*1 UNITED STATES CAUSBY et ux. Argued May 1, May 27, No. 630. 1946. Decided *2 Walter J. Cummings, Jr. argued the cause for the United States. With him on the brief were Solicitor General McGrath, Williams, J. Edward Roger P. Marquis and Alvin O. West.
William E. Comer argued the cause and filed a brief for respondents. Douglas opinion delivered the
Mr. Justice Court. pre- impression. problem
This is a case first The taken, is whether was within respondents’ property sented meaning Amendment, by frequent of the Fifth regular flights navy aircraft over army land at low held that altitudes. Court Claims taking judgment respondents, there was a and entered judge F. dissenting. Supp. one 104 Ct. Cls. The case is writ petition here on a for a of certiorari granted we because of the importance question presented.
Respondents airport own near an 2.8 acres outside *3 Greensboro, dwelling North Carolina. It has on it a house, and outbuildings also various mainly were raising used for airport’s chickens. The end of the north- runway 2,220 respondents’ west-southeast is feet from 2,275 barn and feet path from their house. The glide to this runway passes directly property over the —which is 100 feet wide 1,200 long. feet The 30 to safe glide angle1 approved by the Civil Aeronautics Author- 2ity passes over property this at 83 feet, which is 67 feet above the house, 63 feet above the barn and 18 above feet the highest tree.3 The use the United States of this airport pursuant is to a lease executed in May, 1942, for a term commencing 1,1942 June and ending June 30,1942, with provision for renewals until June 30, 1967, or six glide angle
1 A 30 1to means one foot of elevation or descent for every 30 feet of horizontal distance. 2Military planes subject are to the rules of the Civil Aeronautics where, present Board as in case, Army there are no Navy regu contrary. lations to the Cameron v. Civil Board, Aeronautics 140 F. 2d 482. 3The approximately house is high, 16 feet the barn feet, and the tallest tree 65 feet. which- emergency, end the national after the months ever is the earlier. airport— this use aircraft of the United States
Various direction of fighters. The bombers, transports and is runway particular when a prevailing wind determines is question in runway used. The northwest-southeast in and about per taking four cent the time off used about in the United landing. cent the time Since per seven began May, 1942, its four-motored operations States and its type, the heavier heavy bombers, planes other frequently fighter planes passed have numbers and rather buildings land and considerable ap- enough at times together. They close come close times so and at pear barely tops to miss the of the trees leaves off. to blow the old tops close to the of the trees as glare from startling. night And at The noise result of lights place. As a brightly up noise, chicken business. respondents give up had to their were killed one many As as six to ten of their chickens The total day by flying fright. walls from into the chickens lost in that manner was about 150. Production also fell off. The result was the destruction of the use of property Respondents as a commercial chicken farm. frequently deprived sleep family are of their and the *4 become frightened. Although nervous and there have been no airplane respondents’ accidents on there property, have been several airport accidents near the and close to respondents’ place. These are the essential found facts by the Court of On facts, Claims. the basis of these it found that had property depreciated value. It held that the United States had taken an ease- ment over the property on June 1,1942, and that the value of the property destroyed and the easement taken was $2,000.
260 Air Act on the Commerce
I. United States relies 1926, 568, 171, § Stat. 49 U. C. as amended S. Aeronautics Act of 52 Stat. U. S. C. Civil “com- § Under those statutes United States has plete sovereignty space” national the air exclusive (a). over this country. They grant 176§ U. S. C. any citizen of public right the United States “a of freedom of transit air through navigable commerce4 air space of the United States.” 49 U. S. C. 403. And § “navigable space” air defined as “airspace above the minimum safe flight prescribed altitudes of Civil by the Authority.” Aeronautics U. S. C. 180. And it is provided navigable that “such airspace subject shall be public to a right of foreign freedom of interstate and air navigation.” is, therefore, argued Id. It that since these flights were within the minimum safe altitudes of which had been prescribed, they were an exercise of the declared right of travel through the airspace. The United States concludes flights that when are made within the navigable airspace without any physical invasion of the property of the landowners, there has been taking no property. It says that at most there was merely inci- dental damage occurring as a consequence of authorized air navigation. argues also the landowner does not own superadjacent airspace which subjected he has not possession by the erection of structures or other occu- pancy. Moreover, it is argued that if even the United States took airspace owned by respondents, no compensa- ble damage was shown. Any damages are said to be merely consequential for which compensation no may be obtained under Fifth Amendment.
