Griggs v. Allegheny County

PETITIONER:Griggs
RESPONDENT:Allegheny County
LOCATION:U.S. District Court for the District of Columbia

DOCKET NO.: 81
DECIDED BY: Warren Court (1958-1962)
LOWER COURT:

CITATION: 369 US 84 (1962)
ARGUED: Jan 16, 1962
DECIDED: Mar 05, 1962

Facts of the case

Question

Audio Transcription for Oral Argument – January 16, 1962 in Griggs v. Allegheny County

Earl Warren:

Number 81, Thomson Griggs, Petitioner, versus County of Allegheny.

Mr. Blair.

William A. Blair:

Mr. Chief Justice Warren, may it please the Court.

This case comes before your Honorable Court on the laws of a certiorari to the Supreme Court of Pennsylvania and involves an eminent domain proceedings before a Board of Viewers which made an award to the petitioner for the taking of an easement over his airspace by reason of the flight of planes in and out of the Greater Pittsburgh Airport owned by the County of Allegheny.

The award was affirmed by the Court of Common Pleas.

Our exceptions filed embracing simply the question of risk of liability of the County for the taking.

On appeal, the Supreme Court of Pennsylvania reversed — reversed the lower court and then set aside the award made to the petitioner on the sole ground that the County of Allegheny did not operate the planes involved in going to and from the airport.

The question before of this Court seems to us then is as to whether or not, on the undisputed facts in this case, the respondent took property of the petitioner and the petitioner has been deprived of his property without due process in violation of the Fifth and Fourteenth Amendments of the Constitution of the United States.

It is our contention that the petitioner under authority of the decision of this Court in United States versus Causby 328 — or 328 U.S. at page 256 that the regular, frequent, and necessary low flights of the planes over the plaintiff’s property in order — of petitioner’s property in order to get to and from this airport constant — which interfered with this proper use and enjoinment of property constitute a taking and that the petitioner is entitled to just compensation from the County which owns airport.

The Causby case, as you may recall, involved flights of bomber planes operated by United States Government in 19 — around 1942 at Greensboro.

The Government there had leased the airport and the planes, the bombers and other heavy military craft flew over the property of the Causby family which operated a chicken farm.

Their property was located on a guide path or approach zone leading from the airport and the planes passed over at a height as it was testified and shown in that case as low as 83 feet.

As a consequence of this regular constant flights the chickens, were — some of them were killed and were affected so that the Causby family had to give up operating the chicken farm and in addition to that, by reason of the noise, the vibration, the lights, they were disturbed in their regular occupancy and became frightened and nervous.

The Court of Claims made an award to the Causbys on a basis that there had been depreciation in the value of the property in the taking.

The Government appealed to this Court on the ground that these flights were lawful flights that they were made within the navigable airspace as defined by the Civil Aeronautics Board, and therefore, were lawful privileged flights.

This Court said briefly that those flights were not privileged that the space below the safe navigable airspace of 500 feet or thousand feet heading upon the location of property was not within the navigable airspace as defined in the Civil Aeronautics Act of 1926 and also on 1930 of rather the Air Commerce Act of 1926 and of Civil Aeronautics Act of 1938.

Our situation is similar to that of Causby in their public use.

The County of Allegheny sometime prior to 1952, determined that the existing airport facilities were not adequate for the public of Allegheny County.

They acquired an extensive acreage in the Western part of the County and proceeded to lay out an airport.

This was in the vicinity of the — our petitioner’s property and included in the arrangements for the airport or the plans for the airport is what they called a master plan.

Now this master plan showed the runways, the three runways and also the approach zones to those runways which must be followed by planes entering and leaving the airport.

In addition, under the Federal Airport Act which was passed in 1946, the County of Allegheny made application as the sponsor to the Civil Aeronautics Authorities for the grant of funds.

I should say that the master plan had to be approved by the Civil Aeronautics Authority here in Washington and it was approved.

In addition, as I say, they made application for funds under this federal aid to airports as a result of which, they didn’t get extensive or quite large sums of money to aid in the building of the airport and enter into agreements with the Federal Government could — in which included among other things agreement that they would get — they were to adopt zoning ordinances or obtain easements in airspace where necessary in order to permit the safe operation of planes in and out of the airport.

Now, the petitioner’s property is located on the Northeast approach zone and that is the zone leading to the Northeast runway.

It’s about 3200 feet from the end of the approach zone.

I might say that the approach zone as shown on these master plan extends from the airport at the end of the runway a distance of 10,000 feet Northeast from the airport on a path and glider on gradient of 42:1 which means for every foot forward it rises one foot.

Our property is situated probably about 30 feet higher than the level of the airport so that on the glide angle, the approach to and from this airport, the planes on the glide angle would be according to the testimony in the record, about 12 feet above the chimney of the petitioner’s property.

After the opening, the airport was opened on June 1st, 1952 by — pursuant to a resolution of the Board of County Commissioners other — the Board of View found as result of its independent investigation and testimony taken before, and said as what we found in directly the page 33, since the opening of the airport in Northeast runway and its approach area has been on regular operational use for landing and taking off of commercial and other aircraft in regular flight patterns of heights near and over petitioner’s residence from take off has been from 30 to 300 feet and on let down from 53 to 153 feet.

The result of this operation is constant operation, a regular operation.

William A. Blair:

The Board says, the low flight of the aircraft over petitioner’s property interfered with this existing use and enjoinment.

The interference resulted from noise, disturbances and vibrations were created by such airplanes as well as the fear for personal safety caused by the low flights in close proximity to the petitioner’s residence.

