The opinion of the court was delivered by: KNOX
In these condemnation proceedings, instituted on May 23, 1955, the Government has acquired avigation easements over three parcels of land within the Town of New Windsor, Orange County, New York. Two of them are owned by Mary B. Maroney, and the other by Robert S. Finley and Dorothy O. Finley. The Declaration of Taking was filed on June 2, 1955.
In addition, the Government, for the purpose of the extension and improvement of Stewart Air Force Base, a large and active military installation, which is about three miles from the subject properties, has acquired the fee of several parcels of land adjoining, or close by, the properties affected by the easements. One of them is a 28 acre piece of land formerly belonging to the Finleys, and another is three fourths of an acre, owned by Maroney. The sums paid therefor were agreed upon by the parties, and are not before me.
The easement over the Finley parcel is identified as A109-E, and covers approximately 12 acres. It is a portion of a farm which, before the taking of the 28 acres in fee, contained 104 acres.
The two other parcels affected by the easements are designated as A108-E1 and A108-E2. They aggregate about 36 acres, and are a part of a 70 acre farm belonging to Maroney.
The rights and interests acquired by the United States are described in the Declaration of Taking as follows:
'3. The estate hereby taken for said public use consists of the following rights in and over the tracts of land described in Schedule 'A':
'(1) The continuing perpetual right to cut to ground level and remove trees, bushes, shrubs, or any other perennial growth or undergrowth infringing upon or extending into or above the Glide Angle Plane as described in Schedule 'Z'.
'(2) The continuing perpetual right to cut to ground level, remove, and prohibit the growth of such trees, bushes, shrubs, or any other perenial growth or undergrowth which could in the future infringe upon or extend into or above the Glide Angle Plane as described in Schedule 'Z'. k10'(3) The right to prohibit the future construction of buildings or other structures from infringing upon or extending into or above the Glide Angle Plane as described in Schedule 'Z'.
'(4) The right of ingress to and egress from and passage on and over said tract to effect and maintain the necessary clearances.
'Reserving, however, to the landowners, their heirs, executors, administrators, successors, and assigns all right, title, interest and privileges as may be exercised and enjoyed without interference with or abridgment of, the easement and rights hereby taken for said public uses.'
The average height limitations for constructions or growths upon the lands is approximately 85 feet. However, surrounding a high hill on the Finley lands, such limitations are much below the average. The height of the hill accounts for the low elevations of the easements. At points, there are no more than 15 to 20 feet.
On the road frontage along Drury Lane, the limitations range from 90 to 110 feet.
The glide angle plane, in this suit, extends westerly from the westerly end of one of the runways of the Stewart Air Force Base, and passes over the condemned lands.
The ultimate question before me is the compensation that should be paid to the owners of the aforesaid properties for the rights and interests specifically described and limited by the language used in the Declaration of Taking. Such compensation should represent the diminution in market value, if any, of these lands, which is due to the impairment of their utility.
The landowners contend that the Government, by taking these easements, has appropriated their air rights, and that they should have just compensation therefor. It is also contended that substantial damages should be awarded inasmuch as anticipated flights of aircraft over the lands will be at low levels. These, it is said, will cause fear, noise and vibration, and be productive of psychological effects upon persons residing on the premises. Such easements, it is argued, will seriously impair the utility of the lands for residential occupation. In support of these points of view, reliance is primarily based on United States v. Causby, 1946, 328 U.S. 256, 66 S. Ct. 1062, 90 L. Ed. 1206.
The rights taken by the Government may be described as obstruction easements. They are limited by the language used in the Declaration of Taking and, in and of themselves, do not include the right to fly aircraft over the lands of the condemnees.
As was held in United States v. 4.43 acres of land, etc., D.C., 137 F.Supp. 567, 569, the interest acquired 'has but one function, insofar as these condemnation proceedings are concerned, and that is to serve as the ceiling over the land in question beyond which obstructions or structures may not be allowed to extend upward into the adjacent air space. Its nomenclature is unimportant.' The Court further said that, by such easements, the Government did not acquire, and should not be required to pay compensation, for damages to the lands resulting from the flights of aircraft. The easements there acquired, as here, were limited to the prevention of obstructions or structures on the land extending into the air space above the 'glide angle plane.'
In the Causby case, supra, the factual and legal situation differed entirely from the one at bar. In that litigation, there had been no formal taking, or appropriation, of any right or estate in the land involved. The evidence established that the Government, by its frequent low level flights of aircraft, with attendant noise, vibration and bright lights at night, had destroyed the utility of the real estate for chicken raising, and had, in fact, destroyed many of the chickens. The Court ruled that, under such circumstances, there had been a taking of private property for public use, ...