The promoter, owner, and lessor of an airport is the one who takes an air easement in the constitutional sense, because it decides where the airport is built, what runways it needs, their direction and length, and what land and navigation easements are needed. The federal government takes nothing; it is the local authority which decides to build an airport, and where it is to be located.
The homeowners alleged that regular and continuous low altitude flights over their homes caused their property to be undesirable and unbearable for their residential use. The county did not dispute that there was a taking but argued that either the airlines or the Civil Aeronautics Administration as authorized representative of the United States were liable. The court held that there was a "taking" of the airspace over the homeowners' property for which they were entitled to receive just compensation and that the county was the liable taker.
Did the respondent take an air easement over petitioner's property for which it must pay just compensation as required by the Fourteenth Amendment?
The County has taken an air easement over petitioner's property for which it must pay just compensation as required by the Fourteenth Amendment.
It is argued that though there was a "taking," someone other than respondent was the taker -- the airlines or the C. A. A. acting as an authorized representative of the United States. We think, however, that respondent, which was the promoter, owner, and lessor of the airport, was in these circumstances the one who took the air easement in the constitutional sense. Respondent decided, subject to the approval of the C. A. A., where the airport would be built, what runways it would need, their direction and length, and what land and navigation easements would be needed. The Federal Government takes nothing; it is the local authority, which decides to build an airport vel non, and where it is to be located. We see no difference between its responsibility for the air easements necessary for operation of the airport and its responsibility for the land on which the runways were built. Nor did the Congress when it designed the legislation for a National Airport Plan. For, as we have already noted, Congress provided in 49 U. S. C. § 1109 for the payment to the owners of airports, whose plans were approved by the Administrator, of a share of "the allowable project costs," including the "costs of acquiring land or interests therein or easements through or other interests in air space." § 1112 (a)(2). A county that designed and constructed a bridge would not have a usable facility unless it had at least an easement over the land necessary for the approaches to the bridge. Why should one who designs, constructs, and uses an airport be in a more favorable position so far as the Fourteenth Amendment is concerned? That the instant "taking" was "for public use" is not debatable. For respondent agreed with the C. A. A. that it would operate the airport "for the use and benefit of the public," that it would operate it "on fair and reasonable terms and without unjust discrimination," and that it would not allow any carrier to acquire "any exclusive right" to its use.