United States v. Causby

UNITED STATES v. CAUSBY ET UX.

Certiorari to the Court of Claims.

No. 630. Argued May 1, 1946 — Decided May 27, 1946.

104 Ct. Cls. 342, 60 F. Supp. 751, reversed and remanded. Certiorari granted, 327 U. S. 775.

Opinion of the Court by Mr. Justice Douglas. Mr. Justice Black, dissenting. Mr. Justice Jackson took no part in the consideration or decision of the case.

Walter J. Cummings, Jr., argued the cause for the United States; with him on the brief were Solicitor General McGrath, J. Edward Williams, Roger P. Marquis, and Alvin O. West. William E. Comer argued the cause and filed a brief for respondents.

The report occupies pages 256 through 275 of volume 328 of the United States Reports. The opinion of the Court is printed first and ends at page 268; the dissenting opinion of Mr. Justice Black begins at page 268 and the report closes at page 275.

[328 U.S. 256] “Respondents owned a dwelling and a chicken farm near a municipal airport. The safe path of glide to one of the runways of the airport passed directly over respondents' property at 83 feet, which was 67 feet above the house, 63 feet above the barn and 18 feet above the highest tree. It was used 4% of the time in taking off and 7% of the time in landing. The Government leased the use of the airport for a term of one month commencing June 1, 1942, with a provision for renewals until June 30, 1967, or six months after the end of the national emergency, whichever was earlier. Various military aircraft of the United States used the airport. They frequently came so close to respondents' property that they barely missed the tops of trees, the noise was startling, and the glare from their landing lights lighted the place up brightly at night. This destroyed the use of the property as a chicken farm and caused loss of sleep, nervousness and fright on the part of respondents. They sued in the Court of Claims to recover for an alleged taking of their property and for damages to their poultry business. The Court of Claims found that the Government had taken an easement over respondents' property and that the value of the property destroyed and the easement taken was $2,000; but it made no finding as to the precise nature or duration of the easement. Held:”

[328 U.S. 256] “1. A servitude has been imposed upon the land for which respondents are entitled to compensation under the Fifth Amendment. Pp. 260-267.”

[328 U.S. 256] “(a) The common law doctrine that ownership of land extends to the periphery of the universe has no place in the modern world. Pp. 260, 261.”

[328 U.S. 256] “(b) The air above the minimum safe altitude of flight prescribed by the Civil Aeronautics Authority is a public highway and part of the public domain, as declared by Congress in the Air Commerce Act of 1926, as amended by the Civil Aeronautics Act of 1938. Pp. 260, 261, 266.”

[328 U.S. 256] “(c) Flights below that altitude are not within the navigable air space which Congress placed within the public domain, even though they are within the path of glide approved by the Civil Aeronautics Authority. Pp. 263, 264.”

[328 U.S. 257] “(d) Flights of aircraft over private land which are so low and frequent as to be a direct and immediate interference with the enjoyment and use of the land are as much an appropriation of the use of the land as a more conventional entry upon it. Pp. 261, 262, 264-267.”

[328 U.S. 257] “2. Since there was a taking of private property for public use, the claim was ‘founded upon the Constitution,’ within the meaning of § 141 (1) of the Judicial Code, and the Court of Claims had jurisdiction to hear and determine it. P. 267.”

[328 U.S. 257] “3. Since the court's findings of fact contain no precise description of the nature or duration of the easement taken, the judgment is reversed and the cause is remanded to the Court of Claims, so that it may make the necessary findings. Pp. 267, 268.”

[328 U.S. 257] “(a) An accurate description of the easement taken is essential, since that interest vests in the United States. P. 267.”

[328 U.S. 257] “(b) Findings of fact on every ‘material issue’ are a statutory requirement, and a deficiency in the findings can not be rectified by statements in the opinion. Pp. 267, 268.”

[328 U.S. 257] “(c) A conjecture in lieu of a conclusion from evidence would not be a proper foundation for liability of the United States. P. 268.”

[328 U.S. 260] “It is ancient doctrine that at common law ownership of the land extended to the periphery of the universe — cujus est solum ejus est usque ad coelum. But that doctrine has no place in the modern world. The air is a public highway, as Congress has declared. Were that not true, every transcontinental flight would subject the operator to countless trespass suits. Common sense revolts at the idea. To recognize such private claims to the airspace would clog these highways, seriously interfere with their control and development in the public interest, and transfer into private ownership that to which only the public has a just claim.”

