General Aviation, Inc. v. The Cleveland Electric Illuminating Co.

No. C70-825 (2 ERC 1328) (N.D. Ohio February 23, 1971)

Private Ohio airport cannot obtain injunction against construction of 600-foot smokestack on nearby property despite interference with landings at three runways. Interference with plaintiff's use of defednat's property not nuisance. Defendant landowner owns at least as much of the space above his ground as he can occupy or use in connection with the land. No prescriptive easement acquired by plaintiff through previous use of airspace, because defendant could not have used space itself. FAA cannot, through its power to assign airspace to competing interest, confiscate easements in private property without compensation.

Counsel for Plaintiff:
Phillip A. Ranney
Schneider, Smeltz, Huston & Bissell
1525 National City Bank Building
Cleveland, Ohio 44114
(216) 861-7400

Counsel for Defendant:
George Meisel
Squire, Sanders & Dempsey
1800 Union Commerce Bldg.
Cleveland, Ohio 44115
(216) 696-9200

Theodore A. Gullia, Jr.
Hanna Bldg.
Cleveland, Ohio 44114
(216) 241-6666

Paul A. Granzier
Cleveland Electric Illuminating Co.
Cleveland, Ohio 44114
(216) 252-7199

[1 ELR 20184]

Pattisti, J.

This suit has been brought to prevent interference with plaintiff's airport operations by a 600-foot stack being constructed by the defendants.

Lost Nation Airport has been maintained by the plaintiff, General Aviation, as a private airport since 1931. Seventeen years later, in 1948, the Cleveland Electric Illuminating Company (CEI) acquired land nearby, in Eastlake, Ohio, and a few years later built an electric generating plant, whose 307-foot stacks made it necessary to alter approach and landing patterns at the airport. CEI now is constructing an addition to this plant, and air pollution control standards require a 600-foot stack. Despite $72,000 being spent by the defendants for lighting, this stack will have a detrimental impact on the airport, interfering in particular with instrument landings on three of its runways.

The plaintiff, claiming that the height and location of the stack make it a nuisance, that it constitutes an extraordinary structure in the area, and further, that it violates navigable airspace assigned to General Aviation by the Federal Aviation Authority, wants CEI to provide two Localizer-Type Directional Aids (LDAs). These, plaintiff contends, would minimize, but not eliminate, the effects of the stack upon instrument approaches to runways 5 and 9.

Superficially, at least, the nuisance argument is a seductive one — but on closer examination is not really relevant to this case. Essentially the law of nuisance will apply when one landowner so uses his property that he interferes with his neighbor's right to the quiet enjoyment of his own land. Here, however, the direct effect of the stack is upon the plaintiff's flights over the defendants' land. Granted that this in turn has a substantial detrimental effect upon the operations at the airport itself, it would seem, nevertheless, that the connection is too remote to give rise to an action for nuisance.

That the stack is extraordinary in the area is, in one sense, uncontrovertible; it will rise to the height, perhaps, of a fifty-story skyscraper. In essence, however, the difference between the 600-foot stack and its 307-foot predecessors will be one merely of degree. The new structure may restrict operations at the airport, as did the construction of the earlier ones, but this inconvenience must not be equated with hazard, since there has been no showing that in this case there will be increased danger resulting from the new stack. Since anyone proposing to use Lost Nation Airport will be guided by maps and charts showing the new stack, it would seem that plaintiff's spectre of danger to the public at large is as intangible as the very air. Thus it is not to this alleged hazard, but rather to questions of possible interference with specific property rights enjoyed by the plaintiff that this Court must address itself.

At common law the extent of a landowner's rights in his property was defined as: "Cujus est solum, ejus est usque and coelum," - Ownership of land extends as high as the sky. It has been only with the development of air travel in this century that the blitheness of this maxim has been questioned, and the absurdity of its full implications recognized by the courts. The modern equivalent to the common-law rule was enunciated in United States v. Causby, 328 U.S. 256, at 264, that: "Full enjoyment of the land" implies "exclusive control of the immediate reaches of the enveloping atmosphere." The question of what constitutes the "immediate reaches" of the atmosphere has been the subject of endless legal nit-picking — but perhaps the simplest formula is the one provided by the Court in Causby: "The landowner owns at least as much of the space above the ground as he can occupy or use in connection with the land." Ibid.

The extent of the defendants' estate in the property, then, is subject to change as dictated by circumstances. Had marshy land or building codes restricted construction to one-story structures, that height would have demarcated the height of CEI's property interest; on the other hand, construction of a skyscraper on previously vacant land may raise that frontier to the very edge of the upper atmosphere. The defendants, then, (to repeat) have title not only to the surface of their property, but as much of the airspace above the surface as they actuallty use. Since they were not using the airspace above the 307-foot stacks until now, they did not own that space; and, as a result, they could have taken no action to prevent plaintiff's overflights, take-offs, approaches, and landings that did not interfere with their current use of the land. Thus, no amount of use of the airspace over any period of time could have ripened into an easement by prescription so as to give plaintiff a legal right to use it. Having neither common-law rights on or over defendants' property, nor easements purchased or prescriptive, plaintiff must base its claims upon the contention that it is the beneficiary of an assignment of air navigation corridors over defendants' property granted by the Federal Aviation Agency. This assignment, it is claimed, was made under authority of 49 U.S.C. § 1304 and § 1348(a). The purpose of § 1304 is to affirm the principle of a ". . . public right of freedom of transit through the navigable airspace of the United States." To protect and develop this rights, the F.A.A. administrator is given authority under § 1348(a) to ". . . assign by rule, regulation, or order the use of the navigable airspace. . . ." Clearly, the intent of this section is to give the Administrator the authority to assign the limited amount of navigable airspace between competing commercial, military, and private aircraft needs — not to give the power, by determining what constitutes navigable airspace, to confiscate easements in private property without compensation.

It is concluded, then, that the plaintiff has no rights in or over defendants' land. Like the airport-respondent in Griggs v. Allegheny County, 369 U.S. 84 (1961), the plaintiff was obligated to purchase any necessary land or to obtain easements from neighboring landowners, and as in Griggs, supra, at 90, "it did not acquire enough."

Accordingly, plaintiff General Aviation's prayer for injunction is hereby denied, and its complaint is dismissed.

It is so ordered.