Appeals, Nos. 72, 73, 74, 75, and 76, March T., 1958, from order of Court of Common Pleas of Allegheny County, Oct. T., 1953, Nos. 1289, 1640, 1288, 1707, and 1706, in case of K. G. Gardner et al. v. County of Allegheny et al. Order reversed.
Maurice Louik, First Assistant County Solicitor, with him Philip Baskin, Assistant County Solicitor, and Nathaniel D. Beck, County Solicitor, for County of Allegheny, appellant.
William A. Blair, with him David B. Fawcett, for plaintiffs, appellees.
J. Garfield Houston, with him J. Henry O'Neill, Stephen E. Nash, and Blaxter, O'Neill & Houston, for appellees.
Before Jones, C.j., Bell, Chidsey, Musmanno, Arnold, Jones and Cohen, JJ.
OPINION BY MR. JUSTICE BELL
The County of Allegheny appealed from an order of the Court of Common Pleas of Allegheny County which dismissed the preliminary objections filed by the County to certain new matter in the Answer of the defendant Airlines.*fn1 A complaint in equity had been filed by the respective owners of five properties which are situate adjacent to the Greater Pittsburgh Airport in moon and Findlay Townships, Allegheny County.
In the court below, in this Court, and in all prior proceedings before this Court, the five actions were consolidated for argument and trial.
The complaint in equity of the respective property owners sought an injunction against the county and against all of the airline defendants to restrain allegedly dangerous and illegal flights of aircraft over their respective properties. Plaintiffs averred that these flights, which number 8 every ten to fifteen minutes, and which endangered their lives and their homes, were unlawful trespasses. The owners asked as an alternative relief, that the court (a) find that the acts of the defendants constituted a "taking" and (b) award to each plaintiff the fair market value of his property. The defendants filed preliminary objections to each of these complaints; these objections were overruled by the Court below. Upon appeal, this Court decided in Gardner v. Allegheny County, 382 Pa. 88, 114 A.2d 491, that on the pleadings, as they then existed, the Court below (1) was correct in overruling the preliminary objections of the defendants to that part of the complaint which sought an injunction, (2) but was in error in overruling the County's objection to plaintiffs' claim for a "taking" of their respective properties, and (3) directed the lower Court to enter a modified Decree consistent with this Court's Opinion.
The Court below thereupon entered an Order on September 30, 1955, which was subsequently amended by its Order dated March 15, 1956, the effect of which was to strike from the plaintiffs' complaint all claims for damages for a "taking", leaving only a claim for injunctive relief and for damages for trespass. The lower Court wisely permitted the defendants to file Answers including new matter.
The airlines in paragraph 19a of their Answers averred the ...