GRACE E. AVERY, ET AL. v. THE UNITED STATES, 165 Ct. Cl. 357

Durfee, Judge, delivered the opinion of the court; This is an action seeking- compensation for the taking by defendant of avigation easements over 33 parcels of land located in Seminole County, Florida, near, and west of the United States Naval Air Station at Sanford. Generally, the area in which the parcels are located can be described as suburban in character made up of unimproved lots, single family residences, some multi-family units, schools, stores and other establishments designed to serve an average suburban community.

The Naval Air Station, a World War II installation that was deactivated in 1946, was reactivated in May of 1951. Its east-west runway, Runway 9-27, was lengthened from its original 6,000-foot length to 8,000 feet in 1953. In 1957 and. 1959 paved “overruns” were added, bringing the total length of the runway to 11,450 feet at the time this suit was filed. A wall 15 feet high and 600 feet in length was installed at the extreme western edge of the runway as a shield from the blast of jet aircraft preparing to take off to the east. Initially, upon reactivation, the Station was stocked with jet fighter planes.

In 1953, the Station’s mission was changed and a heavier type of aircraft, the AJ “Savage,” equipped with one turbojet and two reciprocating engines, was brought to the Station. In January 1957 the Navy’s then largest long-range bomber, the Douglas A3D “Sky Warrior,” arrived at the Station. Since a part of the Station’s mission was the familiarization of Navy pilots with takeoff and landing techniques for new aircraft, a marked increase in the number of takeoffs and landings was experienced. The increase is charted in finding 7.

For convenience, the parcels of land here involved have been grouped in five classifications. Since there is some variation in the claims presented by each group, we will discuss each in turn. Group A, made up of parcels 1 through 12, and 14 through 18, located within the approach zone of the runway, were subjected to an avigation easement in 1953.

In United States of America v. 143 Acres of Land, etc., Case No. 627 in the United States District Court, Southern District of Florida, the United States received a perpetual easement for the flight of aircraft over the parcels of Group A involved in the present case at elevations as low as 29 feet above the ground. Despite this existing easement, plaintiffs contend that the introduction of the larger, noisier A3D aircraft in January of 1957 constituted a further taking — an uncompensated expansion of the existing easement. The use of the new aircraft did further reduce the value of the lands.

The question squarely before us then is whether the introduction of larger, heavier, noisier aircraft can constitute a fifth amendment taking of an additional easement even though new aircraft do not violate the boundaries of the initial easement. In Klein v. United States, 152 Ct. Cl. 221 (1961), cert. denied 366 U.S. 936 on a motion for reconsideration, this court reversed its earlier conclusion that plaintiff was barred by the statute of limitations since suit had not been instituted within six years of the date of initial taking. Relying on United States v.

Dickinson, 331 U.S. 745 (1947), we came to the conclusion that the cause of action did not accrue until the “extent of the taking of an easement of flight has been ascertained.” Consequently, though there had been a taking as early as 1947, the ultimate taking could not be ascertained until 1954 when, through the introduction of new approach procedures and increased operations, “conditions became unbearable.” It was not until then that the cause of action accrued and the statute started running. Davis v. United States, 155 Ct.

Cl. 418, 295 F. 2d 931 (1961), also a statute of limitations case, more closely parallels the situation we face here since the question there involved the use of larger, noisier aircraft. In that case, B-52 bombers had supplanted B-36 type aircraft.

The court, rejecting the statute of limitations defense, pointed out that: * * * even if it could be said that a taking occurred in November 1951 when the B-36 bombers commenced flying over plaintiffs’ land, it certainly was at most only a partial taking and not such a taking as occurred when the B-52 flights commenced. * * * [at 421, 295 F. 2d at 933, emphasis added] Both decisions are based on the concept underlying United States v. Causby, 328 U.S. 256 (1946) that a land owner should be compensated for damage to his land values incurred through the taking of an easement under the fifth amendment.

Defendant would concede that the change in aircraft operations was sufficient to constitute the taking of a new and more extensive avigation easement over Group A by virtue of Klein, supra, and Bacon v. United States, 155 Ct. Cl. 441, 295 F. 2d 936 (1961), but for the fact, as set forth in the Declaration of Taking in case No. 627, supra, that the 1953 condemnation proceedings vested in the United States * * * a perpetual easement and right of way for the free and unobstructed passage of aircraft in, through and over * * * the lands of Group A.

Consequently, defendant argues as a matter of law, there could have been no further diminution of the land value since: * * * the consequences of that fact insofar as the real estate market is concerned, and insofar as any prospective purchasers after 1953 are concerned, were to diminish the fair market value and warn the world that any prospective purchaser of those properties would obtain a parcel which would be subject to noise, annoyance and serious interference with its use and enjoyment, [p. 20, defendant’s brief] The critical point of defendant’s argument is based upon the prior taking of a perpetual easement for all aircraft which puts the potential buyer on notice thereof.

Though no case has yet directly examined and passed on the import of language in easements purporting to vest in the United States a right to fly aircraft, all aircraft, or aircraft of any kind, over tracts of land, we cannot conclude that there can never be a further taking and further damages as a matter of law due simply to such easements. Since the measure of damages is “the owner’s loss, not the taker’s gain,” Causby, supra; United States v. Miller, 317 U.S. 369 (1942), a subsequent loss in property value may be an essential factor in determination of a subsequent taking.

