert that their
property had been taken because of flights over their property but rather that
the invasion of their property by noise, vibration, smoke, and soot emitted
from jet aircraft in warmup, maintenance, taxiing, takeoff, and flying opera-
tions so prevented their full use and enjoyment as to constitute a taking of
their property for which just compensation had to be paid under the 5th
Amendment to the Constitution.7
The growth and development of air transport has required extensive re-
examination and peculiar application of traditional or classic concepts of the
laws protecting private property interests.” This period has seen a declaration
by the courts that the principle of Cuius est solum, eius est usque ad coelum was
never a part of common law as applied in the United States. 9 The classic
common law rules of trespass when applied to airspace and private proprietary
interests therein resulted in an additional element being required. 10 The air-
7Supra, note 2.
8Anderson, “Some aspects of Airspace Trespass” (1960) 27 J. Air L. & Com. 351.
9Hinman v. Pacific Air Transport Corp. 84 F. 2d 755, 1 Avi. 640, [1936] U.S.AV.R. 1 (C.A.-9 1936);
cert. denied, 300 U.S. 655; Swdland v. Curtiss Airports Corp. 55 F. 2d 201, 1 Avi. 316, [1932) U.S.Av.R. 1
(C.A.-6 1932).
‘0Smith v. New England Aircraft Co. 170 N.E. 385, 1 Avi. 197 (Mass. Sup. Jud. Ct., 1930). The
Court acknowledged that a trespass existed but would grant no relief in the absence of proof of
damage.
McGILL LAW JOURNAL
[Vol. 9
space over private property above certain minimum heights was declared by
legislation to be in the public domain.”
Noise, dust, vibration, smoke, powerful lights, and flights through airspace
at low altitude over nearby private property are matters which are necessarily
incidental to normal air operations in and around airports. However, the
inconveniences, discomfort, and prejudice to the use and enjoyment of property
and the resulting loss in property values gave rise to claims for damages by
reason of trespass and nuisance. One class of cases involved the assertion
that flights at low altitude over private property constituted a taking of
property requiring compensation under the 5th Amendment to the Constitution.
The United States Supreme Court in US v. Causby12 laid down the rule that
flight over private property below 500 feet 13 and within the immediate reaches
of the surface which results in damage to the surface shall constitute a taking
of property requiring compensation. The Causby case, supra, has been cited and
followed in numerous cases and it seems well settled in United States law.
The present case placed squarely before a United States appellate court for
the first time a demand for compensation where substantial damages resulting
from noise, vibration, and smoke were proven but no flight operations took
place in or through the airspace over the plaintiffs’ property. In a divided opinion
the majority of the Court decided against the plaintiff-appellants and no relief
was granted. The basis of the decision was the distinction between a taking of
property and consequential damages resulting from a lawful activity conducted
in a reasonable and authorized manner. The Causby case was cited by the Court
for the principle that a physical invasion of plaintiffs’ property was required and
the extent or amount of damage is not a consideration. The Court stated:14
Congress has placed the navigable airspace in the public domain and has authorized ad-
ministrative regulation of minimum altitudes of flight… Causby contains nothing indicating
that recovery could be had for noise, vibration, or smoke coming from thesame vertical distances.
Each of these disturbing conditions is brought to the plaintiffs’ properties through the
air and they do not effect an actual displacement of a landowner from space within which he
is entitled to exercise dominion consistent with recognized concepts of real property rights.
Such a displacement is a fact when occasioned by repeated airplane flights.
From the existing cases, the elements for a taking of property for public
purposes through air operations requiring compensation seem reasonably well
defined.1 They may be stated as follows:
a. Flight must be through the airspace over private property.
“1Federal Aviation Act 1958; Pub. Law 85-726, 72 Stat. 731; cf. Section 40(1) of The Civil Aviation
Act, 12, 13, 14 Geo. VI, 1949, c. 67 (U.K.).
under the Civil Aeronautics Act, 1938, as implemented by the Civil Aeronautics Authority.
12[1945] 328 U.S. 256.
“3Airspace above 500 feet at the particular location in question was in the navigable airspace
4Supra, note 1, p. 17, 104.
