Introduction
The right to own private property is not a disputable issue. The contentious issue is whether that particular right extends to owning the space above the private property (Ben-Yosef, 2005). The privilege to exclusively own the space that extends both upwards and below the land surface has been upheld by the principle of cuius est solum, eius usque ad caelum et ad inferos (that is, ‘he who owns the land retains a prima facie right to own everything that extends up to the heavens and the ground below). Though this principle has been applied in the common law practice over the years, its application has led to a wider legal interpretation due to the recent rise in technology (Pacelle, Curry, and Marshall, 2011). What this entail is that the courts have been forced to distinguish between the ‘lower’ and ‘upper’ stratum of the superjacent airspace (Pollard, 2004). This issue was one of the main rationales behind the holding in Griggs v. Allegheny County. The other issue was whether the petitioner should be compensated as provided under the 14th Amendment. This paper will critically analyze the findings in Griggs v. Allegheny County and discuss the extent to which the superjacent airspace can be said to have been invaded and the burden of the liability arising from such action.
Griggs v. Allegheny County, 369 U.S. 84, 1962
In this case, the petitioner acquired a private residential property that was located next to the Greater Pittsburgh Airport which was under the ownership of Allegheny County (Larsen, Gillick, and Sweeny, 2012). The respondent instituted an ‘approach area’ to the runway located at the northeast with the glide angle bottom establishing a clearance of 11.36 feet from the petitioner’s chimney. A constant flight pattern during ‘take off’ was monitored at 30-300 feet above Griggs’ house and within 53-153 feet when landing. The noises emitted by the planes during both take-off and landing were unbearable to the petitioner and his family. It was loud enough as to hinder a normal telephone conversation in the petitioner’s house. It also led to sleepless nights for the petitioner’s family despite them taking sleeping pills and using earplugs. The loud noise caused major vibrations that shook their windows and would often cause the plaster on the ceilings and wall to fall.
The court unanimously agreed that the interference was so enormous as to amount to the taking of an air easement. However, the contentious issue, in this case, was deciding who was liable for the taking of the air easement. In their submissions, Allegheny County argued that the burden of compensation should be placed on the private airline companies that operated the flights. They further contested that the US government should be held liable as it was the responsibility of the federal government to come up with a system of controlling national aviation. The courts disagreed with both arguments presented by Allegheny County. In delivering the judgment, Justice Douglas stated that the respondent had the responsibility to take the easement because they were the promoters and owners of the Greater Pittsburgh Airport. However, Justice Black held a dissenting view that was supported by Justice Frankfurter. In his opinion, he argued that even though he agreed that the privacy of the petitioner had been interfered with, it was not right to place the entire liability on Allegheny County. According to him, the taking of easement would have been imposed on the government and not the county.
This case presents two major issues that need to be discussed at length. The first issue regards the extent to which an avigation easement can be said to have been ‘taken’ and secondly, who is held liable for the easement?
Superjacent Space Privileges
It was argued in Griggs v. Allegheny County that the interests vested in the private landowner to own the superjacent space are constrained and governed by the Government’s statutes and regulations (Ellison, 2002). However, the courts have chosen not to give the statute’s acknowledgment as being of ‘proprietary significant’ and have instead treated them as mere regulations put in place for purposes of air commerce (Hoppe, 2011). The court’s decision in United States v. Causby, 328 U.S. 256 (1946) centered on the issue of interference by repeated over-flights. It was argued that the interference amounted to taking of an avigation easement. It is also imperative to infer that the privileges of a private landowner as regards space appropriation have been given some consideration. The consideration given includes the right by the private landowners to object from future interference of space by other parties. In Smith v. City of Atlanta, 92 Ga, 119, 17 S.E. 981 (1893), the majority held that any encroachment to such space was actionable even though the encroachment was said to be at an altitude or depth that was not in use at the moment (Jennings, 2010). Further, the privilege possessed by the landowner in regards to superjacent space is not restricted by the action of taking off and landing by planes. This fundamental issue was tested in Guith v. Consumers Power Co., 36 F. Supp. 21 (E.D. Mich. 1940) in which the court held that the landowner possessed exclusive rights and privileges to erect structures on his land that would have been said to cause hindrances in the operations of the nearby airport unless such usage was for the sole purposes of interfering with the operations (Banner, 2008). However, the courts have not been clear on the issue of constant over-flights and whether they can be said to create a clear easement of way. The holding in both Griggs and Causby cases indicated that the over-flights are sufficient enough to amount to interference. How then does the court determine the boundary between the upper and lower stratum of superjacent space?