The said noise of planes over petitioner’s property, let down to the Northeast runway have been comparable to that of a noisy factory and on take off to a noise of the riveting machine or steam hanger, that is also found on page 33 of the record.

Felix Frankfurter:

Mr. Blair, were any of these matters contested?

William A. Blair:

No sir.

There was no defense, the County offered no testimony.

Felix Frankfurter:

Any question as to the actual damage —

William A. Blair:

No sir.

Felix Frankfurter:

— to your client?

William A. Blair:

No, the County offered no testimony at —

Felix Frankfurter:

Where did the controversy get down to?

William A. Blair:

The controversy gets down to one question whether or not the County is liable, as an owner and operator of this public airport for taking of an easement over the plaintiff’s over the petitioner’s property and that’s the sole question before you whether or not, there was a taking after which the —

Felix Frankfurter:

Well, is there any question that there was a taking?

William A. Blair:

Yes sir.

Felix Frankfurter:

Or was there a question of who took?

William A. Blair:

Yes and well, the Supreme Court of Pennsylvania doesn’t say there was or wasn’t a taking.

Felix Frankfurter:

Alright.

That therefore that is not in contest here, is it?

William A. Blair:

Well, they placed upon in the State Supreme Court I don’t know well how that was — that’s in contest.

We say there was a taking.

The Supreme Court says that we should look to the airlines for relief but it doesn’t say that there wasn’t a taking sir.

Felix Frankfurter:

But the — your Supreme Court said, even if there were — assuming there was a taking, the County is not liable.

William A. Blair:

That’s what they say.

Felix Frankfurter:

That’s the issue.

William A. Blair:

That’s the issue.

Felix Frankfurter:

And that’s the only issue —

William A. Blair:

And that’s the only issue involved in this case.

Felix Frankfurter:

But we’re not here to — we’re not here reviewing a denial by your Court that property was taken.

I take it, the whole controversy here is on the assumption even if it was taking, the County didn’t take it.

William A. Blair:

That’s exactly the question, Your Honor and we so state it in our brief and that was basis on which it went up to the Supreme Court whether or not, the County was liable for a taking under the circumstances that exist in this particular situation.

Felix Frankfurter:

And your burden here is, to disprove the conclusion of the Supreme Court —

William A. Blair:

Yes sir.

Felix Frankfurter:

— that if there was a taking, you’re not the County who is responsible.

Isn’t that right?

William A. Blair:

I beg your pardon?

Felix Frankfurter:

Your burden is to undermine the conclusion of the Supreme Court — forgive me, that assuming there was a taking, the County didn’t do the taking, the County isn’t liable.

William A. Blair:

Yes sir.

Felix Frankfurter:

And what do you say to that?

William A. Blair:

I say to that that this first, the County selected the location of the airport.

It had no mandate from any person or from the Federal Government or from the airlines to locate for it at any particular spot.

They selected the airport and the airport location.

They selected it for one purpose for the public use of all other people of Allegheny County.

There would be no excuse for this airport except for public use and the County would have no right to build it except for the use of the public.

The consequence is, that there is a corridor leading beyond another airport over our property for the transportation of people for hire by airlines operating under franchises from the Federal Government and according to the controllers of the Federal Government whereby, for the benefit of the County, the residents of the County of Allegheny are property subject to — subjected to this servitude.

Felix Frankfurter:

I’m not suggesting that you can’t sue the County.

I just want to explore the problem.

Could you sue the airlines?

William A. Blair:

Well, we might sue the airlines but if we did so, we would be running counter to the Federal in the stand to the counter of the Air Commerce Act which say, these airlines are flying exactly where there are required to fly.

Felix Frankfurter:

And then in your view, the airlines were not tortfeasors, were they?

William A. Blair:

In our view, the airlines are flying where they are compelled to fly under the regulations of the Civil Aeronautics Board.

Felix Frankfurter:

But you could not sue them under your view, is that right?

Or are you saying that the County and the airlines have joint tortfeasors, which are you say?

William A. Blair:

No sir.

I would say here since its public use, it’s only the County that’s liable.

Earl Warren:

If the airlines were liable too, they wouldn’t be liable for a taking of your property —

William A. Blair:

No sir.

Earl Warren:

— they will be liable for injuring at —

William A. Blair:

That would be liable under trespass problem and because of the repeated trespasses, we would be given power and the law of Pennsylvania could go in and restrain their operation over our property.

Felix Frankfurter:

Well if there should be — if they are trespasses, you could sue them in damages, couldn’t you?

William A. Blair:

Well, we could sue them in damage if Your Honor please but we could never prove damages where we haven’t — we included in our record here a part of the testimony taken that this hearing before the Board of View showing the utter impossibility of locating or determining which claim cause damage or how much.

William A. Blair:

It’s just an impossibility and an illusory thing.

It can’t be done.

Felix Frankfurter:

How many airlines come in over this?

William A. Blair:

Well, if Your Honor please, that’s not over the — the suggestion of our Supreme Court is that we sue the commercial airlines, but there are more planes in commercial airlines were scheduled, planes that go over our property.

They’re probably one out of six or eight — six or seven airlines there.

Felix Frankfurter:

I’m not suggesting that you haven’t got a case against the County.

I’m not remotely suggesting that, but as I get the opinion of your Court, they indicate that you have a cause of action against the airlines, whether do you call it a trespass would be because trespasses are taking at to that extent of cutting down of rights.

William A. Blair:

Yes.

Felix Frankfurter:

And the suggestion that I thought you were making is that even assuming if the airlines are liable, the County is also liable and they both as if were joined towards tortfeasors but you reject that.

William A. Blair:

Now, well there can’t be a joint — joint tortfeasors here.