Eead in such a context, the words “passage of aircraft” as used in the easement taken in this case would necessarily be limited to types of aircraft, the operation of which would not constitute a subsequent taking. Other factors that may be of aid in ascertaining when a further taking has occurred have already been outlined by this court. Increased operations, Klein, supra, or the introduction of new aircraft, Dams, supra, either or both of which results in greater noise, greater inconvenience and a further reduction of land values are but two of such factors. All these factors were here present.

New aircraft was introduced ; operations were increased and land values decreased sharply. We hold that a new and further taking occurred in 1957 as to the parcels in Group A and parcel 32 in Group B. Group B, made up of parcels 23, 25 and 32, while located within the confines of the traffic pattern described in finding 9, is not (with the exception of parcel 32) located within the approach zone to the western end of Bunway 9-27.

While the other Group B parcels (parcels 23 and 25) suffer from the same general effects of overflights as do the parcels of Group A, they are not subject to takeoff and landing operations occurring directly overhead; both parcels being at least 17,000 feet south of the center line of the runway. Aside from rare emergency situations, there were no flights directly overhead at less than 500-foot altitude over these parcels.

Consequently, under the law as it is now enacted and construed, there is no compensable taking of easement on these parcels, — the inconvenience and injury to the property being “incidental” and “unavoidably attendant” to the use of the airways. Alva A. Aaron et al. v. United States, 160 Ct. Cl. 295, 311 F. 2d 798; Matson v. United States, 145 Ct. Cl. 225, 171 F. Supp. 283 (1959); Richards v. Washington Terminal Co., 233 U.S. 546, 555 (1914); Campbell v. United States, 266 U.S. 368 (1924). The owners of Groups C,

I) and E advance a somewhat different argument than that already discussed. While there are concededly no frequent and low flights of aircraft over these properties, plaintiffs allege that a fifth amendment taking has occurred through the physical invasion of their property by sound waves. The interference with the enjoyment of property is identical in nature and consequences to that suffered by Group A owners through the overflights.

Group G, two parcels improved by single family frame houses, is located within the traffic pattern but outside the approach zone, being situated some 3,000 to 3,500 feet south of the center line of the extended runway. Group D, parcel 24, an unimproved lot, is situated similarly to, but approximately 1,000 feet west of Group C. Group E, parcels 40 through 46, are located outside the traffic pattern, but are contiguous to the northwest comer of the Station. The alleged taking occurred in March of 1959 when defendant placed in operation the western overrun extensions.

In preparing for takeoff to the east, the pilot taxis to the extreme end of the overrun portion, turns the aircraft to takeoff position heading east, then, while holding the aircraft stationary, performs a check known as “full power runup” by accelerating and maintaining full power. During this check which lasts some 32 seconds, the tail of the aircraft and consequently the blast from the engines is directed at the properties in Groups C, D and E. The blast fence does mitigate the effect of the blast on Groups C and D, but is not positioned to aid Group E.

The Commissioner described the effects as follows: * * * During this period of time the noise is terrific and “indescribable”; the houses shake and the windows rattle; flames and fumes are emitted from the engines; disturbing fumes and odors flow onto the properties and into the houses, especially when the wind is from the south or southeast; vibrations cause ripe citrus fruit to fall from trees growing on the properties; television reception is very poor, and it is nearly impossible to carry on conversations either in person or on the telephone; when night takeoffs are underway (which are sometimes performed at intervals of about three minutes), the residents on these properties are unable to sleep; on several occasions, clouds of dust have been thrown into the area restricting visibility sufficiently that drivers of automobiles on nearby streets must slow down to avoid possible collision. (Finding 16) From tbe facts, plaintiffs argue that these properties (Groups C, D and

E) were subject to a physical invasion, the projection of vibration produced by sound waves. In the Oausby case, supra, the Supreme Court there stated: The path of glide to this runway passes directly over the property * * *. The use of the airspace immediately above the land would limit the utility of the land and cause a dimunition on its value. [Emphasis supplied] The Court distinguished Richards v.

Washington Terminal Co., supra, as a case of incidental damages arising from a legalized nuisance: In that case, property owners whose lands adjoined a railroad line were denied recovery for damages resulting from the noise, vibrations, smoke and the like, incidental to the operations of the trains. In the supposed case, the line of flight is over the land.

And the land is appropriated as directly and completely as if it were used for the runways themselves, [at 262, emphasis supplied] While plaintiffs may be correct in pointing out that the damages to these adjoining properties are every bit as great as the damages experienced by the parcels which are subject to an avigation easement, our jurisdiction does not extend to claims for damages from “legalized nuisance” or trespass sounding in tort. 28 U.S.C. § 1491. Plaintiffs points to Cotton Land Co. v. United States, 109 Ct. Cl. 816, 75 F.

Supp. 232 (1948), which involved the eventual flooding of plaintiff’s land through erection of a dam. Since the flooding did not occur directly from erection of the dam, but rather through a chain of events occurring in a natural order, but originally set in motion by the erection of the dam, the Government defended on the theory that erection of the dam was too remote a cause on which to base liability. The Court concluded that there had been a fifth amendment taking. We rejected the “remoteness of cause” defense by pointing out that the flooding of the land was foreseeable.

We looked to the law of torts on the remoteness issue, and found no intervening cause breaking the chain of causation. The Court concluded that the flooding was the “actual and natural consequence of the Government’s act.” But in that case, it must be remembered that there was an actual invasion of the surface of plaintiff’s land, and that plaintiff’s land was made subject to an actual servitude. No case supports plaintiffs’ position here advanced that physical invasion of sound and shock waves constitutes an actual physical taking rather than merely nuisance or trespass.

