Brown v. United States

30 Fed. Cl. 23, 1993 U.S. Claims LEXIS 187, 1993 WL 449254
United States Court of Federal Claims·Decided November 4, 1993·No. No. 92-102L·Published·Cited by 4 cases

Opinion

MEMORANDUM OF DECISION

HARKINS, Senior Judge:

At the close of argument, a bench ruling was made. The reasons for the ruling were stated upon the record.

Plaintiffs’ claim is for compensation for a Fifth Amendment taking of property on a recreational ranch by reason of “touch and go” operations at an Air Force auxiliary airfield (Wizard), which is located approximately 25 miles southeast of Laughlin Air Force Base, Del Rio, Texas. Wizard was designed specifically for “touch and go” training by pilots flying T-37 jet aircraft, a small two-seat, two-engine training jet; construction was completed and operations began in January 1991. There is no dispute that overflights are frequent and low (below 500' AGL) in connection with takeoff and landing training at Wizard and that it is being done on a permanent basis. Plaintiffs’ property totals 6,858 acres. The low level overflights are directly over a portion of plaintiffs’ land that contains at least 100 acres. Touch and go maneuvers at Wizard are conducted primarily on weekdays during daylight hours; all overflights, other than touch and go training, of plaintiffs’ ranch are at altitudes above 500' AGL. The highest and best use of plaintiffs’ land is considered to be “recreational ranching.” Plaintiffs do not regularly live at the ranch, but visit it up to 3 times a month. The land is used primarily to raise cattle and for recreational hunting by individuals who pay a fee to plaintiffs.

Plaintiffs claim there has been a substantial intrusion of the airspace immediately above the surface of their property so as to constitute a taking of their interest and that the gravity of the intrusion is measured by the effect on the market value of the property. Plaintiffs’ claim falls within the avigation easement concept formulated by the Supreme Court in the landmark case of United States v. Causby, 328 U.S. 256, 66 S.Ct. 1062, 90 L.Ed. 1206 (1946). The Causby case established the rule that flights by Government owned aircraft are a taking under the Fifth Amendment of an easement of the overhead airspace if such flights are so low and so frequent as to be a direct and immediate interference with the use and enjoyment of the land. Lacey v. United States, 595 F.2d 614, 615, 219 Ct.Cl. 551 (1979).

Summary judgment is appropriate “if the pleadings, depositions, answers to interrogatories, and admissions on file, together with the affidavits, if any, show that there is no genuine issue as to any material fact, and that the moving party is entitled to a judgment as a matter of law.” RCFC 56(c). Disposition of a taking claim by summary judgment procedures is infrequent.

The question of whether a taking has occurred is fact-intensive and a complete record is required, normally by means of a trial. The factual nature of taking cases argues against precipitous grants of summary judgment. Yuba Goldfields, Inc. v. [26]*26United States, 723 F.2d 884, 887 (Fed.Cir.1983). Summary judgment is an integral part of the rules, however, and in an appropriate case is not a disfavored procedural short cut. Sweats Fashions, Inc. v. Pannill Knitting Co., 833 F.2d 1560, 1562 (Fed.Cir.1987). One of the principal purposes of the summary judgment rule is to isolate and dispose of factually unsupported claims or defenses. Celotex Corp. v. Catrett, 477 U.S. 317, 323-24, 106 S.Ct. 2548, 2552-53, 91 L.Ed.2d 265 (1986). The summary judgment procedure serves judicial economy, and saves the expense and time of a full trial when it is unnecessary. When the material facts are adequately developed in the motion papers, a full trial is useless. “Useless” in this context means that more evidence than is already available in connection with the motion for summary judgment could not reasonably be expected to change the result. Pure Gold, Inc. v. Syntex (U.S.A), Inc., 739 F.2d 624, 626 (Fed.Cir.1984); United States Steel Corp. v. Vasco Metals Corp., 394 F.2d 1009, 1011 (C.C.P.A.1968).

The fact that there are cross-motions for summary judgment does not mean that the court must grant judgment as a matter of law for one side or the other. Summary judgment is properly granted only when there is no genuine issue of material fact. Each party’s motion must be evaluated on its own merits and care must be taken to draw all reasonable inferences against the party whose motion is under consideration. “The party against which summary judgment is granted is not estopped by the filing of its own motion for summary judgment from asserting on review that there are genuine issues of material fact which prevent entry of judgment as matter of law against it.” Mingus Constructors, Inc. v. United States, 812 F.2d 1387, 1391 (Fed.Cir.1987). A material fact is one which will make a difference in the result of a case. See Curtis v. United States, 168 F.Supp. 213, 216, 144 Ct.Cl. 194 (1958), cert. denied, 361 U.S. 843, 80 S.Ct. 94, 4 L.Ed.2d 81 (1959). The substantive law identifies the facts that are material. “[T]he judge’s function is not himself to weigh the evidence and determine the truth of the matter but to determine whether there is a genuine issue for trial.” Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 249, 106 S.Ct. 2505, 2510, 91 L.Ed.2d 202 (1986). Doubts concerning factual issues are to be resolved in favor of the nonmovant. United States v. Diebold, Inc., 369 U.S. 654, 655, 82 S.Ct. 993, 993, 8 L.Ed.2d. 176 (1962).

The issue is whether the invasions of plaintiffs’ airspace amount to a Fifth Amendment taking. The facts material to a taking of plaintiffs’ property, involve the showing that (1) there were frequent and low flights by Air Force planes over plaintiffs’ property, and (2) such overflights resulted in a substantial interference in plaintiffs’ use and enjoyment of their property. Examination of the parties’ respective proposed findings of uncontroverted fact and statements of genuine issues shows that although many proposed findings are disputed, such disputes involve matters not material, or are legal conclusions, or are not factual. There is no genuine issue as to any fact that is material to the showing of a taking of plaintiff’s property. On the basis of facts established in the motion papers, and in argument by counsel, disposition by summary judgment procedures is appropriate.

Plaintiffs’ responses to defendant’s requests for admission and defendant’s interrogatories during discovery establish that plaintiffs continue to have use of their land for raising cattle and for hunting. The facts show that the ranch is simply less enjoyable than it was, or is less desirable than it was before the Air Force commenced operations at Wizard. The motion papers do not show circumstances that constitute substantial interference with the use and enjoyment of plaintiffs’ land.

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Brown v. United States, 30 Fed. Cl. 23, 1993 U.S. Claims LEXIS 187, 1993 WL 449254 (uscfc 1993).

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