You couldn’t sue — if we must sue the airlines, we have to sue each one individually that we claim damages.

They’re not acting in joint concert with each other, they’re only serving a certain purpose for which they are authorized — by which they’re authorized by this Government.

They first must get certificates of authority and convenience in order to operate and then after they do that, they have to operate pursuant to the regulations of the Civil Aeronautics Board or Federal Aviation Agency whatever it may be.

That’s —

William O. Douglas:

Suppose they would come in on under instructions from the tower that —

William A. Blair:

They all do so, if Your Honor please.

Of course, the Civil Aeronautics Board directs the flight of planes throughout the United States.

The control or the complete control of aviation or air commerce is with the Federal Government.

And that —

Felix Frankfurter:

Well then, why don’t you sue the United States then?

William A. Blair:

Because United States is not liable for this.

There’s the —

Felix Frankfurter:

But if — you just answer Justice Douglas with what they had did to your damage was under the orders of the United States and you said the United States can’t give orders that takes away your property.

William A. Blair:

That is exactly right.

The United States, their position here is that they are exercising supervision and control over air commerce for the purpose of safety and for a unified control and the unified handling of planes.

You can imagine what it would be if that weren’t so that if ever political subdivision of this — of the country which has a public airport in control in operation and in and out of the airport, there would soon big chaos in the air commerce.

Hugo L. Black:

Has the Government appeared in this case in any way?

William A. Blair:

No sir.

They have been notified of this case and were well aware of it that —

Hugo L. Black:

Who notified it?

Hugo L. Black:

Does the record show who notified them?

William A. Blair:

No sir.

I would assume that they were parties to here our property privacy needed to be parties.

This is simply a suit of rendered condemnation suit against the people, the County of Allegheny which owns and operates the airport for the benefit of the public of Allegheny County in order to that they have a major airport which fits in with the national airport.

William O. Douglas:

What is the County – it’s the county of the lessor, is it?

William A. Blair:

No sir.

The County is the owner.

That they lease a right, they entered agreements with the airlines, the right to land and take of from the airport.

Hugo L. Black:

Did I understand you to say that they have to get consent of the Government to build it?

William A. Blair:

No.

But they have since —

Hugo L. Black:

To operate it?

William A. Blair:

But since they wanted to participate in the National Airport Plan and they wanted an adequate transport — air transport facilities they have to conform to a certain regulations of the Federal Government to ensure safety.

The Federal Government’s position here is in connection with the safety in flight of planes.

Earl Warren:

They also got a subsidy, did they not?

William A. Blair:

They got a subsidy of 5 or $6 million in order to help to build this plane.

The Government gave them a subsidy and say, you’ve got to fly — you’re authorized to build the airport and to have the people and planes come in there but that as far as we need to go but we do aid you —

Felix Frankfurter:

But did I understand you to say that the flights, the height to which they went — the bonus, all were in conformity with some orders from Washington.

William A. Blair:

They all fly – they all follow a pattern of flight and —

Felix Frankfurter:

And they couldn’t — and they couldn’t deviate from that, could they?

William A. Blair:

Well, if they did, they’d be violating the air commerce, the Board’s instructions.

Felix Frankfurter:

Therefore, what they did can fairly and accurately be called conduct under authorization of Federal Government —

William A. Blair:

The – the airlines always say that they are privileged, that they are privileged to fly where they are flying and they are not only privileged but they have to fly here in order to comply with the regulations.

You understand the nearer they get to the airport, the lower they must be as they approach it, and the heavier the planes, the flatter the approach must be.

So and but — and that is for the safety in operations so that’s the reason the Government says to the County of Allegheny, (Inaudible) probably under that Act.

If you’re going to wreck this airport, you’ve got to protect that approach zone two miles out from the airport in order (Inaudible) any hazards along that approach zone and if you can’t do it by purchase of property, you have a right to condemn it.

Now to get air easements whenever it may be.

Hugo L. Black:

How many — how many miles do they have to buy?

William A. Blair:

Well that’s merely two miles at 10,000 feet.

Hugo L. Black:

That’s your — your place is that far?

William A. Blair:

No, our place is three piece of a mile about 32,00 feet sir.

Felix Frankfurter:

Mr. Blair, would you even have to explain to me the difference between the responsibility of the Government when negligent conduct by the fellow in the signal tower out here at the airport and the responsibility of the Government in authorizing indeed requiring flights under the circumstances you’ve narrated which makes those in roads upon what you deem your property rights.

William A. Blair:

One — there are one, whether it’s negligent operation, there we would have to sue the person who committed the negligence and that because he would not be performing his duties according to the requirements of law.

On the other, he’s doing something that he’s compelled to do for the benefit of the country.

And therefore, what that amounts to is if it takes our property as a public taking of our property for the public use.

Felix Frankfurter:

Well, if it’s for the benefit of the country to make these flights even lots of takings for the benefit of the country but Uncle Sam has to pay for it.

William A. Blair:

That’s right sir.

Felix Frankfurter:

And if Uncle Sam thinks it’s for the benefit of the country to make those in roads to be appreciate or to take — physically to take if you will, your property buying the duty of compensation exist.

William A. Blair:

Well, in the first place, if Your Honor please, there can’t be any blanket condemnation of air space unless there is some authority for it and there were had — there’s no act which permits the blanket condemnation that’s faced by the Federal Government in any – in any particular instance.

Felix Frankfurter:

But of course if we didn’t say you must condemn it, what the Court decided was that there is an implied taking under the Fifth Amendment and therefore compensation has to be paid.

William A. Blair:

That’s right.

