The opinion of the court was delivered by: WILLSON
On December 5, 1955 the government filed a complaint and declaration of taking for the acquisition of a clearance easement on 64.88 acres (hereinafter to be called 64 acres) of land in Allegheny County, Pennsylvania, for use in connection with the Greater Pittsburgh Airport. The sum of $ 2,450 was deposited in the Registry of the Court as estimated compensation. On the same date this court by Judge Marsh entered an order of judgment on the declaration of taking. His order, however, provided: '* * * This cause is held open for such other further orders, judgments and decrees as may be necessary in the premises,' which is the usual and customary order in like cases entered by the judges in this district.
On December 30, 1955, one Charles F. Chubb, designating himself as defendant, filed an answer to the complaint. He is the owner, he says, not only of the 64 acres of land, but says that this acreage is part of a larger tract of about 271 acres from which the land taken by the government is but a portion. The answer objected to the taking on four grounds: (1) that the complaint and declaration are so vague and uncertain that defendant is unable to ascertain what damages will be caused by the taking; (2) that it is obvious from the pleadings that the land has been acquired for the pathway for the flight of aircraft, although such right of user is not set out in either the complaint or declaration; (3) that although the pleadings indicate that merely an easement for the purpose of clearing a pathway for aircraft is described, yet it is obvious from the altitudes of flight indicated that the taking is a fee-simple condemnation instead of the estate set out in the complaint; and (4) that the amount of damages paid into the court is obviously inadequate.
The government then filed a motion to strike the answer. The matter was argued. On March 5, 1956 this court entered an order setting aside the declaration of taking, removing the possession of the land from the government and directing that the declaration of taking and the complaint be amended to describe accurately, clearly and concisely the character and extent of the estate or interest in defendant's lands taken for public use.
On May 3, 1956 the government filed an amended declaration of taking and amendment No. 1 to the complaint. The defendant then filed an answer to the amended complaint, praying for the dismissal of the complaint and the setting aside of the declaration of taking, both for the reason that the estate or interest taken is not described accurately, clearly and concisely, and, also, for the reason that the United States cannot condemn runway clearance rights without also condemning the right to use the space thus cleared for the flight of aircraft.
The matter has again been argued and briefs submitted. It is noticed that the Rules of Civil Procedure, 28 U.S.C. now apply to the condemnation of property by the United States. Rule 71A requires that the complaint shall contain a short and plain statement of the authority of the taking, the use for which the property is to be taken, a description of the property sufficient for its identification, the interests to be acquired, etc. The requirements as to what the declaration of taking shall state are substantially the same. 40 U.S.C.A. § 258a. In amending the complaint and declaration of taking the government simply added to each an exhibit, 'Schedule 'B' (Supplement),' prepared by the Corps of Engineers, United States Army, and entitled 'Greater Pittsburgh Airport West Approach Zone to Runway No. 10, Profile and Plan, (Topographic Map).' However, paragraph III of the amended complaint is novel in that it recites a determination by the Under Secretary of the Air Force. The paragraph in full reads:
'That is has now been determined by James H. Douglas, Under Secretary of the Air Force of the United States to be in the best interest of the United States that 'Schedule 'B' Supplement', a topographic map showing thereon at certain intervals the elevations of the glide angle plane and transitional planes with relation to the elevations of the ground level and further depicting thereon the profile along the extended center line of the runway with obstructions that extend into the glide angle plane and transitional planes, be incorporated in the Complaint.'
Specifically the amended complaint in paragraph IV recites that other than above-mentioned the complaint as originally filed shall remain in full force and effect.
The point to the amendment of the complaint and declaration of taking is that the government adheres to the proposition that it is only taking a clearance easement in certain airspace over defendant's land. The reason why it condemns the airspace is not stated except that the government says, paragraph 1(b) of the declaration of taking:
'(b) The public uses for which said land is taken are as follows: Said land is necessary adequately to provide for the runway clearances at the Greater Pittsburgh Airport for the use of the Department of the Air Force and for other military uses incident thereto. Said land has been selected under the direction of the Secretary of the Air Force for acquisition by the United States for use in connection with the Greater Pittsburgh Airport, Pennsylvania, and for such other uses as may be authorized by Congress or by Executive Order.'