[328 U.S. 261] “But that general principle does not control the present case. For the United States conceded on oral argument that if the flights over respondents' property rendered it uninhabitable, there would be a taking compensable under the Fifth Amendment. It is the owner's loss, not the taker's gain, which is the measure of the value of the property taken. United States v. Miller, 317 U. S. 369. Market value fairly determined is the normal measure of the recovery. . . . If, by reason of the frequency and altitude of the flights, respondents could not use this land for any purpose, their loss would be complete. It would be as complete as if the United States had entered upon the surface of the land and taken exclusive possession of it.”

[328 U.S. 261] “We agree that in those circumstances there would be a taking. Though it would be only an easement of flight [328 U.S. 262] which was taken, that easement, if permanent and not merely temporary, normally would be the equivalent of a fee interest. It would be a definite exercise of complete dominion and control over the surface of the land. The fact that the planes never touched the surface would be as irrelevant as the absence in this day of the feudal livery of seisin on the transfer of real estate. The owner's right to possess and exploit the land — that is to say, his beneficial ownership of it — would be destroyed.”

[328 U.S. 262] “It would not be a case of incidental damages arising from a legalized nuisance such as was involved in Richards v. Washington Terminal Co., 233 U. S. 546. . . . In the supposed case, the line of flight is over the land. And the land is appropriated as directly and completely as if it were used for the runways themselves.”

[328 U.S. 262] “There is no material difference between the supposed case and the present one, except that here enjoyment and use of the land are not completely destroyed. But that does not seem to us to be controlling.”

[328 U.S. 263] “The fact that the path of glide taken by the planes was that approved by the Civil Aeronautics Authority does not change the result. The navigable airspace which Congress has placed in the public domain is ‘airspace above the minimum safe altitudes of flight prescribed by the Civil Aeronautics Authority.’ 49 U. S. C. § 180. If that agency prescribed 83 feet as the minimum safe altitude, then we would have presented the question of the validity of the regulation. But nothing of the sort has been done. The path of glide governs the method of operating — of landing or taking off. The altitude required for that operation is not the minimum safe altitude of flight which is the downward reach of the navigable airspace.”

[328 U.S. 264] “Hence, the flights in question were not within the navigable airspace which Congress placed within the public domain. If any airspace needed for landing or taking off were included, flights which were so close to the land as to render it uninhabitable would be immune. But the United States concedes, as we have said, that in that event there would be a taking. Thus, it is apparent that the path of glide is not the minimum safe altitude of flight within the meaning of the statute.”

[328 U.S. 264] “We have said that the airspace is a public highway. Yet it is obvious that if the landowner is to have full enjoyment of the land, he must have exclusive control of the immediate reaches of the enveloping atmosphere. Otherwise buildings could not be erected, trees could not be planted, and even fences could not be run. The principle is recognized when the law gives a remedy in case overhanging structures are erected on adjoining land. The landowner owns at least as much of the space above the ground as he can occupy or use in connection with the land. See Hinman v. Pacific Air Transport, 84 F. 2d 755. The fact that he does not occupy it in a physical sense — by the erection of buildings and the like — is not material. As we have said, the flight of airplanes, which skim the surface but do not touch it, is as much an appropriation of the use of the land as a more conventional entry upon it.”

[328 U.S. 264] “We would not doubt that, if the United States erected [328 U.S. 265] an elevated railway over respondents' land at the precise altitude where its planes now fly, there would be a partial taking, even though none of the supports of the structure rested on the land. The reason is that there would be an intrusion so immediate and direct as to subtract from the owner's full enjoyment of the property and to limit his exploitation of it. While the owner does not in any physical manner occupy that stratum of airspace or make use of it in the conventional sense, he does use it in somewhat the same sense that space left between buildings for the purpose of light and air is used. The superadjacent airspace at this low altitude is so close to the land that continuous invasions of it affect the use of the surface of the land itself. We think that the landowner, as an incident to his ownership, has a claim to it and that invasions of it are in the same category as invasions of the surface.”

[328 U.S. 265] “In this case, as in Portsmouth Co. v. United States, supra, the damages were not merely consequential. They were the product of a direct invasion of respondents' domain.”

The Court held that the claim was founded upon the Constitution and therefore within the jurisdiction of the Court of Claims, but that the findings of fact contained no precise description of the nature or duration of the easement taken, a deficiency that statements in the opinion below could not repair.

[328 U.S. 268] “Since on this record it is not clear whether the easement taken is a permanent or a temporary one, it would be premature for us to consider whether the amount of the award made by the Court of Claims was proper.”

[328 U.S. 268] “The judgment is reversed and the cause is remanded to the Court of Claims so that it may make the necessary findings in conformity with this opinion.”

[328 U.S. 268] “Reversed.”

[328 U.S. 268] “Mr. Justice Jackson took no part in the consideration or decision of this case.”

Editorial note. The dissent, beginning at page 268, maintained that the United States had destroyed no property and taken no easement: it was, in the dissenting view, using a part of the airspace for the flight of its planes, and the injuries complained of were consequential damages from a lawful governmental activity rather than an appropriation of an interest in land.

