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June 25, 1956


Appeals, Nos. 3 and 4, May T., 1956, from judgments of Court of Common Pleas of Dauphin County, March T., 1951, No. 424, in case of Morris Yoffee, administrator of estate of Morris B. Levitz, deceased v. Pennsylvania Power & Light Company. Judgment reversed.


Arthur Berman, with him Samuel Handler and Compton, Handler & Berman, for appellant.

Macey E. Klein, with him Arthur H. Hull, Solomon Hurwitz, James K. Thomas, Hull, Leiby & Metzger and Hurwitz, Klein, Meyers & Benjamin, for appellee.

Before Stern, C.j., Jones, Bell, Chidsey, Musmanno and Arnold, JJ.

Author: Musmanno

[ 385 Pa. Page 522]


The Susquehanna River is about 400 miles long and generally flows south and southeastwardly through Pennsylvania on its way to Chesapeake Bay. It is a picturesque stream which winds and curves with varying widths, sometimes attaining a maximum expansion of two miles. About one mile south of Millersburg, Pennsylvania, it is a half-mile wide and passes between two high hills collectively known as Berry Mountain. The broad passage between these hills is named the Berry Mountain Gap.

The Pennsylvania Power & Light Company, which manufactures, sells, and distributes electric current in this area, has utilized the elevations on either side of the river for the construction of steel towers, from which suspends an electrical transmission line carrying current from the eastern side of the river (Dauphin County) to the western side (Perry County). The towers, which are 40 feet high, are constructed of I-Beams and are planted, respectively, atop the eastern hill which is 680 feet high, and on the western hill which is 657 feet high. The line, formed of three copper cables, measures 5,515 feet in length. Since the air distance between the two towers is only 5,366 feet, an inevitable sag brings the line to a low point of 125 feet above the river level.

On the afternoon of May 11, 1950, a clear day with visibility unlimited, Morris B. Levitz, licensed aviator, aloft in a single engine Piper Cub plane, was piloting his craft southwardly through the Berry Mountain Gap when it struck the Pennsylvania Power and Light transmission line at a point 185 feet above the river.*fn*

[ 385 Pa. Page 523]

The plane somersaulted into the water and Levitz sustained grave injuries from which he died three days later. The administrator of his estate brought an action in trespass against the Pennsylvania Power & Light Company, but at the ensuing trial the Court of Common Pleas of Dauphin County entered a non-suit, asserting that the plaintiff failed to prove the defendant negligent and that the evidence showed the decedent to have been guilty of contributory negligence. The action of the learned Court below cannot be sustained. Its reasoning adhered close to the ground of terrestial rights but somewhat slighted the now established prerogatives of those who utilize the earth's upper strata in aerial travel.

Up until the advent of the airplane, it was said that the rights of every property owner extended, coterminously with the boundaries of his land, as high as the heavens. Legislation and court decisions during the last 50 years, however, while still guarantying to every property owner the fullest heavenly enjoyment of his property, have taken away a part of the sky which he never could use anyway. Section 3 of the Civil Aeronautics Act of 1938, 49 U.S.C.A. § 403, declares: "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." Navigable air space is defined as "air space above the minimum altitudes of flight prescribed

[ 385 Pa. Page 524]

    by regulations issued under" the Act. (49 U.S.C.A. § 401-24) The Supreme Court of the United States declared in the case of U.S. v. Causby, 328 U.S. 256, 261, that "The air is a public highway, as Congress has declared."

The right of flight in navigable unused air space is now as constitutionally established as the right to walk through the public square. No one, beyond the extent of the enjoyment of his property as laid down by law, can infringe upon that right of flight. Restatement, Torts, § 194, says: "An entry above the surface of the earth, in the air space in the possession of another, by a person who is traveling in an aircraft, is privileged if the flight is conducted (a) for the purpose of travel through the air space of for any other legitimate purpose, (b) in a reasonable manner, (c) at such a height as not to interfere unreasonably with the possessor's enjoyment of the surface of the earth and the air space above it, and (d) in conformity with such regulations of the State and federal aeronautical authorities as are in force in the particular State."

Comment a under § 194 declares, inter alia: "The aeronaut in his exercise of his privilege of lawful flight has a right as against the possessor of the land that the latter shall not unreasonably interfere with the exercise of his privilege."

