CERTIORARI TO THE SUPREME COURT OF PENNSYLVANIA.
Warren, Black, Frankfurter, Douglas, Clark, Harlan, Brennan, Whittaker, Stewart
MR. JUSTICE DOUGLAS delivered the opinion of the Court.
This case is here on a petition for a writ of certiorari to the Supreme Court of Pennsylvania which we granted (366 U.S. 943) because its decision (402 Pa. 411, 168 A. 2d 123) seemed to be in conflict with United States v. Causby, 328 U.S. 256. The question is whether respondent
has taken an air easement over petitioner's property for which it must pay just compensation as required by the Fourteenth Amendment. Chicago, B. & Q. R. Co. v. Chicago, 166 U.S. 226, 241. The Court of Common Pleas, pursuant to customary Pennsylvania procedure, appointed a Board of Viewers to determine whether there had been a "taking" and, if so, the amount of compensation due. The Board of Viewers met upon the property; it held a hearing, and in its report found that there had been a "taking" by respondent of an air easement over petitioner's property and that the compensation payable (damages suffered) was $12,690. The Court of Common Pleas dismissed the exceptions of each party to the Board's report. On appeal, the Supreme Court of Pennsylvania decided, by a divided vote, that if there were a "taking" in the constitutional sense, the respondent was not liable.
Respondent owns and maintains the Greater Pittsburgh Airport on land which it purchased to provide airport and air-transport facilities. The airport was designed for public use in conformity with the rules and regulations of the Civil Aeronautics Administration within the scope of the National Airport Plan provided for in 49 U. S. C. § 1101 et seq. By this Act the federal Administrator is authorized and directed to prepare and continually revise a "national plan for the development of public airports." § 1102 (a). For this purpose he is authorized to make grants to "sponsors" for airport development. §§ 1103, 1104. Provision is made for apportionment of grants for this purpose among the States. § 1105. The applications for projects must follow the standards prescribed by the Administrator. § 1108.
It is provided in § 1108 (d) that: "No project shall be approved by the Administrator with respect to any airport unless a public agency holds good title, satisfactory to the Administrator, to the landing area of such airport or the site therefor, or gives assurance satisfactory
to the Administrator that such title will be acquired." The United States agrees to share from 50% to 75% of the "allowable project costs," depending, so far as material here, on the class and location of the airport. § 1109.
Allowable costs payable by the Federal Government include "costs of acquiring land or interests therein or easements through or other interests in air space . . . ." § 1112 (a)(2).
Respondent executed three agreements with the Administrator of Civil Aeronautics in which it agreed, among other things, to abide by and adhere to the Rules and Regulations of C. A. A. and to "maintain a master plan of the airport," including "approach areas." It was provided that the "airport approach standards to be followed in this connection shall be those established by the Administrator"; and it was also agreed that respondent "will acquire such easements or other interests in lands and air space as may be necessary to perform the covenants of this paragraph." The "master plan" laid out and submitted by respondent included the required "approach areas"; and that "master plan" was approved. One "approach area" was to the northeast runway. As designed and approved, it passed over petitioner's home which is 3,250 feet from the end of that runway. The elevation at the end of that runway is 1,150.50 feet above sea level; the door sill at petitioner's residence, 1,183.64 feet; the top of petitioner's chimney, 1,219.64 feet. The slope gradient of the approach area is as 40 is to 3,250 feet or 81 feet, which leaves a clearance of 11.36 feet between the bottom of the glide angle and petitioner's chimney.
The airlines that use the airport are lessees of respondent; and the leases give them, among other things, the right "to land" and "take off." No flights were in violation of the ...