line elevation at the end of the runway and sloping upward from the narrower end at a rate of 1 foot vertically for each 50 feet horizontally. From the plan it thus appears that the east end of the glide angle plane commences at the end of the runway at ground level. Where the glide angle plane first crosses defendant's 64-acre tract, it is approximately 16 feet above ground level, that is, at a point on the center line of the runway as prolonged westerly. The glide angle plane, of course, slopes upward at the rate of 1 foot vertically for each 50 feet horizontally. Defendant's ground slopes upward to about halfway across the 64-acre tract and then slopes downward so that at the western boundary the glide angle plane is approximately 100 feet from ground level. The glide angle plane extends over the runway approach zone. The runway approach zone is over the whole of defendant's 64-acre parcel of land.
The government in its brief says the glide angle plane does not necessarily represent the line of flight of aircraft, but is the minimum elevation of the approach zone, including allowance of a safety factor. Therefore, the government says planes may never actually go across defendant's land or may never fly at such low altitudes as to result in direct and immediate interference with the use and enjoyment of his property. The government contends that the taking of the right to clear defendant's land up to a certain height is not the imposition of a flight easement and that is the only right taken in this proceeding by the determination of the only person authorized to make that decision, i.e., the Secretary of the Air Force.
It is rather strange language to designate what is taken here as a clearance easement only. It appears that the easement imposed has many of the attributes of appropriation of a fee. For instance, the plan shows some 16 large trees which are to be removed. The area in which the ground lies is uneven and the contour plan shows the land to be hilly. The northeasterly portion of the 64 acres is the area where in some places the ground extends into the glide angle plane so that the earth must be removed, and the ground generally leveled off.
It is thus apparent that the easement sought has as many attributes of the appropriation of the fee as it does an appropriation of airspace alone. Certainly Rule 71A has not been complied with, as there is no short and plain statement of the interest to be acquired. The area sought is in a sense an appropriation of the fee. This is so because trees and earth are taken and the immediate airspace above the land. There is very little space left on and above the east portion of the tract. Opposite the runway the glide angle plane is 16 feet from the ground. North of this point, however, it is at ground level at various points and at some points below ground level. The government asserts that the airspace sought is not for the flight of aircraft, as the glide angle is an angle of obstruction relative to the runway, and the area sought is simply a cushion or buffer zone, which insures safety to aircraft by allowing the pilot a reasonable margin of error. A property owner should have the same rights even though taken for a military purpose that a property owner has if taken for a civil purpose, that is, in condemnation of easements through or other interests in airspace, in fixing condemnation awards, consideration should be given to the reasonable probable future use of the underlying land. 49 U.S.C.A. 452(c).
The conclusion is that not only is no authority shown for the taking, but there is no plain statement of the public use for which the lands sought are taken, nor is there a clear and adequate statement of the estate in the lands taken for public use.
An order of dismissal will be entered.