Appeals, Nos. 155 and 158, March T., 1960, from orders of Court of Common Pleas of Allegheny County, July T., 1958, No. 2384, in case of Thomas N. Griggs v. County of Allegheny. Order in appeal No. 155 reversed with directions; appeal No. 158 dismissed; reargument refused February 15, 1961.
William A. Blair, with him David B. Fawcett, for plaintiff.
Maurice Louik, County Solicitor, with him Francis A. Barry, First Assistant County Solicitor, John W. Mamula, Second Assistant County Solicitor, and Philip Baskin, Special Counsel, for County, defendant.
Before Jones, C.j., Bell, Musmanno, Jones, Cohen, Bok and Eagen, JJ.
OPINION BY MR. CHIEF JUSTICE JONES.
These appeals grow out of a viewers' proceeding instituted by the plaintiff as owner of land neighboring the Greater Pittsburgh Airport to recover damages from the County of Allegheny, the owner and operator of the airport, for an alleged appropriation of the plaintiff's land because of a substantial interference with the use and enjoyment of it caused by flights of aircraft at low altitudes, through the air space above the land, when taking off or landing at the airport.
The Greater Pittsburgh Airport was opened for commercial air travel on June 1, 1952. At that time, Thomas N. Griggs, the plaintiff, was the owner of a nearby tract of land containing 19.161 acres improved with a house, two cottages, a four-car garage with living
apartment overhead, and certain outbuildings. Part of the Griggs property lay under an "approach area" for the airport's northeast-southwest runway.
On May 29, 1958, Griggs petitioned the Court of Common Pleas of Allegheny County for the appointment of viewers to assess the damages caused by an alleged taking of his land by the County of Allegheny on June 1, 1952. The petitioner averred that, since the opening of the airport for commercial use, aircraft of several air lines, upon taking off and landing at the airport, have frequently and continuously flown through the air space above his land at an elevation of less than 500 feet; that as the result of such flights, "the use and enjoyment of [his] property have been interfered with by reason of the possible danger of the low flights, the noise and vibrations which they cause, their lights pointing at the premises at night time and interference with sleep and rest"; and that the property has been thereby "greatly damaged and depreciated in value."
The court appointed a board of view which sat for the purpose of its appointment, heard testimony offered by the claimant, and awarded him damages in the sum of $12,690. Griggs filed exceptions to the viewers' report alleging that the viewers had unlawfully disregarded the expect testimony adduced by him as to the damages to his property which was the only testimony offered before the viewers on that issue. He also appealed the award to the Court of Common Pleas of Allegheny County where the question of damages would be heard de novo. The county, contending that it was not liable for any damage allegedly suffered by the claimant, offered no testimony before the board of viewers on the issue of property value. The county filed exceptions to the viewers' award to Griggs setting forth therein that, based upon the viewers' findings of fact, there was no taking of Griggs' property by the County.
The court below dismissed all exceptions of both parties from which action each of the parties took an appeal to this court pursuant to Section 2623 of the Second Class County Code of July 28, 1953, P.L. 723, 16 PS § 5623.
It is clear that a property owner may petition the court for the appointment of viewers to assess and award damages against an entity clothed with the power of eminent domain where such entity effects a "taking" of the petitioner's property whether or not the appropriator has followed the statutorily provided condemnation procedure. Rosenblatt v. Pennsylvania Turnpike Commission, 398 Pa. 111, 126-127, 157 A.2d 182; Philadelphia Parkway, 250 Pa. 257, 264-265, 95 Atl. 429; Barron's Use v. United Railway Co., 93 Pa. Superior Ct. 555, 557-558. A "taking" occurs when the entity clothed with the power of eminent domain substantially deprives an owner of the beneficial use and enjoyment of his property. Miller v. Beaver Falls, 368 Pa. 189, 196-197, 82 A.2d 34; Creasy v. Stevens, 160 F. Supp. 404, 410-412.
Paragraph 12 of Griggs' petition for the appointment of viewers admits that the county has not condemned his land by way of the statutorily authorized procedure.*fn1
What the claimant attempted to show at the hearing before the viewers was that the county had substantially deprived him of the beneficial use and enjoyment of his property. Assuming, for present purposes, that he has shown a substantial deprivation of the beneficial use and enjoyment of his property, we shall proceed at once to a consideration of the basic question
raised by the county's appeal as to whether such deprivation was, as a matter of law, caused by the County of Allegheny.
The county, relying on findings of fact by the viewers that no flights of aircraft were shown to be in violation of any regulation of the Civil Aeronautics Administration and that no flights were shown to be lower than necessary for a safe landing or take-off, contends that all of the complained of flights were through air space which the United States Congress placed within the public domain and that, therefore, any taking of Griggs' property was by the federal government and not by the County of Allegheny.
Section 10 of the Air Commerce Act of May 20, 1926, 44 Stat. 568, as amended, 49 U.S.C.A., § 180, provides as follows: "As used in this Act, the term 'navigable airspace' means airspace above the minimum safe altitudes of flight prescribed by the Civil Aeronautics Authority, and such navigable airspace shall be subject to a public right of freedom of interstate and foreign air navigation in conformity with the requirements of said sections."
Section 3 of the Civil Aeronautics Act of June 23, 1938, 52 Stat. 973, 49 U.S.C.A., § 403, states that "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." (Emphasis supplied)
Section 1 (24) of the Act, 49 U.S.C.A., § 401(24), defines "navigable air space" as follows: "'Navigable air space' means air space above the minimum altitudes of flight prescribed by regulations issued under this Act."
Pursuant to authority granted by the Civil Aeronautics Act of 1938, the Civil Aeronautics Board issued Civil Air Regulations (14 C.F.R., Parts 1-190).
Among these Regulations, Section 60.17, Part 60 (Air Traffic Rules), which establishes minimum safe altitudes of flight at 1000 feet over congested areas and 500 feet over other than congested areas, is prefaced with the following: "Except when necessary for takeoff or landing, no person shall operate an aircraft below the following altitudes:". The County of Allegheny contends that this exception means that minimum safe altitudes of flight for take-offs and landings have been established at the heights necessary for these purposes.*fn2 The county concludes, therefore, that the "navigable air space" which Congress placed within the public domain includes all air space needed by an airplane for take-off or landing.
While the conclusion has the rationale of reality to support it, we are precluded from adopting it by the Supreme Court's interpretation of similar regulations in United States v. Causby, 328 U.S. 256 (1946). The decision in that case upheld the claimant's right to damages from the United States for a taking of certain of his property located near an airport because of a substantial interference with his use and enjoyment of it by low flights of U.S. military planes, when taking off from or landing at the airport. In answer to an argument similar to that which the County of Allegheny makes here, the Supreme Court said (at pp. 263-264), "The fact that the path of glide taken by the planes was approved by the Civil Aeronautics Authority does not change the result. The navigable airspace which Congress has placed in the public domain ...