by: Patrick A. Randolph, Jr.
Professor of Law
UMKC School of Law
randolphp@umkc.edu

CONSTITUTIONAL LAW; TAKINGS; PHYSICAL TAKINGS: In an inverse condemnation case involving an alleged taking of residential property due to noise, vibration and pollutants from an airport runway extension, it is not necessary to allege a direct overflight. Jackson v. Metropolitan Knoxville Airport Auth., 922 S.W.2d 860 (Tenn. 1996).

The U. S. Supreme Court has so far refused to hold expressly that noise impacts that do not result from direct overflights in the airspace of the landowner are actionable as takings. They may be "nuisances" of course, but tort injury doth not a taking make. And government often is immune from tort liability anyway.

Some state law cases have upheld takings claims for noise impacts from airports, even where there is no overflight, but in many of these cases the state constitutional provision permitted inverse condemnation damages for "taking or damaging" real property. Tennessee does not have such a provision. But the court relied heavily on the decision of the Oregon Supreme Court in Thornberg v. Port of Portland, 415 P.2d 750 (Or. 1966), which applied a constitutional provision the court here describes as "identical" to Tennessee's and found an inverse condemnation for overflights of adjacent land.

The Supreme Court found it nonsensical to deny recovery to a landowner solely on the basis of "whether the wing tip of the aircraft passes through some fraction of an inch of the airspace directly above the plaintiff's land." However, the aggrieved landowner must still allege a direct and substantial interference that is repeated and peculiarly affects the property at issue. In the instant case, the plaintiffs alleged that the airport authority performed a study showing that their property would be rendered incompatible with residential use as a result of the runway extension.

Quoting from a Minnesota decision, the court held that the proper test of how severe the impact must be is as follows:

"[An proper standard] is one which would `give relief to any property owner who can show a direct and substantial invasion of his property rights of such a magnitdue he is deprived of the practical enjoyment of the property and that such invasion results in a definite and measurable diminution of the market value of his property.'" Quoting from Alevizos v. Metropolitan Airports Commission of Minneapolis and St. Paul, 216 N.W.2d 65, 662 (Minn. 1974)

Note: The standard requiring definite and measurable diminution of market value will be met in any case where there is some deprivation of practical enjoyment of the property. But is it necessary that there be a total deprivation of use (or at least of "investment backed expectation" of use) ? Certainly far less that total deprivation could still result in a substantial reduction in market value. Was the Tennessee court deliberately vague, or only careless in its language in stating the first prong of the test?

Comment: Notwithstanding the fact that Thornburg contains language supporting the court's result here (although some overflights in Thornburg did pass over plaintiff's property), the case states a current precedent that may have sweeping implications. If any property owner who can show a diminution in value resulting from airport noise can recover in a takings action, airports will become very, very difficult to build (or expand).

Further, how do we differentiate other cases of "non trespassory impacts?" The biggest problem, of course, is highway noise. One or two states have found that highway noise results in a taking, but most cases have not done so. Some of those rejecting takings claims have concluded that highway noise is not peculiar to a small group of citizens. But is this really true when one considers the modern interstate highway?

Comment 2: The Tennessee court does not stoop to the analogy used by some courts that noise impacts can establish a "noise easement" over the plaintiff's property, and thus result in a taking of a property interest. But neither does the court use any other analysis to indicate why a tort injury, in and of itself, constitutes a taking of a property interest. The presence of the wingtip in the plaintiff's airspace indeed does make a difference in classical terms - it is an invasion of the plaintiff's right of exclusive possession - an interference with a traditionally recognized property interest. By identifying new kinds of interests as "property," the court creates the risk the protection given to property interests will be diluted through expansion. Society can only stand so much cost of development, and if it finds that the law requires that it must pay for every claimed diminution in value resulting from public activities, it will reform the law to alleviate itself of that burden. These reforms likely will not draw the line at the more traditional protection of property, but will go far past them to permit numerous new invasions.

Of course, an argument can be made that the identification of traditional property interests as a specially protected class is an archaic and artificial distinction in the modern world. But it is one that has proved useful and workable in a good many contexts. At the fringes, such as where only inches of an airplane's wingtip intrudes into a landowner's airspace, the editor concedes that the distinctions seem petty. But line drawing always involves such anomalies. This doesn't mean that line drawing is always a futile exercise.

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