Issue: Are plane flights that fly over the airspace above a land owner’s property a proper
cause for a government taking if it can be proven that such flights were the direct and
immediate cause of damages that caused P to not have full enjoyment of his property?
Holding: Reversed. The Court of Claims decision that the low-level and frequent flights
over P’s land were a government taking, but the cause is remanded to discover whether or
not the taking was complete or temporary.
– The doctrine of “ ” has no place in the modern world. The air is a public highway
and Congress has implemented law that indicates that all airspace over the United States
is public property. However, that principal does not apply to this case. The US conceded
on an oral argument that if the flights over P’s property rendered it uninhabitable, there
would be a taking under the 5th Amendment.
– If by reason of the frequency and altitude of the fights, P could not use their land for any
purpose, their loss would be complete and therefore subject to a market value taking by
the government. The fact that the planes never touched the surface is irrelevant. This is
not like an adjacent railroad that creates a legal nuisance. Here, P’s airspace is being
appropriated by an outside influence in such a way as to render the land useless to its
– The gov’t taking the land and reducing its value as opposed to making it completely
useless is not controlling. So long as there is a servitude placed on the owner. If a land
owner is to have full enjoyment of his 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 fences could not be run.
– Also, according to Congressional regulations, the flights were not within the navigable
airspace which Congress placed within public domain. Therefore, the path of glide here
is not within the minimum safe altitude of flight within the meaning of the statute
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