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GRIGGS V. ALLEGHENY COUNTY 369 U.S. 84 


NO. 81.  ARGUED JANUARY 16, 1962 - DECIDED MARCH 5, 1962 - 402 PA. 411,
168 A.2D 123, REVERSED. 


ALLEGHENY COUNTY OWNS AND MAINTAINS THE GREATER PITTSBURGH AIRPORT AT
A SITE IT ACQUIRED TO PROVIDE AIRPORT FACILITIES UNDER THE FEDERAL
AIRPORT ACT.  IN ONE APPROACH ZONE OR PATH OF GLIDE, THE PATTERN OF
FLIGHT ESTABLISHED BY THE CIVIL AERONAUTICS ADMINISTRATOR FOR AIRCRAFT
LANDING AT AND DEPARTING FROM THE AIRPORT REQUIRES AIRCRAFT TO FLY
REGULARLY AND FREQUENTLY AT VERY LOW ALTITUDES OVER PETITIONER'S
RESIDENTIAL PROPERTY.  THE RESULTING NOISE, VIBRATIONS AND DANGER
FORCED PETITIONER AND HIS FAMILY TO MOVE FROM THEIR HOME.  HELD:  THE
COUNTY HAS TAKEN AN AIR EASEMENT OVER PETITIONER'S PROPERTY FOR WHICH
IT MUST PAY JUST COMPENSATION AS REQUIRED BY THE FOURTEENTH AMENDMENT. 
PP. 84-90. 

GRIGGS V. ALLEGHENY COUNTY. 

CERTIORARI TO THE SUPREME COURT OF PENNSYLVANIA. 

MR. JUSTICE DOUGLAS DELIVERED THE OPINION OF THE COURT. 

THIS CASE IS HERE ON A PETITION FOR A WRIT OF CERTIORARI TO THE
SUPREME COURT OF PENNSYLVANIA WHICH WE GRANTED (366 U.S. 943) BECAUSE
ITS DECISION (402 PA. 411, 168 A.2D 123) SEEMED TO BE IN CONFLICT WITH
UNITED STATES V. CAUSBY, 328 U.S. 256.  THE QUESTION IS WHETHER
RESPONDENT HAS TAKEN AN AIR EASEMENT OVER PETITIONER'S PROPERTY FOR
WHICH IT MUST PAY JUST COMPENSATION AS REQUIRED BY THE FOURTEENTH
AMENDMENT.  CHICAGO, B.&Q.R. CO. V. CHICAGO, 166 U.S. 226, 241.  THE
COURT OF COMMON PLEAS, PURSUANT TO CUSTOMARY PENNSYLVANIA PROCEDURE,
APPOINTED A BOARD OF VIEWERS TO DETERMINE WHETHER THERE HAD BEEN A
"TAKING" AND, IF SO, THE AMOUNT OF COMPENSATION DUE.  THE BOARD OF
VIEWERS MET UPON THE PROPERTY; IT HELD A HEARING, AND IN ITS REPORT
FOUND THAT THERE HAD BEEN A "TAKING" BY RESPONDENT OF AN AIR EASEMENT
OVER PETITIONER'S PROPERTY AND THAT THE COMPENSATION PAYABLE (DAMAGES
SUFFERED) WAS $12,690.  THE COURT OF COMMON PLEAS DISMISSED THE
EXCEPTIONS OF EACH PARTY TO THE BOARD'S REPORT.  ON APPEAL, THE SUPREME
COURT OF PENNSYLVANIA DECIDED, BY A DIVIDED VOTE, THAT IF THERE WERE A
"TAKING" IN THE CONSTITUTIONAL SENSE, THE RESPONDENT WAS NOT LIABLE. 