As an expression of existing law, we must concur with the analysis of the majority in Batten v. United States, 306 E. 2d 580 (C.A. 10, 1962), cert. denied 371 U.S. 956. The vibrations which cause the windows and dishes to rattle, the smoke which blows into the homes during the summer months when the wind is from the east, and the noise Which interrupts ordinary home activities do interfere with the use and enjoyment by the plaintiffs of their properties. Such interference is not a taking. The damages are no more than a consequence of the operations of the Base and as said in United States v.

Willow River Power Co., supra, they “may be compensated by legislative authority, not by force of the Constitution alone.” As we see the case at bar, the distinctions which the Supreme Court has consistently made between “damages” and “taking” control and compel denial of recovery, (at 585) Consequently, we are forced to conclude as a matter of law that there has been no compensable taking of Groups C,

I) and E, and the petition as it relates to those parcels must be dismissed. We do not accept the able dissent in Batten, supra, as urged by plaintiffs, and the question raised therein as to the point at Which interference rises to the dignity of a “taking * * * Is it when the window glass rattles, or when it falls out; when the smoke suffocates the inhabitants, or merely makes them cough; when the noise makes family conversation difficult, or when it stifles it entirely?

In other words, does the “taking” occur when the property interest is totally destroyed, or when it is substantially diminished? (at 587) We need not answer this hypothetical question, with its alarming implications. Although the Commissioner has found a substantial diminution in the property value of the parcels located in Groups C, D and E, this damage to plaintiffs has been merely consequential to the flights.

There has been no actual invasion of the airspace over these plaintiffs’ properties, nor has there been any total destruction of plaintiffs’ property entered therein. “* * * It is the character of the invasion, not the amount of damage resulting from it, so long as the damage is substantial, that determines the question whether it is a taking.” United States v. Cress, 243 U.S. 316, 328 (1917), cited in United States v. Causby, supra, at 266.

Accordingly, and upon the Commissioner’s findings of fact, which are adopted as the findings of the court, we conclude that the owners of parcels 1 through 12, and 14 through 18, which make up Group A, as well as the owner of parcel 32, are entitled to recover for the avigation easement actually taken over those properties in January 1957. Judgment will be entered as to these plaintiffs as their interests appear, and according to the

schedule of damages set forth in findings 19 and 20, plus a sum computed at four (4) percent per annum from January 25, 1957, to date of payment, as part of just compensation. Defendant is vested with a further perpetual easement of flight for aircraft operated over the parcels in Group A, and parcel 32 in Group B. With respect to the remaining parcels, the petition is dismissed. FINDINGS OE FACT The court, having considered the evidence, the report of Trial Commissioner Lloyd Fletcher, and the briefs and argument of counsel, makes findings of fact as follows: Introduction 1.

Originally, twenty parties plaintiff (and, in many instances, their respective spouses) who were the owners, or representatives of owners, of 33 parcels of land located in Seminole County, Florida, brought this action seeking just compensation for the taking by the defendant of avigation easements over their properties.

Essentially, plaintiffs claim that their respective properties have been diminished in value due to the operation by defendant of jet aircraft over and about their respective properties in an aggregate amount of $103,300, and that they should be, and have not been, compensated by the United States for such diminution in value. 2. All of the parcels of land involved in this case are located generally to the west of the United States Naval Air Station at Sanford, Florida.

For purposes of convenient reference, and because of differing circumstances, the parties have identified the parcels involved by individual number and then separated them into five distinct groups, as follows: parcels 1 through 12 and 14 through 18 are classified as Group A; parcels 23, 25, and 32 are classified as Group B ; parcels 21 and 22 are classified as Group C; parcels 24 and 33 are classified as Group D; and parcels 40 through 46 are classified as Group E.

All the parcels are located in or near the City of Sanford, part of them being just inside the city limits and the remainder lying just outside the city line. As will appear in more detail below, the parcels comprise both improved and unimproved land. They are all located within a residential area which may be generally described as suburban in its character, i.e., it is an area comprised of unimproved lots, single family residences, some multifamily units, schools, stores, and other commercial establishments designed to serve a fairly well-populated area.

Historical Data With Respect to the Na/oal Air Station and Its Rv/rmay 9-27. 3. The United States Naval Air Station at Sanford, Florida (hereinafter referred to as the “Station”), was in active operation during World War II, and during that period only propeller-driven aircraft with reciprocating engines were operated thereon and therefrom. The Station was deactivated in 1946. On May 1, 1951, it was reactivated as a Naval aviation facility. At that time, the runway here involved, Runway 9-27, extended due east and west, and was 6,000 feet in length.

In 1958, this runway was extended to 8,000 feet, and in 1957 and 1959, it was still further extended by the addition at various dates of paved “overruns” so that its total length at the time of the filing of the suit herein was 11,450 feet. So-called “overrun” additions to a runway are so designed and constructed that, during normal operations, they may be used only for the commencement by a heavy aircraft of its takeoff run. They also furnish a safety area for emergency runout by an aircraft where takeoff has been aborted.

Except for emergencies, overrun areas are not designed and constructed to accommodate the landing impact of heavy aircraft. The overrun area involved in this case was constructed at the westernmost end of the runway (Runway 9) in two stages, a 1,000-foot segment having been completed in 1957, and the remaining segment of 1,150 feet having been completed in 1959. Flight operations commenced thereon March 8, 1959. For purposes of preflight engine runup and commencement of takeoff, this construction extended the effective runway to within 200 feet of the western boundary of the Station.