It is ancient doctrine that at common law ownership of the land extended to the periphery of the Cujus universe — 4 “Air commerce” is defined including “any operation naviga or tion of aircraft directly affects, may or which endanger safety in, interstate, overseas, foreign air commerce.” 49 U. S. C. (3). 401§
261 usque ad coelum.5 But that doctrine ejus est solum est public in the modern world. air place has no The. true, declared. Were that not highway, Congress subject every flight operator transcontinental would sense revolts at the trespass to countless suits. Common recognize airspace To such claims to the private idea.. with clog highways, seriously would these interfere their interest, and trans- development public control and fer private ownership only public into to which just has a claim. general principle present
But that
not control the
does
argument
case. For the United States conceded on oral
flights
if the
it
respondents’ property
rendered
uninhabitable,
taking
be
compensable
there would
under
Fifth
loss,
Amendment.
It
is the owner’s
not the
gain,
taker’s
which is the
measure of the value
Miller,
property taken. United States v.
We those circumstances there would be a taking. Though it only would be an easement 5 Coke, (19th 1832) (4a); 1 Blackstone, Institutes ed. ch. 2 (Lewis 1902) p. 18; Kent, Commentaries (Gould ed. Commentaries 1896) p. ed. 621. 6The property by flooding destruction of all uses of the has been taking. Pumpelly held Bay Co., to constitute a v. Green 13 Wall. 166; Lynah, 445; Welch, United States S. United U. States v. U.S. *6 taken,
which if easement, was permanent merely temporary, normally would be the equivalent a fee interest. would be a definite complete exercise of dominion and control over the surface of the land. The fact that the planes never touched the surface would be as irrelevant day as the absence this livery the feudal of seisin on the transfer of estate. right real The owner’s to possess exploit say, land —that is to his bene- ficial ownership of destroyed. it—would be It would not be a case of damages arising incidental legalized from a nuisance such as was involved in Richards v. Washington Co., Terminal S. 546. In case, U. property owners adjoined whose lands a railroad line were denied recovery for damages resulting from the noise, vibrations, smoke like, incidental to the operations of In the trains. the supposed case, the line of is over the land. And the land is appropriated as directly and if completely as it were used for the runways themselves.
There is no material difference between the supposed
case and
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.
path
glide
The
for airplanes might reduce a valuable factory
graz-
site to
ing
an
land,
orchard
vegetable
to a
patch, a residential
section to a wheat field. Some value would remain. But
the use of the airspace immediately above the land would
limit
utility
of the land and cause a
diminution
its
value.7 That was the philosophy of Portsmouth Co. v.
7It was stated in United States v. General
Corp.,
Motors
323 U. S.
373, 378, “The courts have
deprivation
held that
of the former
owner rather than the
right
accretion of a
or interest to
sovereign
taking.
constitutes the
Governmental
acquisition
action short of
occupancy
title or
held,
has been
if its
complete
effects are so
as to
deprive the owner of all or most of his
subject
interest in
matter,
taking.”
to amount
present
to a
The
case falls short of the General
Motors case. This is not a case where the United States
merely
States, United
In
petition
U. S.
that case the
alleged
fort
nearby-
the United States erected a
on
land,
and fire
battery
there,
established
control station
guns
petitioner’s
Court, speak
and fired
land.
Holmes,
ing through Mr. Justice
reversed the Court of
Claims,
demurrer,
petition
dismissed the
on a
hold
ing that “the
set
specific facts
forth would warrant a find
*7
8
ing
a servitude
been
U.
imposed.”
p.
has
260
S.
Corp. Kersey,
see Delta Air
And
330.
193
20
862,
v.
Ga.
Land,
Cf. United
357.25 Acres
E. 2d 245.
v.
States
S.
of
that approved by the Civil Authority Aeronautics does not change navigable the result. The airspace which Con- in gress placed has the public “airspace domain is above flight the minimum safe altitudes of prescribed the Civil Authority.” Aeronautics U. If S. C. 180.
agency prescribed 83 feet as the altitude, minimum safe presented question then we would have the validity the the regulation. nothing But of the sort has been done. glide governs The path of the operating method of —of landing taking off. The required oper- altitude for that ation is not the minimum safe flight altitude of which is the downward reach of the navigable The min- airspace. prescribed by imum Authority the is during 500 feet the day 1,000 at night (Civil feet for air carriers Air Regu- lations, 61.7400, Pt. 61, 61.7401, §§ Code Fed. Reg. Cum. Tit. Supp., 14, 1), ch. 1,000 and from 300 feet to feet for destroyed property. using part is of it for the of its planes. Township Cf. Warren Detroit, Dist. 460, v. School Mich. 134; England
N. W. 2d v. Co., Smith New 511, 270 Mass. Aircraft 385; Beverly 170 N. E. Airways, Inc., Burnham 311 Mass. 42 N. E. 575. 2d 8 On allegations remand petition the were found not to be supported by the facts. 64 Cls. Ct. type plane on the depending aircraft,
other
60.350-60.3505,
Id.,
Pt.
