Griggs v. County of Allegheny, Pennsylvania/Dissent Black

Mr. Justice BLACK, with whom Mr. Justice FRANKFURTER concurs, dissenting.

In United States v. Causby, the Court held that by flying its military aircraft frequently on low landing and takeoff flights over Causby's chicken farm the United States had so disturbed the peace of the occupants and so frightened the chickens that it had 'taken' a flight easement from Causby for which it was required to pay 'just compensation' under the Fifth Amendment. Today the Court holds that similar low landing and take-off flights, making petitioner Griggs' property 'undesirable and unbearable for * *  * residential use,' constitute a 'taking' of airspace over Griggs' property-not, however, by the owner and operator of the planes as in Causby, but by Allegheny County, the owner and operator of the Greater Pittsburgh Airport to and from which the planes fly. Although I dissented in Causby because I did not believe that the individual aircraft flights 'took' property in the constitutional sense merely by going over it and because I believed that the complexities of adjusting atmospheric property rights to the air age could best be handled by Congress, I agree with the Court that the noise, vibrations and fear caused by constant and extremely low overflights in this case have so interfered with the use and enjoyment of petitioner's property as to amount to a 'taking' of it under the Causby holding. I cannot agree, however, that it was the County of Allegheny that did the 'taking.' I think that the United States, not the Greater Pittsburgh Airport, has 'taken' the airspace over Griggs' property necessary for flight. While the County did design the plan for the airport, including the arrangement of its takeoff and approach areas, in order to comply with federal requirements it did so under the supervision of and subject to the approval of the Civil Aeronautics Administrator of the United States.

Congress has over the years adopted a comprehensive plan for national and international air commerce, regulating in minute detail virtually every aspect of air transit-from construction and planning of ground facilities to safety and methods of flight operations. As part of this overall scheme of development, Congress in 1938 declared that the United States has 'complete and exclusive national sovereignty in the air space above the United States' and that every citizen has 'a public right of freedom of transit in air commerce through the navigable air space of the United States.' Although in Causby the Court held that under the then existing laws and regulations the airspace used in landing and take-off was not part of the 'navigable airspace' as to which all have a right of free transit, Congress has since, in 1958, enacted a new law, as part of a regulatory scheme even more comprehensive than those before it, making it clear that the 'airspace needed to insure safety in take-off and landing of aircraft' is 'navigable airspace.' Thus Congress has not only appropriated the airspace necessary for planes to fly at high altitudes throughout the country but has also provided the low altitude airspace essential for those same planes to approach and take off from airports. These airspaces are so much under the control of the Federal Government that every take-off from and every landing at airports such as the Greater Pittsburgh Airport is made under the direct signal and supervisory control of some federal agent.

In reaching its conclusion, however, the Court emphasizes the fact that highway bridges require approaches. Of course they do. But if the United States Highway Department purchases the approaches to a bridge, the bridge owner need not. The same is true where Congress has, as here, appropriated the airspace necessary to approach the Pittsburgh airport as well as all the other airports in the country. Despite this, however, the Court somehow finds a congressional intent to shift the burden of acquiring flight airspace to the local communities in 49 U.S.C. § 1112, 49 U.S.C.A. § 1112, which authorizes reimbursement to local communities for 'necessary' acquisitions of 'easements through or other interests in air space.' But this is no different from the bridge-approach argument. Merely because local communities might eventually be reimbursed for the acquisition of necessary easements does not mean that local communities must acquire easements that the United States has already acquired. And where Congress has already declared airspace free to all-a fact not denied by the Court-pretty clearly it need not again be acquired by an airport. The 'necessary' easements for which Congress authorized reimbursement in § 1112 were those 'easements through or other interests in air space' necessary for the clearing and protecting of 'aerial approaches' from physical 'airport hazards' a duty explicitly placed on the local communities by the statute (§ 1110) and by their contract with the Government. There is no such duty on the local community to acquire flight airspace. Having taken the airspace over Griggs' private property for a public use, it is the United States which owes just compensation.

The construction of the Greater Pittsburgh Airport was financed in large part by funds supplied by the United States as part of its plan to induce localities like Allegheny County to assist in setting up a national and international airtransportation system. The Court's imposition of liability on Allegheny County, however, goes a long way toward defeating that plan because of the greatly increased financial burdens (how great one can only guess) which will hereafter fall on all the cities and counties which til now have given or may hereafter give support to the national program. I do not believe that Congress ever intended any such frustration of its own purpose.

Nor do I believe that Congress intended the wholly inequitable and unjust saddling of the entire financial burden of this part of the national program on the people of local communities like Allegheny County. The planes that take off and land at the Greater Pittsburgh Airport wind their rapid way through space not for the peculiar benefit of the citizens of Allegheny County but as part of a great, reliable transportation system of immense advantage to the whole Nation in time of peace and war. Just as it would be unfair to require petitioner and others who suffer serious and peculiar injuries by reason of these transportation flights to bear an unfair proportion of the burdens of air commerce, so it would be unfair to make Allegheny County bear expenses wholly out of proportion to the advantages it can receive from the national transportation system. I can see no justification at all for throwing this monkey wrench into Congress' finely tuned national transit mechanism. I would affirm the state court's judgment holding that the County of Allegheny has not 'taken' petitioner's property.