However, for purposes of all landings, other than emergency landings, the usable runway for heavy aircraft landing to the east remained at a point (referred to as the “threshold”) not less than 2,150 feet from the western boundary of the Station. At the extreme western end of Runway 9-27, the Navy also erected a so-called “blast fence,” approximately 15 feet in height and about 600 feet in length. This blast fence, and a branch line of the Atlantic Coast Line Railroad, separated parcels 1, 8, and 9 from the western end of the runway.

The purpose of the blast fence is to shield property on the other side of it from the direct force of the exhaust and smoke emitted by jet-powered aircraft preparing for takeoff to the east on Runway 9. Due to the prevailing winds in the area, this runway is used for takeoffs and landings more frequently than any other runway on the Station. 4. When the Station was reactivated on May 1, 1951, its mission was “to provide facilities to support regular operations for fleet carrier aircraft * * *.” Five squadrons of aircraft were assigned to and arrived at the Station on the day of reactivation.

These squadrons were composed of both jet and propeller-driven aircraft. At first, there were at least 18 jet aircraft assigned to the Station. They were single-engine, jet fighter aircraft known by the designation F9F. Commencing in January 1952, aircraft designated as F2PI2 were assigned to the Station. The F2H2 is a single-place, twin-engine, jet aircraft, commonly known by the name “Banshee.” These two types of jet aircraft were the only jets assigned to the Station from May 1951 to August 1952.

In August 1952, the mission of the Station was changed to “provide facilities to support regular operations of fleet carrier aircraft and heavy Attack Wing aircraft; [and! the emergency mast refueling of airships.” Thereupon, the above-mentioned squadrons composed of F9F and F2H2 jet aircraft were moved from the Station. Then, in October 1953, two squadrons of aircraft (one of which was a photographic squadron) were transferred from other Naval bases to the Station at Sanford.

These squadrons were equipped with aircraft designated AJ type, also known as the “Savage.” Thereafter, until January 25, 1957, the AJ was the predominant type of aircraft based at the Station. The AJ was equipped with mixed power plants, namely, two reciprocating engines and one turbojet engine. It was standard procedure to operate this aircraft with all three engines functioning during takeoffs, landings, and combat maneuvers, but at cruising altitudes only the reciprocating engines were used.

In 1955, the Station had been designated as “Home of Heavy Attack Wing One,” and in April 1956, an expansion program for the Station was formulated in anticipation of the arrival of the Navy’s then newest, largest, and fastest long-range bomber known as the Douglas A3D Sky Warrior. On January 25, 1957, the first squadron of this new type jet aircraft arrived at the Station, and it is from this date that plaintiffs in Group A claim their properties were subjected to a taking by defendant of a greater and different avigation easement than previously existed.

Group B plaintiffs also claim this date of taking, as hereinafter described. 5. From the foregoing it will be noted that the only jet-powered aircraft actually based at the Station from May 1951 to August 1952 were F9Fs and F2H2s. From October 1953 to January 25, 1957, the only jet aircraft based at the Station were of the AJ type which had mixed power plants. Commencing on January 25,1957, the new A3D jet aircraft were based at the Station, and the phasing out of the AJ type began at that time. 6.

From the record in this case, there can be little doubt that of the four aircraft mentioned, the A3D produces the greatest amount of noise and the most vibration effects on the ground. From the standpoint of the underlying property owner, the aircraft next to the A3D in objectionable characteristics is the F2H2 Banshee. The Banshee’s approximate basic weight was 14,000 pounds, and its two jet engines developed a total thrust of 6,800 pounds. By comparison, the A3D aircraft is a Heavy Attack Bomber weighing 38,500 pounds, and its two jet engines develop a total thrust of 21,000 pounds.

The Banshee engines are enclosed in the fuselage of the aircraft creating a slight muffling sound as compared to the A3D which has its engines hung in exposed pods beneath, the wing. The AJ, which was the only jet-type aircraft based at the Station between October 1953 and Jannary 1957, was less noisy than either the Banshee or the A3D. However, it is fair to characterize the AJ as a noisy aircraft in its own right, not only because of its single turbojet engine but because of the cavitation effect from its two propellers driven by reciprocating engines.

Nonetheless, the record establishes that the noise and vibration effects created by a low-flying A3D is significantly greater than that produced by any other type of aircraft previously based at the Station. 7. As to frequency of takeoffs and landings, the record shows that, after the Station was reactivated in 1951 and the original 18 jet aircraft had arrived, they accomplished an average of 30 to 40 takeoffs and landings each day during normal operations. By 1953 when there were 24 jet aircraft based at the Station, takeoffs and landings during normal operations had increased to between 50 and 70 per day.

However, on some days and nights, there might be as many as 150 to 180 landings and takeoffs by these early jet aircraft, especially during the times that their pilots were practicing carrier qualification landings. After the assignment of the A3D aircraft to the Station in January 1957, the number of such aircraft operating to and from the airfield has ranged from 45 to 75. An increase in the number of takeoffs and landings resulted.

The following table shows the frequency of takeoffs and landing at the Station by both conventional and jet aircraft during the period January 1953 through September 1961: A part of the Station’s primary mission was familiarizing Navy pilots with, new type aircraft and training them to simulate on land the precision techniques required for safe and accurate landings on the flight decks of aircraft carriers. Even very experienced carrier pilots need to practice these techniques as often as possible.