§§
terrain.
of the
character
ques-
flights
Hence, supra.
Reg.
Supp.,
Cum.
Fed.
which Con-
airspace
navigable
within
tion were not
any airspace
If
domain.
public
within the
gress placed
flights
included,
taking off were
landing or
needed
it uninhabit-
render
the land
were so close to
concedes,
the United States
immune. But
able would
taking.
would be.a
in that event there
said, that
as we have
mini-
not the
glide
is
path
that the
Thus,
apparent
it is
of the
meaning
flight within
altitude of
mum safe
has,
course,
Authority
Aeronautics
statute. The Civil
Congress
But
air traffic rules.
power
prescribe
of them—
terms of one
only
navigable airspace
defined
flight.
minimum
altitudes of
safe
Yet
highway.
airspace
public
We have said that
enjoy-
if
landowner is
have full
it is obvious that
must have exclusive control
land,
ment of
he
*8
Other-
enveloping atmosphere.
immediate reaches of the
not be
erected,
could not be
trees could
buildings
wise
not
run. The principle
and even fences could
planted,
in
recognized
gives
remedy
when the law
case over-
a
on
The
hanging
adjoining
structures are erected
land.9
the space
landowner owns at least as much of
above the
ground as he can
use in
with the
occupy or
connection
Transport,
land.
Hinman
Air
See
v.
In this in Portsmouth case, as Co. v. United supra, the damages consequential. They were not merely product were the of a direct invasion of do- Telephone Co., It was held in Butler v. Frontier 186 N. Y. ejectment 79 N. E. would lie where telephone wire was strung plaintiffs property, though across the even it did not touch the soil. The stated, pp. court 491-492: . . an owner is entitled possession the absolute every and undisturbed part prem of his ises, including space above, as much aas mine beneath. If the huge cable, wire been had several inches thick and but a foot above ground, there would degree, have been a difference in but not in principle. Expand the supported by standing wire into a beam posts upon abutting touching lots without plaintiff’s land, the surface of and the degree only. Enlarge difference would still be one the beam bridge, yet space into a only occupied. would be Erect a house *9 upon bridge, the and the air above the of surface the land would alone be disturbed.” 11 Bouvé, Ownership See Navigable Private of Airspace Under the Clause, Commerce 21 Amer. Bar 416, 421-422; Hise, Assoc. Journ. Ownership Sovereignty Air, 169; 16 la. L. Eubank, Rev. Airspace The Doctrine of the Zone of Possession, Effective 12 Boston Univ. L. Rev. 414. Cress, 243 U. S. States As United
main. stated the not invasion, the of “. . . it is the character damage the long as it, from so damage resulting amount it is question whether substantial, that determines is taking.” a Powelson, supra, p. 279, States v.
We said in United Fifth as in the meaning used “property” while the normally “it will ob- question, Amendment was a federal law.” If we look to local by tain its content reference the same result. Sover- law, we reach North Carolina where “except in the State airspace rests eignty Gen. the United States.” to and assumed granted “un- aircraft is lawful 63-11. The 1943, § Stats. with the then such low to interfere less at altitude as over water, space or the existing use to which land or owner, land or or unless so con- water, put by is prop- as imminently dangerous persons ducted to be Id., erty 63-13. lawfully § on the land or water beneath.” Subject space right flight, “ownership to be above lands and waters of this State is declared . .” vested the several beneath . owners of surface Id., 63-12. there invasion of holding Our was an respondents’ property is thus not with the inconsistent local law immediate governing a landowner’s claim to the superadjacent reaches of the airspace.