Felix Frankfurter:

And why is it not true here so far as United States is concerned, as the efficient creator of this situation?

William A. Blair:

Whether the United States that the Civil Aeronautics Board does not have authority to take.

William J. Brennan, Jr.:

Well, isn’t the answer Mr. Blair that the United States did locate the airplane, the airport three miles from your property, didn’t it?

William A. Blair:

No sir.

That’s what I said in the beginning that the —

William J. Brennan, Jr.:

The County did that.

How could the United States be responsible —

William A. Blair:

All that United States says is if you erect an airport, you must do it in conformance with its safety requirements of the Federal —

William J. Brennan, Jr.:

And operate it under such and such regulations, isn’t it?

William A. Blair:

That’s right.

There is no mandate from the Federal Government for the County of Allegheny or any other political subdivision to —

William J. Brennan, Jr.:

Now if it’s the case, we have an actual Government owned —

William A. Blair:

And that’s the distinction for it.

That’s right.

William J. Brennan, Jr.:

— airport (Inaudible)

Felix Frankfurter:

But Mr. Blair, the mischief is not the location of the airport but what is the use to which it is put.

William A. Blair:

Yes sir.

Felix Frankfurter:

And as I — I have no information of it other than you give me.

As I understand it, that if the use to which it was put, the precise use was not only authorized but directed by the Government of United States.

William J. Brennan, Jr.:

They don’t have to fly airplanes there.

If they do, they must conform to these Federal Regulations.

William A. Blair:

And that’s —

William J. Brennan, Jr.:

Or orders of the Federal Government.

William A. Blair:

There’s no mandate in the Federal Government to do anything except to fly in safe way and that’s for the protection of the public and for the traveling public and the people on the ground.

Felix Frankfurter:

But is there any requirement or authorization that the United States should compel a use of an airport only under such conditions that it takes away a neighbor’s property?

It is —

William A. Blair:

No, I don’t think the United States says that the — and the owner of the airport or of any other subdivision of the State has got to take the property.

What they said here was if you need that property in order to get in, you are — must get it by – easement, taking an easement as you’re authorized to do the County of Allegha can do it by car — by purchase or condemnation whichever way they want but they have —

Felix Frankfurter:

But the Civil Aeronautics Board has made safety regulations that would’ve not disadvantaged you or taken away any of your property rights, could they?

William A. Blair:

No sir.

Not get the planes in and out of the airport.

Felix Frankfurter:

Not at all.

William A. Blair:

They have to travel in certain levels and to get out in there under this approach on two miles out.

They have start — they’re supposed no matter which direction they come from, but they’re directed to come in on East, Northeast runway on a particular day because the wind conditions or other reasons, they go out and they’re supposed to go out to the end of that two mile stretch and start to correct their approach — gradual approach into the airport and unfortunately for us, we’re nearer where they have to land —

Felix Frankfurter:

As I understand, now you’re saying that all that the Government did was to say that if you’re going to use an airport, you’ve got to use it — the only way to use the airport is under these conditions.

William A. Blair:

That’s right.

Felix Frankfurter:

And if that entails taking somebody’s property, that’s your concern and not ours.

William A. Blair:

That is correct Your Honor please.

The same as if they had said too when they grant a franchise to the airlines to operate, they say you may operate your planes but we don’t furnish you the planes but you must fly according to our requirements.

Hugo L. Black:

They go a long way towards furnishing (Inaudible), haven’t they?

William A. Blair:

[Attempt to Laughter] that may be but I don’t know of that.

Hugo L. Black:

Don’t they require the operator – is there nay way to avoid this dilemma except not to build an airport or to pay your people, or advice you to cooperate.

William A. Blair:

Well, [Attempt to Laughter] that may be the — that’s unfortunate that you understand these people and at the beginning lived in this country atmosphere out here where they were in a quiet surroundings know that they didn’t want to leave this place or to give or to surrender these properties to have the airfield there, that didn’t benefit them.

They wanted to stay there but —

William O. Douglas:

(Inaudible) of money could even be worse.

William A. Blair:

That could be. I think I —

Hugo L. Black:

They can go straight up and come straight down.

William A. Blair:

Sir?

Hugo L. Black:

They can go straight up and come straight down.

William A. Blair:

Oh, well that’s what they say.

But, I have —

Felix Frankfurter:

How do you differ this — how do you differ this kind of laws from the laws that comes to your private interest where no road is shut or road is closed or the road is open and it means depreciation in property sometimes —

William A. Blair:

Well then —

Felix Frankfurter:

— a very large percentage?

William A. Blair:

Well that’s a little different, if Your Honor please.

Well in our brief, I cited in a possible in a very awkward way an illustration of what involved here that I suppose if they erected a library or some other building near a superhighway or a regular highway and in order to get to and from that highway to that building, they had to travel over land and it build a road on the land for which they haven’t paid.

And it’s the same thing exactly as there so you wouldn’t have to sue the bus lines or the airlines or the taxi drivers in order to recover from them because they’re going — ng licensed operators and the public too that in order to get damages from them for the benefit of this public building.

Felix Frankfurter:

But it’s the — it’s the commonwealth, if your commonwealth or your County leases a tract of land to an approach to another building would necessarily the lessor of the State, the County be liable or trucks to go over somebody else’s property but was merely the lessee.

William A. Blair:

Well.

Felix Frankfurter:

What’s — what’s the difficulty of your Supreme Court with this case is that all the damage was done was done not by the County, but by those they gave these rights to fly over your land.

William A. Blair:

Well, that’s what our Supreme Court says.

Felix Frankfurter:

Yes.

William A. Blair:

But that is not what we say.