During such training periods (at the times complained of herein), as many as three to four A3D aircraft were flown in the traffic pattern around the Station, continually executing what are known as “touch- and-go” landings. This is a procedure called “field mirror landing practice” (FMLP), and when it is underway, both during the day and night, the frequency rate of landings and takeoffs is considerably increased. Parcels in Group A 8. Parcels 1, 5, 6, 7, 8, 9, 16, and 18 in Group A are unimproved land.

Parcels 2, 3, 4, 11, 12, 14, 15, and 17 in Group A are improved by single-story dwellings (containing 4 to 6 rooms) and, in some instances, by garages. These parcels in Group A, together with numerous other parcels not involved in the present action, were subjected in 1953 to an avigation easement through judicial proceedings known as Case No. 627 in the United States District Court, Southern District of Florida, Orlando Division, entitled United States of America v. 1J¡3 Acres of Land, etc.

In Case No. 627, the Declaration of Taking was filed October 29, 1953, and the interest or estate taken by the United States was described as follows: * * * a perpetual easement and right of way for the free and unobstructed passage of aircraft in, through and over said lands situated above the glide angle plane described in Exhibit “A” together with the right in perpetuity to clear and keep clear the lands described in Exhibit “A” of any and all trees, structures or other obstructions infringing upon or extending above the glide angle plane described in said Exhibit “A” and the right to install and maintain on any obstacle or structure existing on said lands such obstruction lights as may be found necessary for the safe operation of aircraft over said lands, together with the perpetual right of ingress and egress for the purpose of exercising the rights herein acquired.

Judgments were subsequently entered on the complaint in condemnation and declaration of taking which conferred upon the United States the rights which it sought to acquire. However, on February 18, 1959, further proceedings were held in the case with respect to property valuation and just compensation.

Those proceedings also involved certain written interrogatories and a motion for more definite statement filed by the attorney for certain land owners with a view to obtaining clarification as to whether the taking purported to include damages accruing at a later date and as to whether the condemnation proceedings would bar the present action.

After hearing argument of counsel, the United States District Judge denied the motion for more definite statement and stated: I think the termination of the trial and judgment in this suit will not prevent the land owner from coming into the Court of Claims any time with any claim that has accrued since the taking of this property. It might even get greater; two, three, five years from now it might amount to a complete taking, or it might amount to

an act, might amount to the result of

an act on the part of this military activity that would completely destroy any useful value of the property.

Then, pursuant to stipulation of counsel, the United States District Judge, on May 27, 1959, entered a formal order nunc fro tuno, reading in pertinent part, as follows: * * * and the Court being of the further opinion that, the proceedings in the instant cause will in no wise affect the right of the defendants to proceed before the Court of Claims of the United States for damages, if any they have, suffered by virtue of the activities of the Plaintiff since the Declaration of Taking in this case: It is therefore ordered, that the Motions of the Defendants to require the Plaintiff to respond to written interrogatories and for a more definite statement be, and the same hereby are, denied.

The aforesaid judgments conferred upon the United States a perpetual easement for the flight of aircraft over tbe parcels in Group A at elevations as low as 29 feet above the ground. Pursuant to a compromise settlement in the case, the owners of the parcels in Group A were paid compensation for such easement in the following amounts: Parcels 1 and 2_$2,400 Parcel 3_ 1,450 Parcel 4- 1, 600 Parcels 5, 6, 7, 8, and 9_ 2, 000 Parcel 11_ 500 Parcel 12_ 1, 000 Parcel 14_ 2, 200 Parcel 15_ 1, 000 Parcel 16_ 200 Parcel 17_ 800 Parcel 18_ 500 9.

All Group A parcels are located wholly within the approach zone for Eunway 9-27, except parcels 16 and 17. In landing on Eunway 9 (to the east), A3D aircraft fly regularly over these parcels at heights above the ground ranging from 156 feet to 225 feet. In taking off from Eun-way 27 (to the west), these aircraft fly regularly over these parcels at heights above the ground ranging from 300 feet to 390 feet. During landing approach of the A3D aircraft, the pilot normally operates the engines at approximately one-fourth of their available power.

During preflight run-up and takeoff, however, the A3D engines are operated at full power, and the climbout after takeoff is made as steeply as safety considerations will permit. The approved FMLP traffic pattern for landing of A3D aircraft on Eunway 9 consists of a downwind leg flown on a heading of 270 degrees parallel to and about two miles south of the runway at an altitude of 600 feet above the ground. Over a landmark approximately three miles southwest of the runway, the pilot starts a 180-degree turn to the right maintaining altitude of 600 feet into the final approach.

During the final approach, and when over an area approximately one mile and a half from the desired point of touchdown, a gradual descent is commenced. With the aid of an instrument on the airport known as a field mirror, the pilot endeavors during the entire final approach to hold the descent of his aircraft to an angle of 3% degrees.

If this final approach is executed with the desired precision, the aircraft will pass over the area in which all Group A parcels are located at altitudes ranging from nearly 300 feet (in case of the westernmost parcel) to slightly over 150 feet (in case of the parcels adjacent to the Station.) During normal takeoff to the west from Runway 27, the aircraft will pass over the area of the Group A parcels on a climb angle of about five degrees and thus at progressively higher altitudes than those described in the landing approach.