The airplane part life, of the modern environment of and the inconveniences which it normally causes are compensable under the airspace, Fifth Amendment. The land, from apart the immediate reaches above the is part of the public domain. We need not determine at this time what precise those limits Flights are. private land are not a taking, they frequent unless are so low and so to be direct and immediate interference enjoy- with the ment and use of land. We need not speculate on that phase of present case. For the findings of the Court
267 was a diminution that there plainly establish Claims frequent, low-level property in value of the and that agree We the direct and immediate cause. flights were im- with that servitude has been the Court Claims posed upon the land. (1)
II. By § 145 the Judicial 28 U. S. C. Code, (1), jurisdiction hear and deter- Court of Claims has mine “All (except pensions) upon claims founded Constitution of the . con- upon any United States or . . tract, express or with the implied, Government United . States . .”
We need not decide repeated trespasses might whether give rise to contract. Cf. Portsmouth Co. v. implied an States, supra. United If there is a taking, claim is “founded upon the Constitution” jurisdic- and within the tion of the Court of Claims to hear and determine. See Hollister v. Mfg. Co., Benedict Hurley 67; 59, U. S. v. Kincaid, 104; Yearsley v. Ross Construction 95, U. S. Co., 309 U. 21. S. Thus, jurisdiction of the Court Claims this case is clear.
III. The Court of Claims held, as
noted,
we have
an easement was taken.
findings
But the
of fact contain
precise
no
description as to its nature.
It is not described
in terms of frequency
permissible
of flight,
altitude, or
type of airplane. Nor is
finding
there a
as to whether
the easement
taken was temporary
permanent. Yet
an accurate description of
property
taken is essential,
since that
interest
vests
the United States. United
Cress,
States supra, 328-329 and cases
cited.
true
the Court of Claims
opinion
stated
its
easement
taken was permanent. But the deficiency in
findings cannot be rectified by statements in the opinion.
United States v. Esnault-Pelterie,
Findings of fact on every “material issue” are statutory *11 im- The 28 U. S. C. 53 Stat.
requirement. empha- is evidence based on findings of fact portance of nature treatment of Claims’ by the Court sized here ease- that the opinion in its It stated of the easement. doubt United States “no because permanent was ment it whereby arrangement of sort to make some intended it whenever military planes for its airport use the could conjecture more like That sounds to do so.” had occasion if so, it would evidence; from and conclusion than a rather the United liability of proper a foundation not be deter- evidence to stop to examine the do not States. We if finding, made. such a support mine it would whether United States v. Esnault- function. that is not our For Pelterie, supra, p. 206. the easement it is not clear whether on this record
Since it temporary one, would is or a permanent taken whether the amount to consider premature for us proper. was by the Court Claims award made remanded is reversed and cause is judgment The necessary it may make the Claims so to the Court of opinion. conformity with this findings
Reversed. part Jackson took no the consideration Me. Justice or decision of this case.
Me. Justice Black, dissenting. prop- “private provides
The Fifth Amendment just com- erty” public “be taken for use without shall not today holds that the Government pensation.” The Court by flying property repeatedly respondents’ has “taken” height at Army directly above land bombers from light and noise these eighty-three feet where sleep their chickens respondents caused to lose effect of the Court’s decision is to be killed. Since the limit, imposition relatively absolute consti- barriers, adjustments through possible tutional future legislation regulation might necessary become growth transportation, my with the of air and since view I barriers, the Constitution does not contain such dissent. following background a brief statement of opinion “taking” of the events that the terms a Court’s
within the Fifth meaning Amendment: Since 1928 eight there has an miles been airfield some from Greens- boro, North Carolina. In this April, 1942, airport was *12 by Greensboro-High taken over Point Air- Municipal port Authority it and has since then as a operated munic- In ipal airport. Government, by contract, right obtained the to use “concurrently, jointly, the field and in before, common” with other users. in 1934, Years respondents bought had their property, located more than one-third of a mile from the airport. planes Private from airport flew buildings over their land and farm from 1934 to 1942 doing though and are still so. But these respondents disturbed extent, Army some bomb- ers, which fly started land height over the in 1942 at a eighty-three feet, them they disturbed more because larger, were came over more frequently, made a louder noise, night and greater glare at a by was caused their lights. glare This noise respondents’ sleep, and disturbed frightened them, and made them nervous. The noise and light frightened also respondents’ chickens so much that many against buildings them flew and killed. were
The Court’s opinion seems to indicate the mere flying planes through the column of directly air above respondents’ land does not constitute a “taking.” Conse- it quently, appears to be noise glare, the extent and under the circumstances shown here, which make the Gov- ernment a of private seizer property. But the allegation best at constitutes damages, in resulting glare