Felix Frankfurter:

And you say that this County is liable because they gave the airlines opportunity to inflict damage.

William A. Blair:

Not in (Voice Overlap) and that the County has the interest of having the airlines serve the County.

That wants to be a modern County with modern facilities so that they can — their people can travel to and forth by in the modern way of travel and if they want undertake it, there’s a public need that they assume that there was a public need and they had to take public action which was by acquiring a land and erecting the building but they didn’t take enough public action by acquiring the easement necessary to get in and out of this airport and they located the airport where they thought it was proper to be located and they locate it for one thing and that’s for the purpose of serving the public of Allegheny County.

Thank you.

Earl Warren:

Mr. Louik.

Maurice Louik:

If the Court please.

What the Pennsylvania Supreme Court said in this case was that they determined only one legal issue.

Assuming that the plaintiff’s property has been damaged, they determined that the County was not the efficient cause of that particular injury and that determination was based upon findings that were made by the Board of Viewers.

I’d like to read this because they are just four short sentences, they appear on page 2 of my brief because that was the basis upon which we filed exceptions to the Board of Viewers award and the matter came up before the Court of Common Pleas and our Supreme Court.

The findings are number 29, 30, 31 and 32 and they read as follows.

29, there is no evidence of any control exercised over any aircraft by the County of Allegheny.

30, all flights into and out of the Greater Pittsburgh Airport are regulated by the Civil Aeronautics Administration of the United States of America.

31, no flights of aircraft had been shown to be in violation of any regulations of the Civil Aeronautics Administration.

And 32, no flights were shown to be lower than necessary for a safe landing or a safe taking off.

Now, what we —

Potter Stewart:

Mr. Louik, if those four criteria mean that the County for these four reasons didn’t need to acquire the easement of this man’s property, wouldn’t they equally stand for the proposition that the county didn’t even need to acquire the land on which the runway were.

Potter Stewart:

These are going to be the controller.

Maurice Louik:

Your Honor, the reason the Supreme Court, our the Pennsylvania Supreme Court although there were four findings here actually based their conclusion only on 29 and 30 is so far as the County’s liability.

They did not accept our contention with respect to 31 and 32 which has to do with immunity of lights as such but —

Potter Stewart:

Well, but my point of view is that — let’s just then confine it to 29 and 30.

Now I suppose if that’s true and if that has anything to do with whether the County should’ve condemned this easement and whether or not it owes money to this petitioner for taking his property, if 29 and 30 are the answer to that, why are 29 and 30 — why don’t — and then they say well a County didn’t need to acquire anything.

Maurice Louik:

Now well, that —

Potter Stewart:

Even the actual land on which the airport is located.

You don’t seem to answer the question.

Maurice Louik:

The property on which the airport is located is actually physically used by the County.

We have constructed buildings on that property.

We have constructed runways on that property.

Now, in the drafting of our master plan which is part of the preparation for the airport, we have taken, actually taken, appropriated and paid for certain number of acres of land upon which we construct our facilities.

We then show an approach zone and this must all be approved by the Federal Government, an approach zone that extends out — that extends some 10,000 feet beyond the end of the runway and fans out from a width of 250 feet to — or from 500 feet to 2,500 feet.

And that is the approach zone that the airlines are required to operate within the regulations of the Civil Aeronautics Administration.

The position of the plaintiff in this case was, and the reason that was rejected by the Pennsylvania Supreme Court was that the drafting of that master plan, constituted a taking of the plaintiff’s property.

Now, if it constituted a taking of the plaintiff’s property merely by drafting a plan and showing an approach zone to that extent, then the County would really have taken and I use that in quotes, all of the property extending 10,000 feet beyond the end of the runway and of a width going from 500 to 2,500 feet.

Now we’ve had no control over these planes.

Hugo L. Black:

Why do you limit it to 2,500 feet?

Why wouldn’t it be out as far as there was any property that could have injured no one by the flight of the airplane?

Maurice Louik:

Well, the reason I say 2,500 feet is because that the tightest contention is that we have taken his property by reason of the fact that he is in the approach zone limiting to the allegations in this case.

Hugo L. Black:

In the own — where the constant passage of the plane annoying so much that the amounts to taking within the cause of case.

Why do you — why could that be limited to 2,500 feet?

Maurice Louik:

On the basis of the plaintiff’s complaint that because he is in the approach zone, and I’m saying if that is true, then we have taken everything in the approach zone which extends up to 2,500 feet.

Hugo L. Black:

How far could you get out of Pittsburgh and why could you put one outside the Pittsburgh, it would save you taking all the property within two to three miles by reason of the noise.

Maurice Louik:

Well, you couldn’t, Your Honor.

There would be no place in an area like Allegheny County where you could take property, where you could build an airport, where you wouldn’t have planes coming in at some altitude lower than 500 feet or a thousand feet as the plaintiff has indicated here in order to get into the airport.

Now —

Earl Warren:

Doesn’t a zoning ordinance —

Maurice Louik:

Pardon me.

Earl Warren:

Do you have this — does the County have any zoning ordinance with connection with this airport?

Maurice Louik:

Yes, Mr. Chief Justice, we do have a zoning —

Earl Warren:

What is the provision with regard to this property and I’m thinking of this.

Suppose that — suppose the owner of this property decided to put a 10-storey building right at the end of your runway on his own property that he’s now claims you have taken.

What would the situation be?

Maurice Louik:

Well, we have a zoning ordinance which of course is not involved in this case, but it is a zoning ordinance which prohibits certain heights of buildings and certain types of structures with a minimum — I believe that’s 25 feet that you can build anything that’s 25 feet above the ground.

