227 Conn. 495 | Conn. | 1993
The dispositive question in this case is whether the plaintiff, the county of Westchester of the state of New York, has acquired an air navigation (avigation) easement
The record certified by the Second Circuit Court of Appeals provides the following facts.
Buffers of airspace known as clear zones surround the actual flight paths used by aircraft during take-offs and landings. The Federal Aviation Administration requires that these clear zones be kept free of obstructions so that aircraft may navigate safely during takeoffs and landings. In 1989, due to penetration into the clear zone by certain of the defendants’ growing trees, the Federal Aviation Administration, in effect, reduced the usable length of the runway by approximately 1350 feet.
As a consequence, in February, 1990, the plaintiff initiated an action for injunctive and declaratory relief in the United States District Court for the Southern District of New York claiming, inter alia, that the defendants’ trees interfered with the use of the runway. Westchester v. Greenwich, 745 F. Sup. 951, 953 (S.D.N.Y. 1990).
Both the plaintiff and the defendants subsequently filed motions for summary judgment. Westchester v. Greenwich, 793 F. Sup. 1195 (S.D.N.Y. 1992). The District Court, acknowledging that the courts of this state had never determined whether avigation and clearance easements
Prescriptive easements are recognized in this state. General Statutes § 47-37;
Although these principles are firmly rooted in our statutory and common law, the issue of whether an avigation easement may be acquired by prescription is one
As we have stated, an easement may not be acquired by prescription unless the use of the property is “such as to give a right of action in favor of the party against whom [the adverse use] has been exercised.” Whiting v. Gaylord, supra, 344. For the plaintiff to have acquired a prescriptive avigation easement, therefore, the defendants must have had a right of action against the plaintiff during a fifteen year period when the plaintiffs use of the airspace over the defendants’ properties was “open, visible, continuous and uninterrupted.” The defendants, however, had no right of action against the plaintiff to stop the overflights because federal law prohibits landowners from obtaining injunctive relief against aircraft using the navigable airspace of the United States.
The plaintiff argued, and the District Court agreed, that the right of the defendants to seek compensation from the plaintiff for aircraft flights “so low and so frequent as to be a direct and immediate interference with the enjoyment and use of the land”;
The first certified question is answered: No, not in these circumstances; because the plaintiff has failed to show that its use was adverse as required by Connecticut law.
No costs will be taxed to either party.
In this opinion the other justices concurred.
“An avigation easement is an easement of right to navigation in airspace over designated land.” Sticklen v. Kittle, 168 W. Va. 147, 155, 287 S.E.2d 148 (1981).
The Second Circuit Court of Appeals certified the following questions to this court:
“1. Can an avigation easement be acquired by prescription in the State of Connecticut?
“2. If under Connecticut law a clearance easement is distinct from an avigation easement, can a clearance easement be acquired by prescription in the State of Connecticut?
“3. Whether conceived as incident to an avigation easement or as constituting a separate clearance easement, would a clear zone include whatever air space is necessary to use the easement?” Westchester v. Greenwich, Docket No. 92-7698 (L) (2d Cir. January 6, 1993).
General Statutes § 51-199a provides in relevant part: “(a) This section may be cited as the Uniform Certification of Questions of Law Act.
“(b) The supreme court may answer questions of law certified to it by . . . a court of appeals of the United States . . . when requested by the certifying court if there are involved in any proceeding before it questions of law of this state which may be determinative of the cause then pending in the certifying court and as to which it appears to the certifying court there is no controlling precedent in the decisions of the supreme court of this state.
“(c) This section may be invoked by an order of [the court of appeals of the United States] upon the court’s own motion or upon the motion of any party to the cause.
“(d) A certification order shall set forth: (1) The questions of law to be answered; and (2) a statement of all facts relevant to the questions certified and showing fully the nature of the controversy in which the questions arose.”