“U.S. v. Causby, supra, note 12; City of Newark, et al v. Eastern Airlines, et al 159 F. Supp. 750,
[1958] U.S. & C. Av. R. 30 (D.C.-N.J. 1958); Highland Park, Inc. v. United States 161 F. Supp. 597,
5 Avi. 17, 935, [1958] U.S. & C. Av. R. 483 (Ct. of Claims 1958); Freeman v. U.S. 167 F. Supp. 541,
6 Avi. 17, 230, [1959] U.S. & C. Av. R. 158 (D.C.-Okla. 1958); Fitch v. U.S. [1957] U.S. & C. Av. R.
94 (D.C.-Kan. 1957).
No. 3]
CASE AND COMMENT
b. The flights must be frequent and within the immediate reaches of the
surface. 16
c. The flights must result in damages to the use and enjoyment of the surface.
Application of these elements to factual situations did not solve all questions
presented. At least one further hurdle remained. This problem appeared in a
case where each of the elements enumerated above was present but flights at
all times were within the navigable airspace as provided by law. In Matson
v. US,’ 7 the US Court of Claims stated:
We do not think, however, that the change in the definition of navigable airspace affects
plaintiffs’ causes of action. The Government’s easement over plaintiffs’ property may be
perpetual. Although today navigable airspace with its public rights of transit …
includes
the glide, its use by the United States or other aeroplane operators at heights below the
minimum altitudes of flight except where necessary for take-off or landing, may require com-
pensation…
While the usefulness of air transportation admonishes everyone that outmoded concepts
of property rights must not limit its development fairness requires that landowners be com-
pensated reasonably for operations that immediately and directly limit the exploitation of
their properties.
The Court in the Matson case held that there could be a taking of subjacent
property requiring compensation under the 5th Amendment through the use
of airspace which Congress had declared to be in the public domain. There
was no question raised of the constitutional authority of Congress to grant
a public right of transit in airspace over private property. The Court did not
discuss the rule that to constitute a taking there must be a physical invasion
or penetration of private property. However, the case stands for the proposition
that where aircraft frequently fly over private property within the immediate
reaches of the surface and cause substantial damage there will be a taking,
notwithstanding the fact that such flights are within the navigable airspace.
While adhering to the established principles in the Causby case, the Court in
the Matson case seemed ready to balance the rights of private owners against
the public demand for air transport through a test of fairness to both, i.e. in
return for exercising the right of flight within and through the lower reaches
of airspace, payment must be made for damages to the subjacent surface owner.
The dissenting judge in the Batten case seemed to free himself from earlier
precedents to apply a test of fairness and justice in his interpretation of the
constitutional provision. Murrah, C. J. stated as follows:18
As I reason, the constitutional test in each case is first, whether the asserted interest is one
which the law will protect; if so, whether the interference is sufficiently direct, sufficiently
peculiar, and of sufficient magnitude to cause us to conclude that fairness and justice, as between
the State and the citizen, requires the burden imposed to be borne by the public and not by
the individual alone.
16For a discussion of the effect of the Highland Park case, supra, on this element see Calkins, op. cit.,
supra, note 4, at page 393.
17[1959] U.S. & C. Av. R. 1, at p. 4, 171 F. Supp. 283, 5 Avi 17,310 (Ct. of Claims 1959) at 17, p. 311.
1sSupra, note 1, at p. 17, 106.
McGILL LAW JOURNAL
[Vol. 9
To support his opinion, Murrah, C. J. referred to a rule which has been recog-
nized and recited in most opinions involving a taking of property, including
the majority view in this case. Stated simply it is if through a government
activity or act a person is wholly deprived of the use of his property, there is
a taking.”9 The rule was recited in US v. Welch 0 as:
To constitute a taking of private property such as inhibited by the 5th Amendment to the
Constitution, unless just compensation is made, it must be shown that the owner is wholly
deprived of the same.
In US v. General Motors Corp.,2t the United States Supreme Court stated:
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 ta -ing.
In Richards v. Washington Terminal Co.2 2 the Court, in reciting that there was
no exclusive and permanent appropriation of any portion of plaintiff’s land,
stated:
And since he is not wholly excluded from the use and enjoyment of his property, there has
been no “taking” of the land in the ordinary sense.