But, there are limitations for future use of any of this property which would interfere with the use of the airport.

Earl Warren:

But the landing of the airplanes and then taking off.

Maurice Louik:

That is correct.

Earl Warren:

Yes.

Maurice Louik:

Now, the basis of this case —

Earl Warren:

And the County to that affect, to that extent has affected this — the use of this land, has it not?

Maurice Louik:

As any community was affecting use of land by reason of any zoning ordinance.

There is no attack here on our zoning ordinance Your Honor.

Any type of zoning ordinance would of course affect the future use of any land and the only question that ever comes up on zoning is whether if it’s a reasonable ordinance and that is not an issue in this case.

Felix Frankfurter:

And that has — whether it’s reasonable not, has nothing to do with the ownership of property of the governmental unit, does it?

Maurice Louik:

That is correct.

Now the position of the County in this case is that the acts of the County do not constitute a taking or any injury to the plaintiff’s property.

Secondly —

Hugo L. Black:

If it is then — why if it is the taking by somebody, either by the Government, or the County or somebody here, to me it is a taking, why would the County (Inaudible) taking?

Maurice Louik:

Well, assuming that it is a taking, —

Hugo L. Black:

But it wasn’t — do you have to assume in under the Causby case?

Maurice Louik:

Your Honor, we have to assume that in this sense.

The Causby case uses the word — uses the term taking and finds that the Government was liable, “the taking” of that property.

The reason given in the Causby case was that there were continuous low flights of such a type that interfered, substantially interfered with the use of the plaintiff’s property.

That is in effect a tort but, the Court —

Hugo L. Black:

I think the dissent insisted on something like this, but —

Maurice Louik:

Yes.

Hugo L. Black:

— it was in —

Maurice Louik:

I think in your dissent, Your Honor, you pointed out exactly the problem that we have now.

But in that case, the Government was the efficient cause of the damage or whatever it is, tort or taking as this Court said taking, but it was the efficient cause of the damage because the Government operated the flights.

Maurice Louik:

Now, it is not correct Your Honor as it was stated with respect to the Causby case that there — that that was a Federal Airport.

In the Causby case —

William J. Brennan, Jr.:

It was leased, was it?

Maurice Louik:

It was leased from a municipality.

The municipality in that case was in exactly the same position as Allegheny County is.

There were military planes, and there were commercial planes as appears from the record in the Causby case.

In our case too, there are military planes, there are commercial planes, there are private planes, but the entity that was held liable in the Causby case was the operator of the aircraft and in every case in which there has been liability imposed by reason of flights of aircraft whether the term was used taking or tort as we point out in our brief, the entity that was held liable was the entity that operated the aircraft not the entity that merely set up the airport into which and out of which these aircrafts could fly.

Hugo L. Black:

Was it not also the entity that which is responsible for the rules that required the low flying.

Maurice Louik:

In the Causby case also, the Court — this Court did not indicate the basis upon which the decision was founded in that whether the United States was held liable by reason of the fact that it promulgated the regulations or by reason of the fact that it operated the aircraft, but those two facts did remain or do remain in that case.

The United States Government did not own — certainly was not held liable because it owned and operated as an airport.

It was liable either because it — or made the regulations or because it flew the aircraft, but as I read the opinion, the basis of it was that the Government was the efficient cause because it operated the aircraft because you say in your opinion that the taking took place by the reason of the continuous low flying of these aircrafts.

Felix Frankfurter:

But what do you say to Mr. Blair’s suggestion that your Supreme Court relegated the petitioner here or (Inaudible) be the petitioner to a suit against the airlines but that perhaps his choice that Mr. Blair as the Court gives his client that you, whom you will sue and for what.

What do say to that?

That the alternative offer by the Supreme Court of Pennsylvania is no alternative.

Maurice Louik:

Well, Your Honor please and I answer that in this way.

I do not think that this — that a constitutional question is raised because of a possibility that the remedy might be illusory.

As a matter of fact, the remedy is not illusory and the remedy has been used in other cases.

There have been cases against the United States Government in tort for the flight of aircraft.

There have been cases — there is the case of the City of Newark where the Court — in the District Court of New York where the — or New Jersey where the Court went into the question of tort claim.

The only thing that they determined in that case that there wasn’t sufficient evidence.

Now, whether or not, that remedy is illusory will depend if and when the plaintiff uses that remedy.

Now the plaintiff has no constitutional right to a particular remedy whether it’d be eminent domain or trespass or injunction.

He does have as we contend and as the Supreme Court has said, he has other available remedies.

Although our Supreme Court has said is that the County of Allegheny is not liable in eminent domain proceedings.

This is not an act of taking by the County.

Now, in this very case, this plaintiff now has pending in the Pennsylvania Courts an action for an injunction and the cases that are cited in our brief are called the Gardner cases are really this case but they’re under another name because there were five different plaintiffs.

In the last Gardner case, the Court, the Pennsylvania Supreme Court merely stayed an injunction proceeding against the airlines and against the County to compel or tell the plaintiff to proceed in some other manner to see whether there would be a remedy.

And the Supreme Court at that time stated that whether or not the other remedy was in trespass or in eminent domain for a taking of an easement or an eminent domain for a taking of a fee would depend upon the particular facts that he could prove.

Now, they have tried — they have taken one position.

They have attempted an eminent domain proceeding.

Maurice Louik:

In that eminent domain proceedings, the Court held that there was no control over these flights by the County, that they were not regulated by the County, that they were not flown by the County and that the master plan in designing of an agreement with the Federal Government did not constitute an Act to eminent domain under the laws of Pennsylvania.

