United States v. Causby

No. 630. Argued May 1, 1946. Decided May 27, 1946. Certiorari to the Court of Claims. Judgment reversed and the cause remanded for findings on the nature and duration of the easement taken (104 Ct. Cl. 342, 60 F. Supp. 751, reversed and remanded). Opinion of the Court by Justice Douglas; Justice Black dissenting; Justice Jackson took no part in the consideration or decision of the case.

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. Bombers, transports, and fighters passed close enough that the noise and glare 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 awarded compensation, but made no finding fixing the character or duration of the interest taken.

Editorial note. The issue was whether flights within navigable airspace, authorised 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 flights here 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, requiring a remand.

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).