Again the Court in this case stated:
Sound waves, shock waves, and smoke pervade the property neighboring that on which they
have their source but the disturbance caused thereby is only a neighborhood inconvenience
unless they are intentionally directed to some particular property … or unless they force the
abdication of the use of space within the landowner’s dominion.
Although the Court acknowledged the rule, it was merely observed that none
of the plaintiffs had in fact been driven from their homes.
At this point it would be helpful to combine the elements required to con-
stitute a taking of private property, the rules applied by the Court in US v.
Matson,2 14 and the principle that one must be deprived of the whole of the
property taken. It seems clear that if a person is wholly deprived of any portion
of his property interest, such deprivation constitutes a taking within the
meaning of the 5th Amendment. Once a taking has occurred, the owner is
not only entitled to payment for the parcel or interest taken but also the
resulting damages to that portion of the tract not taken.2 5 By treating surface
property and the superjacent airspace within the immediate reaches of the
land as a single tract or parcel, it is apparent that the subjacent landowner
has been wholly deprived of a portion of his property interest (i.e. airspace
within the immediate reaches of the surface) because of frequent aerial flights
19See 29 C.J.S. 921, note 48; also U.S. v. Causby, supra, note 12.
2(1910) 217 U.S. 333, at p. 334.
21(1945) 323 U.S. 373, at p. 378.
2Supra, note 5, 233 U.S. 546, at p. 552.
23Supra, note 1, p. 17-104.
24Supra, note 17.
21U.S. v. Welch, supra, note 19; Sharp v. U.S., supra, note 3.
No. 3]
CASE AND COMMENT
overhead. It therefore follows that under the law the owner is entitled to
compensation for damages to the entire tract which includes both the airspace
and the surface beneath.
The same reasoning could apply in the Matson case, even though the take-off
and landing operations complained of were included in the navigable airspace.
The Federal Aviation Act of 195826 did not deprive private landowners of their
property interest in the superjacent airspace within the lower reaches although
it did authorize under certain conditions the use of that area by others. Further,
the use of the airspace as authorized by the Act may at the time of use wholly
deprive a landowner of a portion of his property interest. Accordingly, it
could be said that the court in the Matson case determined that the subjacent
owner had been wholly deprived of his interest in the airspace within the
immediate reaches of his surface property and was therefore entitled to payment
not only for the interest taken (i.e. easement through airspace) but also for
resulting damages to the remaining portion of the tract which was the potential
surface development.
Applying these precedents to this case, for the plaintiffs to recover on the
basis of a taking they must show that they have been wholly deprived of a
portion of their property interest. The plaintiffs’ use of the airspace within
the immediate reaches of the surface was not limited or obstructed by any
physical penetration. Likewise nearby aircraft operations placed no restriction
on their movements about the surface of their property. They could literally
possess every inch of the land and the lower reaches of the airspace above.
The Court in applying established and traditional concepts of deprivation and
invasion could reach no other conclusion but to deny recovery.
However, perhaps the law is sufficiently flexible now to recognize new
forces and new rights based on possible uses or activities which one is entitled
in this present day to carry on within his property. Energy carried through
the air can deprive one of the use of his radio. An expensive television set
with all its potential for indefinite home entertainment can be reduced to
relative worthless home decoration through unseen or unheard disturbances.
Sound pressure waves are capable of inflicting physical damages and if suf-
ficiently intense, ear plugs are recommended for health and safety. Radio-
active particles are invisible, silent, and insidious in their deadly process of
contamination.
In times past a man’s home often was referred to as his castle. Laws ren-
dering it unlawful for the unauthorized invasion of that home by person or
physical object adequately protected his right to full enjoyment. But now
modern living has introduced a new era. Discovery and development has
made the air one of the principal vehicles transporting forces and energy and
power used by our society. To name just a few: radar, radio, television, jet
26Supra, note 11; the Federal Aviation Act of 1958 defines navigable airspace as including airspace
needed to insure safety in take-off and landing of aircraft.
McGILL LAW JOURNAL
[Vol. 9
power, light rays, and heat rays all of which may in some degree be transmitted
through the air.