Although the record does not specify the purpose of Morris Levitz's flight, it is not contended by anyone that he was engaged in anything but a legitimate mission. The lower Court came to the conclusion that Levitz in his flight violated certain Federal and State regulations. Section 58 of The Pennsylvania Civil Aeronautics Regulations (promulgated by authority of The Aeronautical Code of Pennsylvania, Act of May 25, 1933, P.L. 1001, as amended) provides that: "Exclusive

[ 385 Pa. Page 525]

    of taking-off or landing on a licensed airport or other property designated for that purpose by the owner, aircraft shall not be flown: Section 58. Over the congested parts of populated areas or over open-air assemblies of persons except at a height sufficient to permit a reasonably safe emergency landing which in no case shall be less than 1,000 feet; elsewhere at a height less than 500 feet."*fn** If the Pennsylvania regulations control this case, the plaintiff cannot recover because admittedly at the time of the collision Levitz was flying at an altitude less than 500 feet. However, the General Flight Rules of the Civil Air Regulations promulgated by the Federal Civil Aeronautics Board permit flying below the 500-foot level under certain conditions. Regulation 60.17 of the Federal rules declares:

"Minimum safe altitudes. Except when necessary for take-off or landing no person shall operate an aircraft below the following altitudes: (a) Anywhere. An altitude which will permit, in the event of the failure of a power unit, an emergency landing without undue hazard to persons or property on the surface; (b) Over congested areas. Over the congested areas of cities, towns or settlements, or over an open-air assembly of persons, an altitude of 1,000 feet above the highest obstacle within a horizontal radius of 2,000 feet from the aircraft ... (c) Over other than congested areas. An altitude of 500 feet above the surface, except over open water or sparsely populated areas. In such event, the aircraft shall not be operated closer than 500 feet to any person, vessel, vehicle, or structure ..."

The Court of Common Pleas of Dauphin County held that as between the State and Federal criteria of permissible minimum altitude, the Pennsylvania regulations prevailed at the time of the collision. If there

[ 385 Pa. Page 526]

    were conflict between the Pennsylvania regulations and the Federal regulations the latter would predominate. However, aside from the superiority of the Federal regulations, the facts in the case specifically adapt themselves to the Federal regulations since the pilot at the time of the fatal mishap was flying over "open water," the situation described under Subsection (c) of Regulation 60.17.

The learned Court below was of the view that at the time the pilot fell he was not flying over open water. In this respect the Court said that within a stretch of 12 1/2 miles three transmission lines cross the river, that two islands and numerous islets occupy the stream, that the borough of Liverpool is "a short distance" (3 1/2 miles) north of the transmission line, and that there is one dwelling within 400 feet (the record says 400 yards) of the line on the Perry County side. But these geographical observations do not decide whether the river itself at the point of the accident was open water. The term "open water", as used in the regulation, must be interpreted in the light of its land equivalent, "sparsely populated area." The witness Clarence W. Hunter testified on this subject as follows: "Q. On May 11, 1950, that was the date of the accident which you have previously described, will you tell us whether there are any homes in the area underneath the electric transmission line on the Dauphin County side? A. No, sir. Q. Will you tell us please whether there were any homes on May 11, 1950, under the electric transmission line on the Perry County side? A. No, sir." He testified also that 300 or 400 yards north on the Perry County side there were two homes and a hotel. Three human habitations some 1200 feet from the locus in quo on only one side of the river could not make the area anything other than "sparsely populated."

[ 385 Pa. Page 527]

The river itself at the location of the transmission line at the time of the accident was as empty as the Dead Sea. Not a boat, swimmer, or fisherman disturbed the tranquil stream. Such an expanse of dead water would certainly fall under the designation of "open water." The fact that a half-mile to the north a single small steamboat was heading toward shore could not change the locus in quo to something other than "open water."

In holding that the accident did not occur on open water, the Dauphin County Court seemed to believe that open water is a synonym for open sea, but if that were true, then the phrase "sparsely populated area" in the Federal regulation would lose all significance, because, in comparison to the vast emptiness of the ocean, only a Sahara desert could qualify under the designation of "sparsely populated area."

Apparently carried away by its misconception of the meaning of "open water," as used in the Regulation, the Trial Court cited the case of United States v. Rodgers, 150 U.S. 249 in asserted support of its position. But the Rodgers case can have no possible relevancy to the question as to whether there can be open water on the Susquehanna. The Rodgers case decided the question as to whether the term "high seas" in a Federal statute applies "to the open, unenclosed waters of the Great Lakes." The opinion in the Rodgers case did not accept the term "open", (as did the Dauphin County Court), as being equivalent to "unenclosed." Many times in the opinion it used the two words, "open, unenclosed", as describing the high seas. Justice FIELD, who wrote the Rodgers opinion, in referring to an opinion written by Justice STORY in the case of United States v. Grush, 5 Mason 290, said: "It was the open, unenclosed waters of the ocean, or the open, unenclosed

[ 385 Pa. Page 528]

    waters of the sea, which constituted the 'high seas' in his judgment. There was no distinction made by him between the ocean and the sea, and there was no occasion for any such distinction."

The Dauphin County Court, by saying: "This opinion [the Rodgers opinion] refers to 'rivers, havens, creeks, basins, and bays' (page 263) generally as being different from 'open, unenclosed waters,'" endeavored to convey the idea that the Susquehanna River could never have open water because 'rivers, havens, creeks, etc." are different from "open, unenclosed waters." But the quotation to which the lower Court referred, did not at all hold what the Dauphin County Court contended for it. This is what the Rosgers case said in that quotation at page 263: "It does not seem reasonable to suppose that Congress intended to confine its legislation to the high seas of the ocean, and to its navigable ...

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