263 N.C. 656
N.C.
1965
Bobbitt, J.

In United States v. Grizzard, 219 U.S. 180, 31 S. Ct. 162, 55 L. Ed. 165, 31 L.R.A. (N.S.) 1135, Mr. Justiсe Lurton said: “Whenever there has been an actual physical taking of a part of a distinct tract of land, the compensation to be awarded includes not only the market value of that part of the tract appropriated, but the damage to the remainder resulting from that taking, embracing, of course, injury due to the use to which the part appropriated is to be devoted.” (Our italics). This excerpt from Mr. Justice Lurton’s opinion has been quoted with approval by this Court: Power Co. v. Hayes, 193 N.C. 104, 136 S.E. 353; Moses v. Morganton, 195 N.C. 92, 141 S.E. 484; Ayden v. Lancaster, 197 N.C. 556, 150 S.E. 40; Light Co. v. Rogers, 207 N.C. 751, 178 S.E. 575; Light Company v. Creasman, 262 N.C. 390, 137 S.E. 2d 497.

Under legal principles declared in Light Company v. Creasman, supra, and cases cited therein, respondent, basеd on the facts alleged in the petition and original answer, was entitled to compensation for the value of the 12% acres condemned by petitioner and for damage to the remainder of her 78-acre tract caused by (1) the severance of the 12% acres therefrom and (2) the use to be made by petitioner of the 12% acres.

Ordinarily, “for the purpose of determining the sum to be paid as compensation for land taken under the right of eminent domain, the value of the land takеn should be ascertained as of the date of the taking, and . . . the land is taken within the meaning of this principle when the proceeding is begun.” Power Co. v. Hayes, supra.

In condemnation proceedings, the petition, when filed by the con-demnor, “must contain a description of the real estate which the corporation seeks to acquire.” G.S. 40-12; 29A C.J.S., Eminent Domain § 259; 18 Am. Jur., Eminent Domain § 325; Gastonia v. Glenn, 218 N.C. 510, 11 S.E. 2d 459; Light Company v. Creasman, supra. The obligation of commissioners appointed pursuant to G.S. 40-17 is to appraise the lands described in the petition and “ascertain and determine the compensation which ought justly to be made by the corporation to the party or parties owning or interested in the real estate appraised by them.”

Admittedly, petitioner does not seek herein to condemn a flight ‍‌​‌​‌​​​‌‌​​‌​​​‌‌‌​‌​‌​‌​​‌‌​​​‌‌​‌‌‌‌‌​​​​​​​‌‍easement over the remaining portion of respondent’s land.

As we interpret said “Amendment to Answer,” the thrust of respondent’s allegations is that petitioner, prior to the commencement of this proceeding, had appropriated a flight easement over her entire 78-acre traсt. Even so, respondent does not allege such appropriation as the basis for a counterclaim in which, upon payment of a determined fair value, petitioner would acquire a flight easement clearly defined as to locаtion and elevation. Rather, respondent alleges what occurred prior to this proceeding constitutes a basis for the award of additional compensation herein.

In United States v. Brondum (C.A. 5th), 272 F. 2d 642, Wisdom, Circuit Judge, in discussing the distinction between a clearance or obstruction easement and an avigation or flight easement, said: “An avigation easement may or may not contain provisions dealing with obstructions, but, unlike a clearance easement, in express terms it permits free flights over the land in question. It provides not just for flights in the air as a public highway- — -in that sense no easement would be necessary; it provides for flights that may be so low and so frequent as to amount to a taking of the property.”

Respondent cites and relies upon decisions in actions for “inverse condemnation,” a tеrm often used to designate “a cause of action against a governmental defendant to recover the value of property which has been taken in fact by the governmental defendant, even though no formal exercise of the power of eminent domain has been attempted by the taking agency.” City of Jacksonville v. Schumann (Fla.), 167 So. 2d 95, 98; Thornburg v. Port of Portland (Or.), 376 P. 2d 100; Martin v. Port of Seattle (Wash.), 391 P. 2d 540.