Although there was some pilot testimony to the contrary, defendant’s documentary evidence establishes that in normal maneuvers, the altitude of aircraft over the Group A parcels even during takeoff will range from 300 to 390 feet. Moreover, as stated above, during takeoff the A3D aircraft engines are operated at full available power, whereas during approach for landing they are operated at one-fourth of their available power. 10. A large number of witnesses testified with respect to the noise and vibration effects experienced during flights by A3D aircraft at low altitudes over the Group A parcels.

Their respective descriptions of the ground effects produced by these overflights were generally consistent (except as to estimates of altitude) and are susceptible of summarization, as follows. The first indication of an approach by an A3D is a tremendously high-pitched, screeching and “eerie” sound; as the aircraft passes directly overhead, there is a terrific thunder-like roar accompanied by jet fumes and considerable vibration of structures on the ground.

During overflights, it is nearly impossible to conduct a conversation or to talk on the telephone; one owner holds her ears closed because the noise hurts them; television reception becomes so distorted that enjoyment of programs is impossible; for these reasons, some residents do not bother to have either a telephone or a television set.

During night flights, which are sometimes conducted until 2:30 a.m., it is very difficult for residents to obtain any sleep even with, the use of artificial aids; entertainment of guests during sueli. evenings is useless and embarrassing since but little conversation is possible. The effects of vibration and jet fumes are reflected by noticeable shaking of underlying structures, occasional cracking of window panes, some loosening of trim and baseboards, more cleaning and painting than otherwise would be necessary, and disagreeable and sickening odors.

In addition to the foregoing, some of the property owners have experienced considerable anxiety and fear that they might be hit by low-flying A3Ds on landing approach. To the inexpert observer on the ground, these relatively large and noisy aircraft can give the impression that they are headed directly at the observer and produce in him some momentary panic. These feelings of anxiety have tended to increase since October 1961 when two of the aircraft collided in the traffic pattern and crashed a little over a mile west of the Group A parcels. 11.

The basing of the A3D aircraft at the Station in January 1957 had an adverse impact on the use and enjoyment of the parcels in Group A. Prior to that tune the owners and residents, while disliking it, found it possible “to live with” the disturbance created by overflights of other aircraft, including the AJ. However, the A3D is not only noisier, larger, and heavier than any aircraft previously based at the Station, but, as will be observed from the table set forth in finding 7, supra, the number of takeoffs and landings per month has increased substantially since 1956.

There does not appear to have been any material variance in the altitudes of normal flights over the Group A parcels either by the A3D or previous aircraft. The A3D flights remained within the lower limits established by the easement acquired by defendant in 1953 as described above. The adverse effect on Group A parcels commencing in January 1957 was not due to any differences in the path of flight but to differences in the aircraft involved. Parcels in Group B 12. The parcels in Group B are all improved by single-family frame bouses and have been assigned numbers 23,25, and 32.

All of these parcels are located within the confines of the traffic pattern described in finding 9, supra, but only parcel 32 is located within the approach zone to the western end of Runway 9-27. 13. Parcel 32 is situated approximately 2,000 feet west of the blast fence erected at the western end of Runway 9-27. During normal landings, A3D aircraft pass over this property at a height of 225 feet, and during normal takeoffs the aircraft pass over the property at a height of 450 feet.

This property was not included within the area subjected to an avigation easement by defendant’s condemnation action described above. With respect to increased noise and television interference, the periptery effects from A3D aircraft flying over this property are similar to those described above for Group A parcels, and have adversely affected the use and enjoyment of the property. 14. The owners of parcels 23 and 25 suffer from the same general effects previously described with respect to Group A parcels insofar as noise, television interference, and anxiety are concerned.

As stated previously, however, these parcels lie outside the approach zone to Runway 9-27, being located approximately 2,000 feet (parcel 23) and 1,700 feet (parcel 25) south of the centerline of Runway 9-27, as extended. During normal landings and takeoffs, the A3D aircraft do not pass directly over these properties, but occasionally, as a result of non-standard maneuvering, A3D aircraft will pass over these parcels at heights ranging between 190 feet in landing and 400 feet in takeoff. Parcels in Groups <7, D, and E 15. The parcels contained within Groups C, D, and E may be described as follows: (

a) Group C comprises parcels 21 and 22 which are improved by single-family frame houses. They are located within the traffic pattern above described for Runway 9-27 but are outside the approach zone, being situated some 8,000 to 3,500 feet south of the centerline of the runway, as extended. (

b) Group D comprises parcel 24, which is an unimproved property located within the traffic pattern but outside the approach zone. It is located approximately the same distance from the extended centerline of the runway as the Group C properties, but is about 1,000 feet to the west of those properties. (

c) The Group E parcels are comprised of parcels 40 to 46, inclusive. Parcels 40 and 46 are unimproved properties. Parcels 41 to 45, inclusive, are improved by single-family houses. All these parcels are located outside both the traffic pattern and the approach, zone. Plowever, they are contiguous to the extreme northwest corner of the Station and are located approximately 1,000 to 1,200 feet due north of the western end of Runway 9-27 where the blast fence is erected.

The plaintiffs who own these properties claim a different date of taking and a different type of taking by defendant than do the owners of parcels in Groups A and B.