Now, the Court did not deny them due process because they have indicated that there are may be other remedies that there are other remedies.

In fact, there is another remedy which the Court has not even indicated in its opinion and that is in a remedy under the administrative agencies which was again in the Newark against the Eastern Airlines case, the Court said that there were remedies provided for in the Federal Aviation Act for a property who claims that his property has been damaged by reason of the pattern, flight pattern set up by the Federal Government, set up by these agencies.

This is not a matter for the courts to determine what is a proper flight pattern is and because these are very technical matters that the United States has set up an agency with a provision in the act where any property owner who has a complaint may go to that agency, complain about the flight pattern, perhaps have it changed and that remedy is also subject to appeal to the Court of Appeals and to this Court.

Felix Frankfurter:

Did I understand Mr. Blair to say that this is unnecessary flight pattern that you’re going to have any flight there at all?

Maurice Louik:

Well —

Felix Frankfurter:

You have to fly that low with reference to his property, — with reference to his property, the lowness of the flight is inevitable and therefore damaging.

Maurice Louik:

Well, certainly, at one stage of the flight of the flight is going to be low.

The Board of Viewers in this case made some findings at our request that these flights were at indeterminate altitudes.

Now, even if the flights were low, the point is, Your Honor, that these flights are controlled and determined by the Federal Government.

We have as a county no right whatsoever to control these flights to regulate —

Felix Frankfurter:

But that’s something — I don’t think that answers the claim that if they have to be necessarily low of course to interfere with the property interest of land owners, you can’t fly otherwise but if you do fly, you have to pay for the necessary damage for your necessary flight.

You don’t have to fly at all.

If you fly, you can’t do it at the expense of landowners adjoining.

Maurice Louik:

Well, Your Honor, there are some other very perplexing problems on this — in this matter but which are not in this case at this time and that is the whole problem of what constitutes navigable airspace and what the Federal Government has done by saying that there is an absolute freedom of transit in the navigable airspace of the United States and whether the United States by reason of the passage of that act has taken property or whether that property, whether this was a property right that has never belonged to a property owner has always been on the public domain.

Those are all perplexing problems that have to do with this whole question of flight but I say in this case, they do not come out at this time because we haven’t reached that stage of the case.

Now, if in when such a case should arise and perhaps in this case where the question would come up as to whether the airlines are flying within the public domain or whether the United States has created a public domain out of property which was formerly private property or whether they never was any private property will be in issue before this Court then the proper case comes up but that is not the case that we have today.

Hugo L. Black:

I do not quite understand that.

May I ask you why under the Causby case, accepting, this should not be considered as though the County that built a project, initiation of running of automobiles and trucks, an inevitable result of which would be that they’ll going to run over this man’s land with those trucks.

What’s the difference under the Causby case with its treatment of the — of the right of the man for his easement and that right of the man to have this land free from running of trucks over this?

Would the County be liable under those circumstances?

Maurice Louik:

Well, the County would not be liable if we built a road or we build a road and the road was used and caused damage to adjoining property.

But —

Hugo L. Black:

Well, suppose it got over the land.

Maurice Louik:

Well, now, when it goes over the land, the question comes up as to whether there is ownership in that airspace in the plaintiff, in the property owner for which he is entitled to any damage.

Hugo L. Black:

Has any Court treated it just that way?

Didn’t it do so in the Causby case?

Maurice Louik:

Well, in the Causby case, they said that there was a taking by reason of the flight.

Then the Causby case went further and said that if that agency, referring to the CAA, have prescribed 83 feet as the minimum safe altitude, then we would have presented the question of the validity of the regulation, but nothing of the sort has been done.

Basically, this Court held in the Causby case that the planes were not flying within “the navigable airspace” and that is why I say that that is a problem which will have to be decided but not in this case as to whether they are flying within a navigable airspace.

Maurice Louik:

Now, we took the position before our Supreme Court —

Hugo L. Black:

Well, you have to assume do you not if they’re flying in that space causes him the same kind of annoyance that the people in the Causby case was caused by the flying of the planes there.

That’s in the case, doesn’t it?

Maurice Louik:

Yes, Your Honor that’s in the case but our position which was not adopted by the Pennsylvania Supreme Court in this case although it was followed by the Pennsylvania Supreme Court in the Gardner case was that when these planes were flying over the plaintiff’s property, they where flying within the navigable airspace.

If they were flying within a navigable airspace, they were flying within airspace which did not belong to the plaintiff.

It was airspace which —

Hugo L. Black:

I think the argument such that were rejected, was it not, in the Causby case?

Maurice Louik:

No.

As they pointed out, the Causby case said that there — that it was in that case not within the navigable airspace but said that if that agency had prescribed 83 feet as the minimum safe altitude, then they would have that question before it as to the validity of that regulation.

There had been changes in the regulations since the Causby case.

There had been changes in the statute and now, we contend, we did contend before our Supreme Court that I again say that that our Supreme Court didn’t actually pass on that in this case but our basic position was that the planes were flying within the navigable airspace, therefore, immune.

We — if —

Potter Stewart:

There must — there must be a limit so that the Federal Government couldn’t simply by legislative or administrative fiat say that the — all the airspace of the United States more than 10 feet off the ground is — belongs to the Federal Government, is that it?

Maurice Louik:

Well, I don’t think —

Potter Stewart:

— (Inaudible) down eventually it’s going to land.

It’s got to get down that low.

Maurice Louik:

Whether or not the Government is liable, it’s not a position that I have to take Your Honor.

My position is that the counties are liable.