The legal doctrine indicated by the term, “inverse condemnation,” is well established in this jurisdiction. Where private property is taken for a public purpose by a municipality or other agency having the power of eminent domain under circumstances such that no procedure provided by statute affords an applicable or adequate remedy, the owner, in the exercise of his constitutional rights, may maintain an action to obtain just compensation therefor. McKinney v. High Point, 237 N.C. 66, 74 S.E. 2d 440; Eller v. Board of Education, 242 N.C. 584, 89 S.E. 2d 144; Sale v. Highway Commission, 242 N.C. 612, 89 S.E. 2d 290; Cannon v. Wilmington, 242 N.C. 711, 89 S.E. 2d 595; Rhyne v. Mount Holly, 251 N.C. 521, 112 S.E. 2d 40; Insurance Co. v. Blythe Brothers Co., 260 N.C. 69, 131 S.E. 2d 900.

“Inverse condemnation” actions in which a defined flight easement was vested in the United States by ‍‌​‌​‌​​​‌‌​​‌​​​‌‌‌​‌​‌​‌​​‌‌​​​‌‌​‌‌‌‌‌​​​​​​​‌‍judicial decree and in which the landowner was awarded compensation therefor include the following: Herring v. United States (Ct. Cl.), 162 F. Supp., 769; Highland Park v. United States (Ct. Cl.), 161 F. Supp. 597; Matson v. United States (Ct. Cl..), 171 F. Supp. 283. In Herring, it was adjudged that the United States, upon payment of сompensation in the amount of $7,500.00, “shall have an easement of flight for light, propeller-driven, single-engine airplanes at a minimum elevation of 45 feet above the surface of the ground and higher.” In Highland Park, it was adjudged that the United States, upon payment оf compensation in the amount of $65,-000.00, “is vested with a perpetual easement of flight over plaintiff’s property at an elevation of 100 feet or more above the ground, with airplanes of any character.” In Matson, it was adjudged that the United Statеs, upon payment of compensation in the amount of $5,-800.00, was entitled to “a perpetual easement of flight ... for its planes over the entire property of plaintiffs’ 357.7 acres at elevations above eighty-five feet”; and it was further adjudged that the plaintiffs execute a deed conveying to the United States such an easement.

In Avery v. United States (Ct. Cl.), 330 F. 2d 640, where the United States had theretofore acquired by condemnation a defined flight easement, it was held that “the introduction of larger, heavier, noisiеr aircraft can constitute a fifth amendment taking of an additional easement even though new aircraft do not violate the boundaries of the initial easement” and entitle the landowner to additional compensation for “an uncompensated expansion of the existing easement.”

Other pertinent decisions are cited and discussed in Annotation, “Airport operations or flight of aircraft as taking or damaging of property,” 77 A.L.R. 2d 1355 et seq., and supplemental decisions.

In United States v. Causby, 328 U.S. 256, 90 L. Ed. 1206, 66 S. Ct. 1062 (1946), “a case of first impression,” the Supreme Court of the United States reviewed the decision of the United States Court of Claims in Causby v. United States (Ct. Cl. 1945), 60 F. Supp. 751. The claimants (Causby) owned lаnd adjacent to the Greensboro-High Point Municipal Airport. The airport had been leased by the United States. The path of glide of aircraft taking off from or landing upon the (paved) northwest-southeast runway was directly over the Causby property. Various ‍‌​‌​‌​​​‌‌​​‌​​​‌‌‌​‌​‌​‌​​‌‌​​​‌‌​‌‌‌‌‌​​​​​​​‌‍aircraft of the United States, including bombers, .transports and fighters, used said runway. The findings of the Court of Claims were to the effect that there was a diminution in value of the 'Causby property caused by frequent, low-level flights of United States ■ aircraft.

The Suprеme Court agreed “that a servitude has been imposed upon the land.” However, the decision of the Court of Claims was reversed. The ground for reversal was stated as follows: “The Court of Claims :held, as we have noted, that an easement was taken. But the findings of fact contain no precise description as to its nature. It is not described in terms of frequency of flight, permissible altitude, or type of airplane. Nor is there a finding as to whether the easement taken was temporary or permanent. Yet an accurate description of the property taken is essential, since that interest vests in the United States.”

Thereafter, in Causby v. United States (Ct. Cl. 1948), 75 F. Supp. 262, the Court of Claims found: “There is no proof that subsequent to November 1, 1946, the defendant asserted or exercised such аn easement. The easement taken was temporary and was for the period from June 1, 1942, to November 1, 1946.” As a result of the taking of said temporary easement, Causby was awarded compensation in the amount of $1,435.00 consisting of (1) $1,060.00 for decreаse in rental value during said period, and (2) $375.00 on account of destruction of chickens.