“[Practice Book] Sec. 4168. [certified questions from federal COURTS]-IN GENERAL
“The supreme court may answer questions of law certified to it by the supreme court of the United States, a court of appeals of the United States or a United States district court when requested by the certifying court if there are involved in any proceeding before it questions of law of this state which may be determinative of the cause then pending in the certifying court and as to which it appears to the certifying court there is no controlling precedent in the decisions of the supreme court of this state.”
Our resolution of this issue makes it unnecessary for us to decide the second and third certified questions.
See Practice Book § 4065 (c).
The defendants originally included: the commissioner of transportation of the state of Connecticut; the town of Greenwich; Laurelton Nursing Home, Inc.; Greenwich King Street Associates II, L.P.; Mildred Tomonto; and the Convent of the Sacred Heart. See footnote 8.
The District Court also noted “[the County’s] additional motivation behind the . . . present litigation. The County has planned to expand the airport by adding an additional runway and a new terminal. To be eligible for federal grants for airport development projects under the federal-aid Airport Program, the County must own, acquire, or agree to acquire control over, or a property interest in, runway clear zones that the Administrator considers adequate. ... An airport possesses a sufficient property interest if it has an easement . . . giving it enough control to rid the clear zone of all obstructions . . . and to prevent the creation of future obstructions; together with the right of entrance and exit for those purposes, to
The District Court subsequently dismissed the plaintiff’s state law cause of action against the commissioner of transportation concluding that the eleventh amendment to the United States constitution prohibited such a suit. Westchester v. Greenwich, 745 F. Sup. 951, 957 (S.D.N.Y. 1990).
The District Court separated the plaintiffs claimed right to remove certain of the defendants’ trees from the clear zone into two distinct easements: “an avigation or flight easement giving [the plaintiff] a right to fly through the airspace above [the] defendants’ properties”; and “a clearance easement providing [the plaintiff] the right to cut down those trees obstructing the approach to runway 11/29 and its clear zones.” Westchester v. Greenwich, 793 F. Sup. 1195, 1204 (S.D.N.Y. 1992). The court explained that “[t]he function of the clearance easement . . . is:‘to increase the margin of safety for flying by assuring that the glide zone will be free from natural growth or man-made obstructions and the pilot’s vision unobscured above a designated altitude.’ ” Id., quoting Oakland v. Nutter, 13 Cal. App. 3d 752, 763 n.13, 92 Cal. Rptr. 347 (1970).
“[General Statutes] Sec. 47-37. when acquired by adverse use. No person may acquire a right-of-way or any other easement from, in, upon or over the land of another, by the adverse use or enjoyment thereof, unless the use has been continued uninterrupted for fifteen years.”
Section 1304 of title 49 of the United States Code provides in relevant part: “There is hereby recognized and declared to exist in behalf of any
This conclusion also follows from application to the facts of this case of the correlative proposition that the use of property by permission or license cannot ripen into an easement by prescription. That the use of the airspace is authorized by federal law rather than by the defendants does not alter our conclusion. See, e.g., Pro-Fac Cooperative, Inc. v. Baltimore & Ohio R. Co., 36 App. Div. 2d 441, 443-44, 321 N.Y.S.2d 208 (1971) (during period of time that use of property is authorized by state statute, such use cannot ripen into prescriptive easement).
The Federal Aviation Administration defined approach path lies at its lowest point within thirty-one feet of the surface of Tomonto’s property and seventeen feet above the land of Greenwich King Street Associates II, L.P.
In United States v. Causby, 328 U.S. 256, 264-65, 66 S. Ct. 1062, 90 L. Ed. 1206 (1946), the United States Supreme Court held that a private landowner may have a takings claim under the fifth and fourteenth amendments to the United States constitution for damages caused by flights of
The town of Greenwich also argues that the plaintiff’s claim to have acquired a prescriptive avigation easement as to the town fails because an easement may not be acquired over a municipality's right-of-way. Our resolution of the matter on other grounds makes it unnecessary for us to consider this argument.