As previously noted, all of the parcels in Groups O, D, and E are located outside the approach zone to Runway 9-27, and with respect to these parcels, the plaintiffs allege that, although their use and enjoyment of the properties were adversely affected by flights of A3D aircraft over them commencing January 25, 1957, the interference to the use and enjoyment of the properties did not become intolerable and the extent of the damage did not become fully ascertainable until the defendant, on March 8, 1959, placed into operation the western extension of Runway 9-27 created by overrun additions totaling 2,150 feet.

It is alleged that when jet aircraft prepared for takeoff from west to east at the blast fence on Runway 9, as so extended, the noise resulting therefrom damaged these parcels through the physical invasion thereof by sound waves. 16. Occasionally, A3D aircraft have flown directly over all parcels in Groups C, D, and E at altitudes of less than 300 feet. Such overflights, however, are not standard or frequent. They generally result from an emergency “wave-off” during landing approach. While these infrequent overflights are bothersome, they are not the basis of complaint here.

Instead, as stated, it is the preflight activity of the A3Ds at the blast fence preparatory to takeoff of which these plaintiffs complain. In preparing an A3D aircraft for takeoff to the east, the pilot taxis it at a speed of about ten miles per hour to the extreme western end of the overrun portion of the runway and turns the aircraft to takeoff position heading east on Runway 9. The tail of the aircraft will then be pointing in the general direction of the nearby blast fence.

Thereupon, the pilot holds the aircraft in a stationary position and performs an engine check known as a “full power runup.” Both jet engines will accelerate to their full power in 12 seconds, and they are held at that power setting for about 20 seconds more while the pilot completes his preflight check list. The owners of the Group E parcels, in particular, consider that the foregoing preflight activities are more detrimental to the use and enjoyment of their properties than are direct overflights because of the longer period of time they are subjected to noise and vibration from the 30-second full power runup.

During this period of time the noise is terrific and “indescribable”; the houses shake and the windows rattle; flames and fumes are emitted from the engines; disturbing fumes and odors flow onto the properties and into the houses, especially when the wind is from the south or southeast; vibrations cause ripe citrus fruit to fall from trees growing on the properties; television reception is very poor, and it is nearly impossible to carry on conversations either in person or on the telephone; when night takeoffs are underway (which are sometimes performed at intervals of about three minutes), the residents on these properties are unable to sleep; on several occasions, clouds of dust have been thrown into the area restricting visibility sufficiently that drivers of automobiles on nearby streets must slow down to avoid possible collision.

Findings With Respect to Damages 17. The parties are not in disagreement that the highest and best use for most of the parcels in question is for single family residences of low to medium cost. However, there is wide divergence in the expert testimony as to the effect of A3D aircraft on fair market values of the properties. The spectacular differences in expert opinion appear to have resulted from differences in the underlying assumptions made by the experts.

Plaintiff’s expert gave no specific consideration to the impact upon the parcels of the preexisting avigation easement acquired by defendant as of October 29, 1953.

He did not do so because of a belief that his “market data” appraisal based upon comparisons between sales within the area would necessarily reflect the impact of the easement. ‘While some of the sales selected by him for comparison were of properties reasonably comparable to the parcels here involved, others were not comparable due to location outside the easement area, differences in the improvements involved, and peculiarities attaching to the compared sale.

On the other hand, defendant’s experts appear to have based their conclusions that fair market values of the parcels had not been adversely affected upon their assumptions, as a matter of law, that (1) as to Group A parcels within the 1953 avigation easement, no greater taking could, or did, occur; and (2) as to all other groups of parcels, no compensable depreciation in value could, or did, occur from lateral disturbance only. 18.

With respect to the specific parcels involved, the experts (with one exception) do not appear to have attached any particular significance to the effects on the general economy of Sanford flowing from the reactivation of the Naval Air Station in May 1951. The record demonstrates, however, that the reactivation of the station had a generally favorable and significant effect on the local economy. This effect was reflected by steadily increasing bank deposits, utilities output, retail sales, Naval personnel, military payroll, and attendant services.

Such growth factors tend in a general way to increase the demand for real estate and to enhance its value. Also, subdivision developments tend to be stimulated. At the time of the trial herein, a new residential subdivision was under construction just outside the approach zone to Runway 9-27 and immediately to the south of the Group A parcels. 19.With respect to Group A parcels, the record as a whole supports resultant diminutions in fair market values as follows: Parcels 1 and 2 (Ross D. Hunter, owner)_$2, 000 Parcel 3 (Grace E.

Avery, owner)_ 1,500 Parcel 4 (Estate of Theodore Burnett, owner)_ 1,500 Parcels 5, 6, 7, 8, and 9_“ “ “_ 2, 000 Parcel 11 (Albert Walter & Dorothy Rothman, owners) _ 1,000 Parcel 12 (J. W. Roehlk et ux., owners)_ 1,500 Parcel 14 (Neil S. Pruden et ux., owners)_ 3,000 Parcel 15 (Annie E. Humphrey, owner)_ 1,500 Parcel 16 (L. W. Salvail et ux., owners)_ 300 Parcel 17 (William L. Hensley et ux., owners)_ 1,000 Parcel 18 (George A. Maffett, owner)_ 500 20. Other than the Group A parcels, the only other property located within the approach zone to Runway 9-27 is parcel 32, (Henry L. Young et ux., owners).

