Davis v. United States

164 Ct. Cl. 612, 1964 U.S. Ct. Cl. LEXIS 57, 1964 WL 8679
CourtUnited States Court of Claims
DecidedFebruary 14, 1964
DocketNo. 179-59
StatusPublished
Cited by31 cases

This text of 164 Ct. Cl. 612 (Davis v. United States) is published on Counsel Stack Legal Research, covering United States Court of Claims primary law. Counsel Stack provides free access to over 12 million legal documents including statutes, case law, regulations, and constitutions.

Bluebook
Davis v. United States, 164 Ct. Cl. 612, 1964 U.S. Ct. Cl. LEXIS 57, 1964 WL 8679 (cc 1964).

Opinion

Davis, Judge,

delivered the opinion of the court:

This action involves thirty-two tracts of land2 claimed to have been invaded by overflights of Government aircraft which appropriated easements of flight for which just compensation must be paid. The Trial Commissioner has made extensive findings and the plaintiffs have taken no exception to them.3 The Government admits a taking with respect to some of the tracts,4 but it hotly disputes that this is true of the others; it challenges, also, the Trial Commissioner’s [614]*614findings on diminution of value. The suit has been tried under the legal standard that a compensable taking occurs when there are regular and frequent overflights of aircraft, of the types in this case, at altitudes of less than 500 feet, which cause damage to the owners of land. See United States v. Causby, 328 U.S. 256, 263-64 (1946); Aaron v. United States, 160 Ct. Cl. 295, 300, 311 F. 2d 798, 801 (1963). See, generally, cases cited in Jensen v. United States, 158 Ct. Cl. 333, 337 n. 6, 305 F. 2d 444, 446, n. 6 (1962).

Clinton-Sherman Air Force Base is in Washita County, Oklahoma; the lands involved are located at the north and south ends of the Base’s single runway. Originally a naval air training station, the field was deactivated at the end of World War II. In later years, its single north-south runway was lengthened to accommodate large, heavy jet aircraft. It has since been operated as a base for Strategic Air Command B-52 jet bombers, KC-135 jet tankers, and supporting units; it is utilized also by nonjet military aircraft. The first jet flights were begun in 1958; in that year and the next, flights ranged from four to fifty per month. Thereafter, the number of flights increased to an average of 275 per month. Apart from the operations of these giant multi jet aircraft, there were practice flights of C-124 piston-driven planes and other non jets which used the field for training purposes. In 1960, the air traffic, jet and nonjet, ranged from 1,178 to 2,362 operations per month (these figures include normal landings and take-offs as well as practice maneuvers).

Depending on the wind, normal landings and take-offs will proceed either to the north or to the south (the direction of the runway). Practice operations are of three general types. There is, first, the maneuver known as “touch-and-go”: the aircraft approaches for a normal landing, then, after touching the runway and while still rolling, power is reapplied and the aircraft takes off, circles the field to the west and then repeats the maneuver. After 1959, this procedure was discontinued for the B-52 and KC-135, but it still applies to the C-124. Second, there is the low approach which is like “touch-and-go” except that the plane does not [615]*615actually set down on the field. In the third maneuver, the minimum-interval take-off, three jet bombers or tankers take off at very short intervals — fifteen seconds — and one flies directly ahead while the aircraft that follow, to avoid jet wash, fly to the east; the second plane goes 10 degrees to the east and the third 20 degrees to the east. Practice low approaches occur rather frequently (two or three times a week); minimum-interval take-offs are used from time to time.

To assist in the supervision of landing operations, a radar ground control approach system (GCA) has been set up. It is utilized in approximately 35% of all landings and 90-95% of the landings of the multi jet aircraft. The flight path established by GCA runs upward at an angle of 2.5 degrees over the projected centerline of the runway from a point 750 feet before the end of the runway. Below this imaginary line is another, the lower safety limit, which runs at specified distances beneath the GCA flight path. When an aircraft varies from the flight path, as detected by radar, ground instructions are relayed to the pilot so that he may correct his approach;5 when the aircraft encroaches upon the lower safety limit, a missed-approach is directed. The pilot, himself, controls the final landing approach except, of course, when field personnel order him not to land.

At each end of the runway is a 1000 foot clear zone where there are no structures, a safety area upon which aircraft do not land. A fan-shaped clearance easement area, or approach zone, begins at the end of the clear zone and extends for 5,000 feet; at its outward limit, it is approximately 3,250 feet wide.' Over this area, the Government has acquired an easement which gives it the right to remove structures and vegetation above the glide angle plane (another imaginary line rising to a height of 200 feet). This easement is intended to insure that visibility remain unobstructed above the glide angle plane.

[616]*616Plaintiffs’ lands lie in the vicinity of the Base at the north or south ends of the runway. Many of the tracts are wholly or partially within the approach zone,6 others are within a half-mile of the projected centerline of the runway, either to the east or to the west. The relative position of each of the 32 tracts is set forth in finding 4.

The Trial Commissioner has found that permanent easements of flight have been taken with respect to all but five of the tracts (see footnote 3, supra) because of the overflights of jet and non jet aircraft in taking off and landing at altitudes below 500 feet. As a result of these flights there are the usual disturbances. Plaintiffs complain, and the Commissioner has found, that the noise is so loud that it makes conversation impossible; television reception and telephonic communications are interrupted; when the aircraft fly overhead, the structures on the land rattle and vibrate and certain people become terrified (especially children and visitors); particularly disturbing are the practice operations which proceed continuously for rather long intervals. The decrease in market value found by the Commissioner for each of the tracts is set forth in finding 17. Since plaintiffs do not challenge these figures, we need consider only whether they are too high, not whether they give inadequate compensation. Accordingly, if the findings withstand defendant’s exceptions, the plaintiffs will recover the amounts determined by the Commissioner.

In this, as in all cases in which a Commissioner has carefully weighed conflicting evidence, the burden of sustaining exceptions to the findings is far from slight. We start with the double directive that due regard must be given to the Commissioner’s opportunity to judge the credibility of the witnesses and that his factual findings “will be presumed to be correct.” Rule 48. That presumption is dissipated only [617]*617by a strong affirmative showing. Where, as often happens, what appears to be a sound objection to a finding is answered by an equally sound explanation in support of it, the presumption will carry the day. Where the specific testimony of witnesses, believed by the trier-of-fact, is countered only by the advocate’s theoretical arguments which may or may not be correct, we must ordinarily accept the trier’s evaluation. The same is true where the Commissioner has preferred one witness to an event (or set of witnesses) over another. Stronger assaults must be launched before the recommended findings can be overthrown. This is not to abdicate the court’s function as the ultimate finder of the facts.

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Bluebook (online)
164 Ct. Cl. 612, 1964 U.S. Ct. Cl. LEXIS 57, 1964 WL 8679, Counsel Stack Legal Research, https://law.counselstack.com/opinion/davis-v-united-states-cc-1964.