Francis H. Clabaugh, Beaufort, S.C., for plaintiff; Barry L. Johnson, Beaufort, S.C., atty. of record. Dowling, Sanders, Dukes, Novit & Svalina, P. A., Beaufort, S.C., of counsel.

Joseph R. Bankoff, Atlanta, Ga., atty. of record, for Morgan Guaranty Trust Co. of New York. King & Spalding, Atlanta, Ga., of counsel.

George H. O'Kelley, Beaufort, S.C., atty. of record, for Bankers Trust of South Carolina; J. B. Kinghorn and A. M. Kinghorn, d/b/a Kinghorn Building Supply Co.; Southern Turf Grass Seeds, Inc.; and Uniroyal, Inc.

John W. Minor, Hilton Head Island, S.C., atty. of record, for Citizens and Southern Financial Corp. Adams, Adams, Brennan, Gardner & Hughes, Hilton Head Island, S.C., of counsel.

Daniel R. McLeod, Columbia, S.C., atty. of record, for South Carolina Tax Commission.

James E. Brookshire, Columbia, S.C., with whom was Asst. Atty. Gen. Carol E. Dinkins, Washington, D.C., for defendant. Peter D. Coppelman, Walter J. Postula, and Joseph J. McGovern, Dept. of Justice; Veronica Meade and Edward Passarelli, Dept. of the Navy; and Captain John L. Wittenborn, United States Air Force, Washington, D.C., of counsel.

Before NICHOLS, KASHIWA and SMITH, Judges.

OPINION

This case is before the court on exceptions to the report of Trial Judge Francis C. Browne.

After consideration of the briefs and oral argument of the parties, we adopt the report, as modified, as an opinion of this court. Because we find it unnecessary to reach the issue of whether there was a "sonic" easement, we delete that portion of the report discussing the issue. Additionally, we delete that portion of the report dealing with rights of third-party plaintiffs; thus, who shares in the award shall be determined at the time of the final judgment.

The novelty of this decision is in its holding that defendant's use of airspace at altitudes above 500 feet, and independent of landing and takeoff, may be a taking of land beneath if the use is peculiarly burdensome. A vital factor of this case is that defendant devised an exercise to prepare trainees for future landings on aircraft carriers, in which heavy jet aircraft followed one another almost nose to tail in an unvarying loop over plaintiff's land. Trainees were required to hold their planes, preparatory for landing on the supposititious carrier deck, with noses up and tails down, with near maximum power (and noise) associated with low speed. Defendant could have performed this exercise elsewhere but selected airspace over plaintiff's land for it because alternative locations were deemed even more objectionable. Thus, plaintiff was consciously singled out or selected to bear a burden which defendant also consciously elected not to impose on others, even others otherwise similarly situated. This is a classic statement of a taking situation. Whether use of airspace above 500 feet for noisy air navigation of a more conventional variety can be held a taking is an issue that can be and is reserved for the case that presents it. In this case our taking holding turns on the peculiar facts the trial judge has found.

The trial judge's report, as modified, follows.[fn1]

[fn1] The findings of fact have been submitted to the parties and with the exception of the "Ultimate Finding and Conclusion" are adopted by the court. We do not reprint the findings of fact here because the facts necessary to resolve this case are set forth in the report.

[fn*] The opinion and conclusion of law are submitted in accordance with Rule 134(h).

[fn1] Such "taking" has been referred to in reported cases variously as an "avigation easement" (by analogy to the sovereign's right of navigational servitude in navigable waters of the sovereignty) and as an "easement of flight" (by analogy to easements taken by the sovereign in the airspace over land for public purposes).

[fn2] In addition to Morgan, other third-party plaintiffs (creditors of plaintiff) have appeared, but Morgan is the only third-party plaintiff who actively participated in the trial of the case or has presented post-trial submissions as a third-party plaintiff.

[fn3] FMLP operations are required before a pilot can be deemed "combat ready," and thus qualified to fly carrier operations. The operations must be practiced both during the daytime and at night. Since a pilot is only deemed to be qualified for 3 months after flying FMLPs, an F-4 squadron will usually fly FMLPs just prior to being assigned to duty on a carrier.

[fn4] "Clearly unacceptable: The noise exposure at the site is so severe that construction costs to make indoor environment acceptable for performance of activities would be prohibitive. (Residential areas: The outdoor environment would be intolerable for normal residential use)." (Emphasis supplied.)

[fn5] "Normally unacceptable: The noise exposure is significantly more severe so that unusual and costly building constructions are necessary to insure adequate performance of activities."

[fn6] Beaufort is pronounced "Bu'fert" in South Carolina, whereas the name is pronounced "Bo'fort" in North Carolina where a city of the same name is located.