As previously found, this property was not included within the avigation easement acquired by defendant, but A3D aircraft fly over the parcel both low and frequently. See finding 13, supra. Reasonably comparable sales in the area before and after January 25, 1957, coupled with other relevant data in the record, show the resultant diminuition in fair market value of parcel 32 as of January 25,1957, to be $2,000. 21. The parcels remaining for consideration are parcels 23 and 25 (Group B), parcels 21 and 22 (Group

C) parcel 24 (Group D), and parcels 40,41, 42,43,44,45, and 46 (Group E). All these parcels are located outside the approach zone for Runway 9-27. Direct overflights by defendant’s aircraft are not authorized, except in emergency, and are not low and frequent. As previously found, however, the operation of A3D aircraft causes lateral disturbances to these properties (in varying degrees) from noise, vibration, and fumes. See findings 14 and 16, supra.

The record as a whole supports resultant diminutions in fair market values, as follows: Parcel 21_ Parcel 22_ Parcel 23-CO Parcel 24_ Parcel Parcels 40 and 41_ rH* Parcel 42_ Parcel 43- Parcels 44. 45, and 46-tH CONCLUSION OF LAW Upon the foregoing findings of fact which are made a part of the judgment herein, the court concludes as a matter of law that plaintiffs named in findings 19 and 20 are entitled to recover, and judgment is entered for them in the amounts so listed, plus a sum computed at four (4) percent per annum from January 25, 1957, to date of payment, as part of just compensation.

Defendant is vested with a further perpetual easement of flight for aircraft operated over the parcels in Group A, and parcel 82 in Group B. With respect to the claims of the remaining plaintiffs the petition is dismissed. Overrun areas are used only for the commencement of takeoff runs by heavy aircraft. They also can be used on emergency runouts during aborted takeoffs. The overrun areas were added to the western end of Runway 9-27 bringing the end of the runway within 200 feet of the outer perimeter of the Air Station.

The runway usable for west-east landings commenced at the “threshold” 2,150 feet from the western edge of the Station.

Our conclusion in this case that the condemned easement was limited to the use of aircraft not constituting a further taking is aided by the order entered by the District Judge on May 27, 1959 which opined that: * * * the proceedings in the instant case will in no wise affect the right of the defendants to proceed before the Court of Claims of the united States for damages, if any they have suffered by virtue of the activities of the plaintiff since the Declaration of Talcing in this case: * * * [Emphasis added, see finding 8 for complete order} Parcel 32 la only distinguishable from the parcels of Group A in that it was not subject to any easement through the 1953 condemnation action.

Defendant concedes that an easement over parcel 32 was taken. The Federal Aviation Program of 1958, 49 U.S.C. §§ 1301(24) and 1348(a). Pertinent regulations are found in 14 C.F.R. § 60.17. The original claims by plaintiffs as to parcels 10, 26, 31, and 33 have been voluntarily dismissed and are no longer involved in this case. In aviation usage, airport runways are assigned numbers reflecting the true direction of the runway in degrees of the compass, with the last zero removed. Hence, Runway 9-27 (the runway involved herein) is a paved strip 200 feet in width and extending east (090°) and west (270°).

An aircraft taking off or landing towards the east on a true heading of 090° is said to be using “Runway 9.” Conversely, an aircraft taking off or landing towards the west on the same runway, but on a true heading of 270°, is said to be using “Runway 27.” This reactivation of the Station on May 1 was the occasion for a formal ceremony to which the public was invited by the Navy. During the late morning, squadrons of aircraft arrived) and, upon receiving clearance from the Base Operations Officer, executed a high speed, low altitude pass over the Station.

This aerobatic maneuver appears to have caused some momentary distress among the visitors at the Station and occasioned a few telephone calls by residents complaining of broken windows in town. Navy personnel attribute this colloquial name to the loud, screaming noise of the aircraft’s jet engines. At all material times, as might be expected in case of an active military airfield, the Station has been visited by transient military aircraft of various types. Some were equipped with reciprocating engines, some with turbojet engines, and some with a combination of both types of power plant..

The frequency of landings and takeoffs by such transient aircraft was described by the Commanding Officer of the Station as averaging between five and ten per day. The record contains no scientific data from which a finding can be made as to comparative decibel levels. In view of this order, the stipulation and arguments in the condemnation case, the defendant does not now rely upon the defense of res judicata as asserted in its answer. But the defendant does contend that the flights by A3D aircraft and the increase in the number of flights did not cause the value of the parcels in Group A to diminish.

The latter two parcels are located on the southern edge of the approach zone with about one-fourth of parcel 16 projecting northward, into the zone. The standard visual traffic pattern differs from the FMLP traffic pattern only in that the downwind leg is flown at an altitude of 1,000 feet. The additional 400 feet of altitude is dissipated in the course of executing the 180-degree right turn to final approach. Also, through the courtesy of counsel, the Trial Commissioner -was conducted on a tour of the area involved and had the opportunity of observing several takeoffs and landings by A3D aircraft.

One property owner did testify that, while most of the aircraft previously based at the Station were small training planes of the propeller type, he recalled that the E2H2 Banshee made “a howling noise, similar to the ones they have now.” As stated in finding 4, supra, all F2H2 aircraft had left the Station by August 1952. These properties are in the approach zone for another runway, namely, Runway 33-81. However, that runway is closed and has not been used for several years due to deterioration of its surface.

As an example of the extreme positions taken, plaintiffs’ expert believed that parcels 1, 2, 6, 7, 8, and 9 (comprising approximately 12 to 13 acres) had depreciated from a total “before value” of $24,760 to an “after value” of only $60. Conversely, defendant’s experts -were unanimous in their opinions that the flights of A3D aircraft over and about the properties had no depreciating effect -whatever on their fair market values.