of noise and noise if the recovery be might there where in tort an action statute,1 of a violation nuisance, a a light constituted Government But the negligence.2 the result or were except Claims Court of in the to be sued has not consented And contract. implied or express on in actions based reason by unless here, implied contract there is no the Government bombers caused glare noise in a property have “taken” can be said to taking property concept sense. The constitutional given been never in has heretofore used Constitution opinion presents no meaning. a The Court’s sweeping so light onto his noise shines case a man who makes where ejected property from that neighbor’s property been anyone it. Nor would taking possession of wrongfully on noisy passing claim automobiles seriously take taking wrongful possession of the homes highway are greatly thereon, city located or that a elevated train which wrong- who live it sleep interferes with of those next to fully property. takes their Even one case this Court which considering sufficiency complaint of a gave most meaning elastic to the phrase “private taken” property as used the Fifth Amendment, did *13 States, go not Portsmouth Co. United so far. v. 260 U. S. 1 Neiswonger Goodyear Co., Tire & Rubber 35 F. 761. 2d 2 damage As to Judge the to chickens, Madden, dissenting from this judgment against Government, said, “When new, railroads were in sight cattle hearing fields and the trains alarmed, of were think ing great moving objects would turn aside and harm them. away sight Horses ran at and sound threshing of train or a engine. machine get The farmer’s chickens have to being over alarmed at the incredible racket starting up of suddenly the tractor in the shed adjoining the chicken sights house. These and part noises are a of our world, airplanes are greater now and will be to degree, like part wise a of it. These disturbances should not torts, be treated as in the airplane, any case of the they more than are so treated in the case of public the railroad or highway.” Ct. Cls. 358. I the Constitution I nor think willing, am not do phrase so extend that me, to and the decisions authorize right relief constitutional to guarantee an absolute as on aver- subject legislative change, which is based by govern- ments that at best show mere torts committed adjust- agents land. The future flying ment while rights owners, ment of the remedies of property might be necessary flight planes found because at safe altitudes, should, in view of the immi- especially expansion navigation, nent I think air be left where it, Constitution left Congress. with Nor Ido reach a different conclusion the fact because of the particular circumstance which under Court’s opinion makes absolutely the tort here is the actionable, passing through a of air an column at elevation of eighty-three directly feet over respondents’ property. It is inconceivable to guarantees me that Constitution airspace that the of this Nation navigation needed air owned the particular persons happen who to own degree land beneath to the they same own the sur- rigid’constitutional face below.1 No rule, my judg- ment, commands that the air must be considered as marked off separate into compartments by imaginary metes synchronize bounds order to air ownership with ownership. land I think that en- Constitution Congress trusts with power full to control navigable all airspace. Congress has already acted under that power. by statute, has Stat. 52 Stat. 973, provided that “the United States of America is possess ... and exer- cise complete and exclusive national sovereignty in the report The House in its on Air Commerce Act of 1926 stated: public right “The in the navigable space air owes its
source to the same constitutional basis which, under decisions of Supreme Court, given the gation public rise to a easement of navi- *14 navigable in the waters of the States, United regardless ownership adjacent the subjacent Rep. soil.” H. No. 572,69th Cong., Sess., p. 1st done This was .” . . States the United above space air Clause the Commerce assumption under to power plenary the same Congress gave Constitution navi- over power plenary as its airspace navigable control Sess., Cong., 1st 69th Rep. H. No. waters. gable see 14; Sess., p. Cong., 1st 69th No. 10; Rep. H. p. To Park, S. 386. 324 U. Commodore States v. United would navigation air for used airspace that the make sure “navigable declared Congress further free, remain of freedom right public to a subject shall be airspace finally stated and foreign navigation,” air interstate right of freedom public exists “a that there emphatically space of navigable air through . of transit . . the air is declared Congress thus United States.” subject to ownership, not private subject to free, acting those Congress and delimitation the courts. had only power ones who authority under its were air- flight planes. “Navigable regulate control and above the minimum safe space” “airspace was defined as flight prescribed by Civil Aeronautics altitudes Thus, Congress . Authority . .” U. S. C. 180. given Authority power the Civil Aeronautics exclusive subject determine exclu- navigable airspace what its power specifically sive control. This derives from the prescribe Section which authorizes the “air Authority to traffic rules governing of, and for the navigation, protection, of, aircraft, and identification including rules as to safe of flight prevention altitudes and rules of collisions between aircraft, between aircraft and land or water vehicles.” there Here was no showing that flying bombers land any violated regulation rule or of the Civil Aeronautics Authority. Yet, unless we hold the Act unconstitutional, at least such a showing would be necessary before the courts could act without interfering with the exclusive authority which Congress gave to the administrative Not agency. even a *15 be suffi- would not acted Authority that the showing any have event, were courts For in that cient. stay their should all, they case at authority to act this has acted. Authority hand till can- congressional statute broad provisions distinction, making a by properly