[fn7] The AV-8, however, did not fly the same "racetrack" FMLP pattern over plaintiff's property since that aircraft operates on a vertical takeoff principle.

[fn8] The record establishes that much of the time one of the five F-4 squadrons (12 of the 60 planes) was on TDY (temporary duty) at one or another of the other stations in the United States. It also establishes that MAG-31 was not always at full TO (table of organization) strength, either in terms of aircraft or pilots.

[fn9] The only logical assumption which can be made is that there was a desire to lower the altitude of the downwind leg to be only slightly above the level of an aircraft carrier deck above the water level without going below the 500-foot level prescribed by the Federal Aviation Administration as the safe level of flight of all aircraft over private property.

[fn10] The Composite Noise Rating is measured in PNdB. The CNR is a way to describe quantitatively the acoustic energy of sound as it relates to the subjective feelings of loudness, noisiness or annoyance that would be experienced by an observer.

[fn11] One of the six operational modifications which was accepted to be implemented with the AICUZ study was not actually carried out because of a perceived conflict with safety criteria.

[fn12] See, e. g., "Airport Noise Regulation: Burbank, Aaron and Air Transport" 8 Trans.L.J. 403 (1976) and "Current State of the Law in Aircraft Noise Pollution Control" 43 J. Air L. & Com. 799 (1977).

[fn13] The existing statutes and regulations as applied to the facts in Causby v. United States, 328 U.S. 256, 66 S.Ct. 1062, 90 L.Ed. 1206 (1946), were interpreted to mean that "the navigable airspace" began at 500 feet above Causby's land. (There was no allowance, in that interpretation, for takeoffs or landings.)

[fn14] It is of interest to note that subsequently Congress defined "navigable waters" to mean "waters of the United States." 33 U.S.C. § 1362(7) (1976).

[fn15] By further analogy, since owners of property adjacent to the navigable waters of the United States must not be made to suffer uncompensated damage such as that resulting from an abnormal wake caused by vessels plying the navigable waters, owners of property subjacent to the navigable airspace of the United States should not be made to suffer the damages caused by abnormal aircraft noise without just compensation especially where the flights by Government-owned aircraft directly and immediately interfere with the use and enjoyment of the land.

[fn16] Although this case is said to have been decided on a theory that a physical invasion is required for a taking, the compensable damage that was found to exist was not accompanied by a physical invasion, but the damage resulted from an overt act of defendant which caused the smoke and noise to be directed over plaintiff's property. Furthermore, there have been many cases in the Supreme Court, this court, and other Federal courts where the fifth amendment taking of land was found to have been effected without an actual physical invasion of the surface of that land. See, e. g., Pennsylvania Coal Co. v. Mahon, 260 U.S. 393, 43 S.Ct. 158, 67 L.Ed. 322 (1922) (a taking of the subjacent property); Drakes Bay Land Co. v. United States, 191 Ct.Cl. 389, 424 F.2d 574 (1970) (isolation of and denial of access to plaintiff's property).

[fn17] These cases were decided under the same legal framework of the present case. Other states have constitutions which grant broader relief to property owners than the Federal constitution; they provide right to compensation when property is taken or damaged. See, e. g., Martin v. Port of Seattle, 64 Wash.2d 309, 391 P.2d 540 (1964). These other cases will not be further considered herein.

[fn18] As set forth on pp. 96-97, supra.

[fn19] It does not appear from the opinion or findings of fact in Lacey that an AICUZ study was ever made in connection with the Naval Auxiliary Landing Field in that case.

[fn20] The noise level of the A4J aircraft (introduced in 1969) was 133 decibels at 50 feet AGL and 110 decibels at 1,000 feet AGL, whereas the comparable values for the F-9 (flown from 1958 to 1969) were 131 decibels at 500 feet and 108 decibels at 1,000 feet. Thus, there was no "appreciable difference" in noise level between that created by the A4J and the F-9. The noise level of the T2C aircraft (introduced in 1972) was even lower, the values 127 decibels at 500 feet AGL and 104 decibels at 1,000 feet.

[fn21] It is noted that the Federal Aviation Administration has promulgated regulations regarding noise standards for aircraft which are wholly apart from flight regulations. See Title 14, C.F.R., Part 36 (1980).

[fn22] Gliders, for example, would not be a source of noise impact over a residential area, even if flown at altitudes of less than 500 feet AGL over such an area. However, flight of gliders over property at any altitude might constitute a substantial accident risk. Conversely, loud, annoying aircraft such as helicopters, repeatedly passing over a residential area at an altitude above 500 feet AGL, might well be a source of considerable noise impact and yet not create a substantial accident risk at any given point below.