When that case comes up against the Federal Government, there would be a question as to whether the United States has taken something which belong to the property owners of this country or whether it has not taken anything but has merely declared that a navigable airspace did — has made the declaration that what always did belong to the United States, really does belong to the United States the same as the navigable waters perhaps, but again this is not a point in our case at this time.

Now I’d like — from the point of view —

Potter Stewart:

I thought the change in the regulations to redefine navigable airspace was a point in your case.

Maurice Louik:

Well, our Supreme Court made at this point, they said that they were not — that our arguments had the rationale of reality but they couldn’t accept it by reason of the Causby case and then they pointed out that there have been changes since the Causby case but their decision rested on this other matter that the acts complied of, that is the drafting of master plan, drawing of grant agreement, did not constitute and enacted them in the domain by the County but that the plaintiff had other remedies.

Potter Stewart:

But you’re here defending the judgment and you’re entitled to defend it on any basis you want to either on the grounds upon which the Supreme Court of Pennsylvania relied or any other grounds.

Maurice Louik:

We have so presented that in our brief.

Potter Stewart:

The change in the regulations of defining navigable airspace certainly would be relevant consideration.

Maurice Louik:

— and the decisions of the lower courts in connection with that.

I would like to point out one thing Your Honor if I may before I close and that is with respect to a municipal operator of the — if this is held to be a taking, as a matter of law by the County, then you place an intolerable and unreasonable burden on every municipal airport operator because, it has no control over what it takes.

We can build an airport and we can make it comply with all the regulations like we did in this case, we took 1,500 acres.

There were at that time certain regulations in effect by the Federal Government.

There were certain types of planes.

Maurice Louik:

Now let us assume at the time that we take, we build this airport and take all of this land, the planes fly at such an altitude that when they get half a mile or a mile up or off the runway, they are at a height of 500 or 700 feet.

Without our consent and without our knowledge, a regulation could be changed or a new type of aircraft could be certificated and has been done in this case because at the time we started operations, there were no jet aircraft and we suddenly find that by reason of the Federal Government’s action, these planes do not reach a — let’s take it any figure — 500 feet until they get three miles out off the airport.

And we find it as the cabbie we have suddenly “taken” perhaps 500 other pieces of property.

Now, that place is —

Potter Stewart:

The same it would be true if you got new airplanes that needed a thousand more feet of landing strip.

You have to acquire more property.

Maurice Louik:

Well, we would — but then that would be an act of the County.

We would go — we would take that property or if we didn’t provide that landing space, the planes could not land there.

But by a change in regulation or a change of certification by the Federal Government, we would automatically if this was a taking find ourselves having taken property which we had no knowledge that we took.

Now, this would place an intolerable burden on any municipal operator because we would never know what these airports would cost us.

Hugo L. Black:

I’m a little surprised that you have not taken a little bit difference with the opinion to this effect.

Maybe it would be wrong.

Airplanes fly on the authority of the Federal Government.

That’s the supreme law of the land.

Heights have been fixed to which they can fly.

The County had merely taken advantage of the opportunity to build an airport for the purpose of the planes flying in a legal method.

Under the Constitution this provided that we should be just compensation but that does not mean it should be imposed on everybody even though through acting perfectly lawfully to the conduct of their affair.

But that it shall be done, compensation should be born by the Government, whatever Government that is, that is basically responsible for the taking.

That may not be a good argument but it would seem to me to be in this country, the aviation business is peculiarly a part of the National Government’s plan of operations today.

It has to be — perhaps nearly all of these planes fly from one part of the country to another.

Maurice Louik:

Your Honor, I will say that we have touched upon that in our brief.

I have not argued it here because we have tried to limit our argument to the point that as we see the basic issue as to whether or not the County is liable on the basis of this particular fact and not on the general proposition —

Hugo L. Black:

There’s allegation here, is there, that the County as these things have operated in any manner, it’s not perfectly legal under the law which is the supreme law of the land that of the United States Government in this respect.

Maurice Louik:

As I’ve read these findings, the findings arguably that they operated strictly in accordance with the Federal —

Felix Frankfurter:

Your argument gets down to the colloquial who done it.

Maurice Louik:

And that is right Your Honor.

And I —

William A. Blair:

Before I begin Your Honor, if the Court please, we have a request permission to file supplemental citation at your brief.

These are the three articles in the law journals which came out to or which came out since we were last brief for this file here and the all three passed upon the discuss the Briggs versus Allegheny County case and all the —

Earl Warren:

You may do so and if there are any others, you may file them, Mr.

William A. Blair:

And the all three disagree with the opinion of the Supreme Court of Pennsylvania in this case.

William J. Brennan, Jr.:

But I suppose you wouldn’t have filed them otherwise.

William A. Blair:

Sir?

William J. Brennan, Jr.:

You wouldn’t have filed them otherwise, would you?

William A. Blair:

Well, that’s possible.

Nevertheless, if Your Honor please, I want to correct just several things.

First, the Supreme Court of Pennsylvania says according to Mr. Louik at the making of the plan, the master plan which is the basis of our statement that there is condemnation of our property or the acquisition of more property, that is not true.

Our case was brought strictly within the rule in the classification which you said flights over private land are not a taking unless they are so low and so frequent and that is to be direct and immediate interference with the enjoinment and use of the land and that’s what happened here.

Not the land over the plan or that the airport or the approach zones, only that when that the use of that land is with interference with us and the actual damage and contrary to what Mr. Louik says that this is a learned narrow case, it’s only there has to be the actual damage even under the Causby case before a claimant can recover and that’s what we say happened here and Ackerman versus the Court of Seattle was a similar case to ours in which the Supreme Court of Washington said a liability was with the port which own the airport.