It is not without doubt that the court unanimously agreed that Griggs’ rights to the enjoyment of his land had been invaded. In delivering this unanimous judgment, the court relied heavily on the findings in the Causby case. In the Causby case, the Supreme Court was confronted with the contentious issue of ascertaining the question as to who was the valid owner of the superjacent airspace above the private land (Paul, 2008). Causby was the owner of a chicken farm that was located near a military airport. The location of the farmhouse was strategically placed in such a way that the military planes had a takeoff and landing pattern that allowed them to fly 63 feet above the farmhouse. The noise and vibration were so loud that it led to the death of more than 150 chickens resulting in the plaintiffs giving up their poultry business altogether. However, the court, in this case, rejected the common law insertion that the landowner had exclusive rights to own airspace up to the sky. In their reasoning, they argued that the landowner owns at least the space up to the ‘lower stratum’. The court nevertheless failed to draw a clear line between the boundary domain that distinguishes the ‘lower’ and ‘upper’ stratum of superjacent space (Larsen and Lyall, 2009).
Following both decisions in Causby and Griggs case, it is evident that the courts are deliberately ignoring the need to establish the extent to which the superjacent airspace falls within the domain of private landowner (Dolan and Thompson, 2012). However, it can be inferred from both decisions that it is highly unlikely for the ‘lower’ stratum to get past the altitude of 200m or more above the roof of the landowner’s premises. The law governing the boundary between the upper and lower stratum can be argued in two ways (Verma, 2004). First, the courts have adopted the terminology of ‘innocent passage’ whereby it has been argued that the planes flying in the ‘upper’ stratum and with access to happenings in private land cannot amount to trespass. A good example is the holding in People v. Cook, 221 Cal. Rptr. 499 (1985), 505, in which the Supreme Court decided that the private property owners would have to accustom to planes flying above them in the ‘upper’ stratum while they were going about their usual activities of nude sunbathing and family relaxation. The court agreed that occasional downward look by a passenger or the pilot flying in the plane could not amount to trespass. However, the issue of ‘innocent passage’ has been left to different interpretations by courts in their various jurisdictions. For example, would the terminology apply when the passenger or pilot takes photographs of the residents? Would that not amount to a breach of privacy? Secondly, the courts have argued on the premise that the airspace on the ‘upper’ stratum is a ‘no man’s land’. This means that even the state itself does not own that space. It is for this reason that the courts have chosen to concentrate on the ‘lower’ stratum of superjacent space.
Potential Liability Arising From The Cause Of Action
What legal remedies are awarded to landowners and who should be held liable for such remedies? This was the contentious issue in the Griggs case as the court was torn between holding the county or the government liable. It is not a disputable fact that the aggrieved landowner is entitled to compensation if indeed ‘taking’ has taken place as required by the Fourteenth Amendment (Edwards and Wells, 2009). Justice Black, in his dissent, stated that the government was hugely involved in the construction of the airport by funding most of its expenses. According to him, it was not fair to impose entire liability to the respondent leaving the government out of blame. The courts have considered inverse condemnation whereby the aggrieved private landowner sues the government for compensation for actions that would amount to ‘taking’ (Ackerman and Dynkowski, 2008). In Ferguson v. City of Keene, 238 A.2d 1 (N.H. 1968), the plaintiff’s property had been damaged as a result of loud sound and major vibrations that emanated from the neighboring airport. The vibrations came from the warm-up apron that was adjacent to the plaintiff’s house. The defendant, in this case, contended that the action of ‘taking’ could not be alleged as the runway path was not on private property. Further, the damages that arose from the action were not as a result of ‘taking’ hence amounting to no compensation. The court held that though a cause of action arose, the issue of inverse condemnation could only be applicable in instances of direct over-flight (Alexander, 2006).
The courts in the Ferguson case relied on Causby and Griggs case to conclude that it had not veered off from the main point of awarding inverse condemnation to claimants who were not under direct over-flight. This has elicited a lot of heated debate about the fairness in awarding damages to those claimants whose damages are as a result of noise and vibrations from adjacent aircraft. However, most people have relied on the logic of fairness in the Causby case which upheld the principle of inverse condemnation (Waite, 2012). Nonetheless, the setting panel of jurists in the Causby case failed to address the issue of the particular party that needs to be held liable in such actions for taking. This is because the court limited itself to the facts of the case in which the airport had exclusive control of the airport. This issue as regards the identity of the party was resolved in both Griggs and Ferguson cases in that the party to be held liable is the one that has taken over the control of the airport.
Conclusion
The majority in Griggs v. Allegheny County attempted to solve the extent to which the private owner should own the superjacent space. However, it failed to completely define how it came about to ascertain the extent of trespass from the direct over-flight. More so, in compensating the aggrieved party, it would have been imperative for the court to consider inverse condemnation because as noted in the dissenting view, the government had a role to play in the creation of the airport.
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