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July 1, 1952


The opinion of the court was delivered by: RAYFIEL

This is a motion for a preliminary injunction restraining, pendente lite, the enforcement of an ordinance adopted by the Village of Cedarhurst on March 31, 1952, prohibiting, inter alia, the flight of aircraft over that village at an altitude of less than 1000 feet. The action is for a declaratory judgment to the effect that the said ordinance is unconstitutional and invalid.

The parties plaintiff consist of the following: -- (1) ten air lines, each of which is engaged, under the authority of the Civil Aeronautical Board, hereinafter referred to as the "Board", as a common carrier of passengers, freight and mail in interstate and/or foreign commerce between the New York International Airport, hereinafter referred to as "Idlewild", and various airports in the United States or foreign countries; (2) the President of the Air Line Pilots Association, International, both as President and as representative of a group of individuals, members of the said association, whose work requires them to pilot aircraft into and out of "Idlewild" from and to various airports in the United States and foreign countries; (3) The Port of New York Authority, hereinafter referred to as the "Port Authority", a body corporate established by compact between the States of New York and New Jersey, for the development and operation of terminal and transportation facilities in the Port of New York District, which includes "Idlewild", which it occupies under lease and operates pursuant to the authority vested in it under statute adopted by the legislatures of both states; (4) ten individuals, each a pilot of one of the ten air lines plaintiffs, and each suing individually and in behalf of others in his class. Each of the said individuals is qualified and has been authorized and licensed to pilot aircraft in interstate and foreign commerce by the Administrator of Civil Aeronautics, hereinafter referred to as the "Administrator".

 The "Board" and the "Administrator" have asked for and obtained leave to intervene.

 The defendants appeared specially for the purpose of contesting the Court's jurisdiction.

 The defendants contend that under the common law title to air space is vested in the owner of the surface soil beneath it. They cite the case of U.S. v. Causby, 328, U.S. 256. 66 S. Ct. 1062, 90 L. Ed. 1206, to support their position. It is unnecessary to set forth at length the facts involved in that case; it should suffice to say that they and the principle involved are completely at variance with those in the instant case. It is interesting to note, however, that Mr. Justice Douglas, in his opinion in the Causby case, said, at page 260 of 328 U.S., at page 1065 of 66 S. Ct., 90 L. Ed. 1206, "It is ancient doctrine that at common law ownership of the land extended to the periphery of the universe -- Cujus est solum ejus est usque ad coclum. But that doctrine has no place in the modern world. The air is a public highway, as Congress has declared. Were that not true, every transcontinental flight would subject the operator to countless trespass suits. Common sense revolts at the idea. To recognize such private claims to the airspace would clog these highways, seriously interfere with their control and development in the public interest, and transfer into private ownership that to which only the public has a just claim".

 The defendants further contend that Congress, in enacting the Civil Aeronautics Act, Title 49 U.S.C.A. ยง 401, et seq., recognized the private ownership of what defendants' counsel refers to as "superjacent air" when it provided, under section 452 (c) (2) thereof, that the "Administrator" is authorized "* * * to acquire by purchase, condemnation, lease, or otherwise, * * * easements through or other interests in airspace immediately adjacent thereto * * *."

 I do not believe that Congress intended that the "Administrator" should be required to condemn or otherwise acquire the airspace adjacent to every plot of land over which planes under its supervision and control would be obliged to fly in landing at or leaving an airport. Even if that were the intent of Congress the remedy of an affected property owner is by an action for damages in the Court of Claims, as was done in the Causby case, supra.

 There appear to be three questions to be determined in passing upon the application for a preliminary injunction herein: --

 (1) Should the plaintiffs be required to exhaust their remedies in the state courts before having recourse to this Court?

 (2) Is there a serious question as to the constitutionality of the aforementioned ordinance?

 (3) If there is, would the refusal to grant a preliminary injunction result in irreparable loss and damage to the plaintiffs?

 As to the necessity of exhausting remedies in the state court.

 All of the authorities advanced by the defendants to support their contention that the plaintiffs should be relegated to the state courts apply to cases in which state issues were involved in whole or in part.

 In the case of Spector Motor Co. v. McLaughlin, 323 U.S. 101, 65 S. Ct. 152, 89 L. Ed. 101, the constitutionality of a Connecticut statute imposing a tax on vehicles engaged in interstate and intrastate traffic was involved. The court retained jurisdiction, but directed the plaintiff to proceed in the state court for the determination ...

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