not be circumscribed of safe altitude opinion does, as between rules the Court’s cross-country flight and rules flight while on the level of taking First, off. such during landing and safe altitude practical from the a distinction cannot be maintained Congress intended unlikely It is standpoint. making for Authority prescribe safe altitudes the same time it left the
cross-country flights, while at landing unregu- more and take-off operations hazardous moreover, clearly lated. The shows legislative history, Authority’s prescribe air traffic rules power to includes the power governing landing to make rules and justified take-off. isNor the Court that his- ignoring tory labeling by rules of safe altitude while on level of cross-country flight prescribing as rules the safe altitude proper and governing rules landing take-off and as rules of operation. For Report the Conference explicitly states that such distinctions were purposely eliminated from the original House Bill in order that the Section air on traffic “might given rules the broadest possible construc- tion the . . . Aeronautics Authority] [Civil and the 2 In construing courts.” the statute narrowly, the Court 2The full statement reads: “The provides substitute Secretary by regulation that the shall establish air traffic for navigation, protection, rules and iden-
tification aircraft, including of all rules as to safe altitudes prevention and rules for the of collisions between vessels provision aircraft. The taking as rules alight- for off ing, for instance, unnecessary was eliminated as specification, for the reason that such rules are but one class of air traffic rules the navigation protection of aircraft. Rules as to mark- ing were eliminated for the reason fairly that such rules were included within scope of air rules for the identification of air- construc- broad proper A Congress. the intent thwarts permit would commanded, Congress tion, such declaring today without it has decide what Court given Act I think Congress unconstitutional. Act of is constitutional. intended *16 broad construction the in the about brought be confusion could greater No would than transportation of air coming age ham- to interpretation constitutional by courts result were Old con- air free. keep the to its efforts Congress per be intro- land should ownership of private cepts of I have no doubt regulation. field of air into the duced judicial inter- by handicapped if not Congress will, freedom of the preserve Constitution, of the pretations just of satisfy the claims time, at the same air, the more newer, larger, and noise of persons. The aggrieved disturb louder and louder and planes may grow powerful problems But the solution people more and more. and new technological advances by these precipitated through application the ways living of cannot come about formulated and enforced rigid constitutional restraints of made, be adjustments may the have to by What courts. however, only certain, the future can reveal. seems by attempt craft. No is made either the Senate bill or the House fully of rules that amendment define the various classes would scope rules, as, instance, within the traffic fall of air traffic for [sic] lights signals along airways air-ports upon and at emer- gency landing general, fields. In these rules would relate to subjects by navigation regulations same as those covered laws and by and above, surplusage motor the various State vehicle traffic codes. As noted in specifying particular was eliminated air traf- given might pos- fic rules in order that the term the broadest by Department sible construction of Commerce and the Rep. Cong., H. Sess., p. courts.” No. 69th 1st 12. landing prescribing That the rules for and take-off are rules “mini- flight” by mum safe of following altitudes is shown further state- Report: ment the House “. . the . minimum safe of altitudes vary . . . would with the terrene and location of cities [terrain] and would coincide with the surface airports.” of the land or water at Id. at p. personnel possess techniques
that courts do not or to consider and act combinations of upon complex entering problems. factors into the The contribution damages courts must be made through awarding injuries suffered flying planes, from the granting injunctions prohibit their flying. When these two simple remedial devices are elevated ato con- stitutional level Fifth under the Amendment, as the Court today seems to done, have they can stand as obstacles better adapted techniques might be offered by experi- experts enced and accepted by Congress. Today’s opin- ion I is, fear, an opening wedge for an judicial unwarranted interference with power Congress to develop solu- tions for new and vital problems. national In my opinion this case should be reversed on ground that there has *17 been no “taking” in the constitutional sense.
Mr. Justice joins Burton in this dissent. FISHGOLD v. SULLIVAN DRYDOCK & REPAIR
CORP. et al. Argued May 6, 1946. May 27, 1946. No. 970. Decided