In the declaration of taking, the estate taken is said to consist of the continuing perpetual right to cut to ground level and to remove trees, bushes, shrubs or any other perennial growth or undergrowth infringing upon or extending to a height within 10 feet of the glide angle plane and/or transitional planes described in an attached schedule and to cut to ground level, remove and prohibit any such growth which could in the future infringe upon or extend into or above said planes, the right to remove, raze or destroy those portions of buildings, other structures or land infringing upon or extending into or above said planes and the right to prohibit the future construction of buildings or other structures infringing upon or extending into or above said planes, and the right of ingress to and egress from and passage on and over said tract to effect and maintain said clearances. The glide angle plane therein referred to is described as a trapezoidal plane beginning at the level of said runway at a point on the prolongation of the center line of the main east-west runway 1,000 feet west of the end of the runway and sloping upward at a rate of 1 foot vertically for each 50 feet horizontally for a width of 1,500 feet at the place of beginning, a length of about 10,000 feet and a width of 4,000 feet at the westerly end. The transitional planes therein referred to extend upward and outward, from the boundaries, one on each side, of the glide angle plane, at a rate of 1 foot vertically for each 7 feet horizontally, measured at right angles to the center line of the main east-west runway, and are triangular in shape. The base of each is 750 feet long and is a prolongation of the easterly boundary of the glide angle plane and the sides are about 5,300 feet long.
The amendments filed by the plaintiff added to the complaint and the declaration of taking a topographic map, marked 'Schedule 'B' (Supplement),' showing the contours of the surface of the defendant's lands, a profile of the surface at the prolonged center line of the runway, large clumps of trees, both in plan and profile, and superimposed thereon, the glide angle plane and the transitional planes. As appears from this map, the topography of the defendant's land is such that, at the point closest to the end of the runway, the glide angle plane would be only about 16 feet above the level of the ground. To the north of this point the ground rises until, at a point along the boundary about 600 feet north of the center line of the runway prolonged, the glide angle plane is at ground level. To the west of this point the ground rises until at its highest point it intrudes more than 5 feet above the glide angle plane. It further appears from the map, Schedule 'B' (Supplement), that trees now standing on the defendant's land intrude above the glide angle plane for a horizontal distance of about 1,200 feet westwardly from the boundary common to the airport, some by as much as 70 feet above the clearance line.
It is the view of this court that the complaint and declaration of taking are not in compliance with the requirements of Rule 71A and 40 U.S.C.A. § 258a. The first requirement in both the statute and the rule is a statement of the authority for the taking. The next requirement is a statement of the public use for which the lands are taken. Equally important also is a statement of the estate or interest in said lands taken for public use. The complaint will be dismissed and the declaration of taking set aside because they are deficient in not showing the authority for the taking as well as not sufficiently describing the public use or the estate or interest in the land taken. This court is not entirely in accord with all of the reasons advanced by defendant for dismissal. It is believed, however, that the court's reasons, requiring the entry of the order of dismissal, are substantially in accord with the objections raised by defendant.
In the first place, my view is in accord with that of Judge Hartshorne of this district expressed in United States v. 29.40 Acres of Land, D.C., 131 F.Supp. 84, at page 86:
'But 'the power of eminent domain is not dependent upon any specific grant (in the United States Constitution); it is an attribute of sovereignty, limited and conditioned by the just compensation clause of the Fifth Amendment.' Hanson Lumber Co. v. United States, 1923, 261 U.S. 581, 587, 43 S. Ct. 442, 444, 67 L. Ed. 809 (parentheses the Court's). The policy to be followed in exercising this implicit governmental power has been delineated many times by the policy-making branch of the Government, the Congress.'
However, as is stated in United States v. Rauers, D.C., 70 F. 748:
'A fundamental principle of law controlling all matters of this character is that every statute which undertakes to appropriate in any manner the property of private persons for public use, must be strictly construed. One of the great aims of government is to secure to each citizen the enjoyment of his estate. On the other hand, in cases of public necessity, the right of the individual must yield to the right and demand of the public; but, since that demand is in derogation of private right, it must be closely scrutinized, and the expression of legislative purpose in ...