Editorial note. The separate opinion urged that Congress alone should determine what constitutes navigable airspace subject to exclusive public control, that its plenary power over airspace is comparable to its power over navigable waters, and that the Court's approach would submit the development of air transport to case-by-case judicial line-drawing about altitude and frequency.

Editorial note. This record is a research edition, not a substitute for the official reporter. It reproduces the Reporter of Decisions apparatus in full and reproduces the Court's own text in extended verbatim passages arranged under the Court's own sequence of analysis, each bracketed with the official United States Reports page on which the passage appears. Passages set without quotation marks are Society prose describing the Court's reasoning; every quotation mark in this record encloses the Court's or the Reporter's words.

Editorial note. The Court-authored sections of this record are SELECTED EXCERPTS, not complete opinions. Each such section is headed accordingly, and no section of this record represents a judicial opinion as reproduced in full. Where a separate opinion is described rather than quoted, it is presented as a Real Law Society editorial summary and is not judicial text.

Editorial note. Three limitations are declared. First, the numbered footnotes of both opinions are not reproduced. Second, the statement of facts at pages 258 through 260, the jurisdictional discussion at page 267, and the dissenting opinion at pages 268 through 275 are summarised rather than quoted at length. Third, obvious typographic and scanning defects in the digitised bound volume (for example the broken rendering of “navigable” and “circumstances” in the optical transcription) have been silently corrected against the surrounding text; no substantive word has been altered, modernised, or paraphrased inside a quotation.

Editorial note. For any purpose requiring the complete official text, including the footnotes and the full dissenting opinion, consult the bound volume through the canonical source recorded with this authority.

Editorial note. The respondents owned a dwelling and a commercial chicken farm near a municipal airport used by the United States under a lease. The safe glide path to one runway passed directly over the property at 83 feet — 67 feet above the house, 63 feet above the barn, and 18 feet above the highest tree — and was used 4 per cent of the time in taking off and 7 per cent in landing. Bombers, transports, and fighters passed close enough that the noise and the glare of landing lights startled the family, killed chickens in substantial numbers, and destroyed the commercial use of the farm. The Court of Claims found a servitude had been imposed and valued the property destroyed and the easement taken at $2,000, but made no finding fixing the character or duration of the interest taken.

Editorial note. The Court of Claims entered judgment for the respondents, one judge dissenting, 104 Ct. Cls. 342, 60 F. Supp. 751. The Supreme Court granted certiorari, 327 U. S. 775, and reversed and remanded so that the Court of Claims might make the findings necessary to describe the easement taken.

Editorial note. The issue was whether flights within airspace regulated by federal statute could nonetheless take property of the owner of the land beneath. The Court held that they could: if the flights are so low and so frequent as to be a direct and immediate interference with the enjoyment and use of the surface, an easement has been taken and compensation is due. The rule that follows is that ownership of land includes the airspace the owner can occupy or use in connection with the surface, and that a persistent physical intrusion into that stratum is a taking rather than a mere consequential injury.

Editorial note. Justice Douglas began by discarding the common-law maxim of ownership to the heavens as incompatible with air travel, and by accepting the congressional declaration of a public right of transit through navigable airspace. But he reasoned that the surface owner must have exclusive control of the immediate reaches above the land, since invasions of that space are in the same category as invasions of the surface: buildings, trees, and fences could not otherwise be maintained. The path of glide, he held, is not the minimum safe altitude of flight, so these flights lay outside the airspace Congress placed in the public domain.

Editorial note. The flights destroyed the use to which the land was devoted, and the taking was of a definite interest — an easement of flight — whose permanence the Court of Claims had failed to determine. Because an accurate description of that interest is essential, the interest vesting in the United States, the cause was remanded for findings.

Editorial note. Causby fixes the modern vertical boundary of real property and supplies the treatise's answer to what land is. It also demonstrates that a taking may consist of the acquisition of a servitude rather than of the fee, and that the measure of the constitutional inquiry is interference with actual and intended use of the surface. Its analysis carries directly into the classification of interests and the law of fixtures and appurtenances.

Editorial note. Followed and applied. Griggs v. Allegheny County, 369 U.S. 84 (1962), applied the doctrine to the airport proprietor. Loretto v. Teleprompter Manhattan CATV Corp., 458 U.S. 419 (1982), treated Causby as within the line of cases holding permanent physical occupations to be takings without regard to the public interest served, and Cedar Point Nursery v. Hassid, 594 U.S. 139 (2021), relied on the same appropriation-of-an-easement analysis.

Editorial note. Read with U.S. Const. amend. V (Takings Clause).