In Griggs v. Allegheny County, 369 U.S. 84, 7 L. Ed. 2d 585, 82 S. Ct. 531, rehearing denied, 369 U.S. 857, 8 L. Ed. 2d 16, 82 S. Ct. 931, the Greater Pittsburgh Airport, owned and operated by Allegheny County, was involved. The opinion of Mr. Justice Douglas states: “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.” Again: “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 regulations of G.C.A.; nor were any flights lower than necessary for a safe landing or take-off. The planes taking off from the northeast runway observed regular flight patterns ranging from 30 feet to 300 feet over petitioner’s residence; and on let-down they were within 53 to 153 feet.” It was held, in accordance with Causby, that there had been a taking of an easement by Allegheny County for which Griggs was entitled to compensation. The basis of the dissent of Mr. Justice Black, with whom Mr. Justice Frankfurter concurred, is that the Unitеd States of America rather than Allegheny County should pay for an easement necessary to be acquired to comply with federal statutory provisions and rules and regulations of federal agencies.

Our statutes, codified as G.S. Chapter 63, entitlеd “Aeronautics,” contemplate full cooperation and compliance with federal statutes and rules and regulations of appropriate federal agencies.

While the factual allegations in respondent’s “Amendment to Answer” are meager, analysis thereof discloses respondent seeks additional compensation as in an “inverse condemnation” action for the diminution in value of her 78-acre tract prior to the commencement of the present proceеding allegedly caused by the actual use of her property “as an approachway for airplanes entering and leaving the airport.” It does not appear whether any particular line of flight over respondent’s 78-acre trаct had been designated by petitioner or by any federal agency as an approachway to the north-south runway (as then constructed) of the airport. Be that as it may, upon final adjudication in this proceeding (G.S. 40-19; Topping v. Board of Education, 249 N.C. 291, 299, 106 S.E. 2d 502), petitioner will own in feе simple the 12% acres on which the extension of the north-south runway is constructed. After construction of said extension, there will be no need for planes approaching or taking off from said airport to fly over any portion ‍‌​‌​‌​​​‌‌​​‌​​​‌‌‌​‌​‌​‌​​‌‌​​​‌‌​‌‌‌‌‌​​​​​​​‌‍of respondеnt’s remaining property. A portion of the north-south runway as extended will be on the 12% acres condemned in this proceeding. Hence, no permanent flight easement with reference to respondent’s remaining property is presently involved.

As оf the date this proceeding was commenced, no “inverse condemnation” action had been commenced by respondent. If she was entitled to compensation for a flight easement previously used by petitioner, the nature and duration of such flight easement had not been determined. The extension of the north-south runway, partly on the 12% acres condemned herein, radically changes the north-south “approach-way” to said airport. Whatever flight easement, if any, petitioner had taken prior to the commencement of this proceeding must be considered a temporary easement.

We reach the following conclusions:

The compensation to be awarded respondent herein for the 12% acres condemned herein is to be determined in accordance with the rules set forth in the first two paragraphs of this opinion. In making such determination, both the 12% acres condemned and the remainder of respondent’s 78-acre tract are to be considered free and clear of flight easements of any kind.

The foregoing determination herein will be without prejudice to respondent’s right, if so advised, to institute an independent action to recover compensation for the damages, if any, she sustained on account of flights over her 78-acre tract prior to the commencement of this proceeding.

Legal principles pertinent to such independent action are discussed in Causby and other cited cases. Suffice to say, whether respondent can recover in such independent action will depend upon legal principles and evidence that have no place in determining the compensation to be paid respondent for the 12% acres condemned herein. Such action, in our opinion, may not be considered a cause of action “arising out of the . . . transaction set forth in the complaint as the foundation of the plaintiff’s claim, or connected with the subject of the (plaintiff’s) action,” within the meaning of G.S. 1-137. Thе statutory procedure for condemnation, G.S. 40-11 et seq., does not contemplate that commissioners pass upon issues of fact prerequisite to an adjudication as to whether respondent is entitled to recover for an alleged appropriation by use of an easement of flight.'

Having reached the conclusion respondent may not assert herein “the new matter” alleged in said “Amendment ‍‌​‌​‌​​​‌‌​​‌​​​‌‌‌​‌​‌​‌​​‌‌​​​‌‌​‌‌‌‌‌​​​​​​​‌‍to Answer,” the order of Judge Riddle, which affirmed the clerk’s order of April 17, 1964, is affirmed.

Affirmed.