Although the Court in this case did not find it appropriate or necessary to
discuss the effect of such forces on the time-established principles of deprivation
and invasion, perhaps the time is not far away for the law to recognize that
penetration of a person’s property by such forces to his damage may be an
invasion or a deprivation of a right as surely as if the invasion had been by a
physical object. The sonic boom clearly illustrates the point. The force created
by pressure waves moving through the air at extreme velocities can, upon
striking a window or other stationary object, cause damage as effectively as
if a rock had been thrown.
The United States Supreme Court has said,27 “It is the character of the in-
vasion, not the amount of damage resulting from it, so long as the damage is
In looking
substantial, that determines the question whether it is a taking.”
at the character of the invasion, it may now be possible to talk in terms of an
invasion by a force. Although invasion by physical objects occupies space
and deprives one of the use of the space so occupied, invasion by a force may
effectively fill the area or space with so many undesirable or harmful charac-
teristics that the owner is wholly deprived of its use. To apply such a principle
would necessitate determination of the degree of deprivation required of this
force before it could be said as a matter of law that a person has been wholly
deprived of an interest or a right in property so as to constitute a taking.
Murrah, C. J., in his dissenting opinion, stated:2
Is it
… I must inquire at what point the interference rises to the dignity of a “‘taking.”
when the window glass rattles, or when it falls out; when the smoke suffocates the inhabitant,,
or merely ;rnakes them cough; when the voise makes family conversation dilicult, or when it
stifles it entirely? In other words, does the “taking” occur when the property interest is totally
destroyed, or when it is substantially diminished?
The theory of this dissent has now been adopted by the Supreme Court of
Oregon in the case of Thornburg v. The Port of Portland.”:’ In considering the
elements necessary for a taking of property the Court was faced with the
question of whether noise from aircraft passing over adjacent land could consti-
tute a taking. While observing that the Batten case is not necessarily the final
view of the federal courts, the Oregon Court stated:
Therefore, unless there is some reason of public policy which bars compensation in cases
of governmental nuisance as a matter of law, there is a question, in each case, as a matter of
fact, whether or not the governmental activity complained of has resulted in so substantial
an interference with use and enjoyment of one’s land as to amount to a taking of private
property for public use.3
The real question was not one of perpendicular extension of surface boundaries into the air-
In effect, the inquiry
space, but a question of reasonableness based upon nuisance theories.
U.S. v. Cress 243 U.S. 316, 328.
28Supra, note 1, at p. 17, 106. See also portion of opinion of Murrah, C. J., quoted supra.
298 Avi 17, 281, (Sup. Ct. of Ore. 1962).
301bid., 285.
No. 3]
CASE AND COMMENT
should have been whether the government had undertaken a course of conduct on its own
land, which in simple fairness to its neighbors, required it to obtain more land so that the
substantial burdens of the activity would fall upon public land, rather than upon the involun-
tary contributors who happen to lie in the path of progress.3′
Clearly, the ThornburgU2 case departs from the generally accepted requirements
for a taking as applied in the Causby case.a3a Essentially the distinction is one
of placing greater emphasis on the extent of interference with the use and
enjoyment of land and less emphasis on the source and manner of such inter-
ference.
It would seem to this writer that it would be no large step for the law to
recognize that there can be an invasion of one’s property by unseen or unheard
forces travelling freely through the air. Once such a recognition takes place,
the door is clearly open to examine the magnitude of such an invasion to
determine if, under minimum standards of our modern society, a person has
effectively been deprived of a right to the use and enjoyment of his property.
The Court in this case was not required under existing precedent to take
notice of an invasion of property by sound waves. However, it is respectfully
submitted that the facts and the law would have permitted the Court to
entertain a theory of effective and substantial deprivation of the use and
enjoyment of property through a regular and frequent invasion by intense
sound levels. Although the Court did not choose to accept such a theory, the
principles of reasonableness and simple justice will eventually require recogni-
tion of the invasion of property not only by movement of a mass but also by
forces from other types of energy such as sound pressure waves, radio frequencies,
and radioactivity.
31lbid., 286, 7.
32 biid.
33Supra, note 12.
