Aрpellants are homeowners and residents living in close proximity to William B. Hartsfield Atlanta International Airport, a public airport facility owned, maintained and operated by the appellee-City of Atlantа. Appellants brought suit against the appellee in a multi-count complaint, alleging claims for inverse condemnation, nuisance and unlawful trespass arising “[a]s a direcC and proximate result of the operation of the airport facility” and the routing of flights over their property. The appellee, conceding that appellants had stated a claim for inverse condemnation, moved for summary judgment as to the nuisance and unlawful trespass counts. The trial judge, relying in large part upon City of Burbank v. Lockheed Air Terminal, Inc., 411U. S. 624 (36 LE2d 547,93 SC 1854) (1973), held that appellants’ nuisance and trespass claims were preempted by federal regulation of aircraft flights. Appellants appeal, urging that their claims have not been preempted by federal regulation.
The doctrine of preemption by federal regulation was first stated in Cooley v. Board of Wardens,
We find that appellants’ claims have not been preеmpted. As we interpret City of Burbank, that decision merely stands for the proposition that a non-proprietor municipality, acting under its
police
power, may not regulate the timing of aircraft landings. A non-proprietor may not exercise its police power in contravention of federal regulation in the same area. City of Burbank does not, however, stand for the proposition that federal regulation has ousted a prоprietor from the exercise of
all
proprietary control over its own facility. As have several other courts, we construe footnote 14 of the City of Burbank decision as recognizing that the proprietоr has the power to impose airport use restrictions where such restrictions are reasonable and nondiscriminatory. See generally British Airways Bd. v. Port Authority of N. Y., 564 F2d 1002 (2d Cir. 1977); British Airways Bd. v. Port Authority of N. Y., 558 F2d 75 (2d Cir. 1977); National Aviation v. City of Hayward, 418 FSupp. 417 (N. D. Calif. 1976) . Furthermore, there is apparent agreement even among courts that adhere to a more restrictive interpretation of City of Burbank that, at the very least, proprietary control over management of ground facilities has not been federally preempted. See generally San Diego Unified Port Dist. v. Superior Ct.,
Such has always bеen the analysis of this issue in Georgia. “While the right to regulate and control the flight of airplanes in interstate commerce is vested in the Federal Government under the Commerce Clause of the Federal Constitution, the Federal Government cannot invade the rights of the people of the sovereign states so as to regulate them as between themselves. This gov
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ernmental function and power has not been granted to the Federal Government. On the contrary it is reserved in the states by the tenth amendment. Accordingly, . . ., the fact that the location and altitude of landing operations is subject to Federal control does not in any mannеr determine whether the rights of a surface owner have been violated by such flights. Such an owner has a remedy against the person, corporation or agency responsible for the invasion. This petition allеges that responsibility to be in the defendant who controls the airport facilities, and must be taken as true . . . The defendant here is a governing authority, and if it appears that the expanded use to which it puts its airpоrt invades the property rights of adjacent owners, it has the same remedies for curing the situation, by condemnation or otherwise, as exist where it chooses a location in the first instance and locates аn airport thereon. The layout of the field may be entirely proper from the standpoint of air safety and air traffic regulations, and may still constitute a nuisance as to a property owner contiguous thereto if the end result is to compel, authorize, or acquiesce in flights over such owner’s home at altitudes of 50 to 100 feet which result in special damage to him.”
Chronister v. City of Atlanta,
We would emphasize that in so holding we do not express any opinion on the merits of aрpellants’ claim under Code Ann. § 72-101 et seq. All the trial judge held in the instant case was that, under the Supreme Court’s decision in City of Burbank and other federal decisions, appellants’ claims were preempted by federal regulation. All we are called upon to decide is whether that ruling was erroneous. We have held that it was and that appellants’ right of action is not
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barred by the doctrine of preemption. Whether apрellants are entitled to recover damages under applicable Georgia law is an issue which obviously must be resolved at a later date. “If . . . the airplanes, following the traffic patterns and maintaining the аltitudes prescribed by the Federal regulatory agency, have no alternative but to invade the plaintiff’s property in such manner as to constitute nuisance, then this defendant, by maintaining an airport of which such invasiоn is an unavoidable incident, is itself maintaining the nuisance and may be held liable in damages . . . [T]he regulation promulgated by the [federal regulatory agency] as to flight altitudes ‘does not determine the rights of the surface owner, either as to trespass or nuisance.’ ”
Chronister,
Judgment reversed.