RESPONDENT OWNS AND MAINTAINS THE GREATER PITTSBURGH AIRPORT ON LAND
WHICH IT PURCHASED TO PROVIDE AIRPORT AND AIR-TRANSPORT FACILITIES. 
THE AIRPORT WAS DESIGNED FOR PUBLIC USE IN CONFORMITY WITH THE RULES
AND REGULATIONS OF THE CIVIL AERONAUTICS ADMINISTRATION WITHIN THE
SCOPE OF THE NATIONAL AIRPORT PLAN PROVIDED FOR IN 49 U.S.C. SEC. 1101
ET SEQ. BY THIS ACT THE FEDERAL ADMINISTRATOR IS AUTHORIZED AND
DIRECTED TO PREPARE AND CONTINUALLY REVISE A "NATIONAL PLAN FOR THE
DEVELOPMENT OF PUBLIC AIRPORTS."  SEC. 1102(A).  FOR THIS PURPOSE HE IS
AUTHORIZED TO MAKE GRANTS TO "SPONSORS" FOR AIRPORT DEVELOPMENT.  SECS.
1103, 1104.  PROVISION IS MADE FOR APPORTIONMENT OF GRANTS FOR THIS
PURPOSE AMONG THE STATES.  SEC. 1105.  THE APPLICATIONS FOR PROJECTS
MUST FOLLOW THE STANDARDS PRESCRIBED BY THE ADMINISTRATOR.  SEC. 1108. 

IT IS PROVIDED IN SEC. 1108(D) THAT:  "NO PROJECT SHALL BE APPROVED
BY THE ADMINISTRATOR WITH RESPECT TO ANY AIRPORT UNLESS A PUBLIC AGENCY
HOLDS GOOD TITLE, SATISFACTORY TO THE ADMINISTRATOR, TO THE LANDING
AREA OF SUCH AIRPORT OR THE SITE THEREFOR, OR GIVES ASSURANCE
SATISFACTORY TO THE ADMINISTRATOR THAT SUCH TITLE WILL BE ACQUIRED." 
THE UNITED STATES AGREES TO SHARE FROM 50% TO 75% OF THE "ALLOWABLE
PROJECT COSTS," DEPENDING, SO FAR AS MATERIAL HERE, ON THE CLASS AND
LOCATION OF THE AIRPORT.  SEC. 1109. 

ALLOWABLE COSTS PAYABLE BY THE FEDERAL GOVERNMENT INCLUDE "COSTS OF
ACQUIRING LAND OR INTERESTS THEREIN OR EASEMENTS THROUGH OR OTHER
INTERESTS IN AIR SPACE  ...  ."  SEC. 1112(A)(2). 

RESPONDENT EXECUTED THREE AGREEMENTS WITH THE ADMINISTRATOR OF CIVIL
AERONAUTICS IN WHICH IT AGREED, AMONG OTHER THINGS, TO ABIDE BY AND
ADHERE TO THE RULES AND REGULATIONS OF C.A.A.  AND TO "MAINTAIN A
MASTER PLAN OF THE AIRPORT," INCLUDING "APPROACH AREAS."  IT WAS
PROVIDED THAT THE "AIRPORT APPROACH STANDARDS TO BE FOLLOWED IN THIS
CONNECTION SHALL BE THOSE ESTABLISHED BY THE ADMINISTRATOR"; AND IT WAS
ALSO AGREED THAT RESPONDENT "WILL ACQUIRE SUCH EASEMENTS OR OTHER
INTERESTS IN LANDS AND AIR SPACE AS MAY BE NECESSARY TO PERFORM THE
COVENANTS OF THIS PARAGRAPH."  THE "MASTER PLAN" LAID OUT AND SUBMITTED
BY RESPONDENT INCLUDED THE REQUIRED "APPROACH AREAS"; AND THAT "MASTER
PLAN" WAS APPROVED.  ONE "APPROACH AREA" WAS TO THE NORTHEAST RUNWAY. 
AS DESIGNED AND APPROVED, IT PASSED OVER PETITIONER'S HOME WHICH IS
3,250 FEET FROM THE END OF THAT RUNWAY.  THE ELEVATION AT THE END OF
THAT RUNWAY IS 1,150.50 FEET ABOVE SEA LEVEL; THE DOOR SILL AT
PETITIONER'S RESIDENCE, 1,183.64 FEET; THE TOP OF PETITIONER'S CHIMNEY,
1,219.64 FEET.  THE SLOPE GRADIENT OF THE APPROACH AREA IS AS 40 IS TO
3,250 FEET OR 81 FEET, WHICH LEAVES A CLEARANCE OF 11.36 FEET BETWEEN
THE BOTTOM OF THE GLIDE ANGLE AND PETITIONER'S CHIMNEY. 

THE AIRLINES THAT USE THE AIRPORT ARE LESSEES OF RESPONDENT; AND THE
LEASES GIVE THEM, AMONG OTHER THINGS, THE RIGHT "TO LAND" AND "TAKE
OFF."  NO FLIGHTS WERE IN VIOLATION OF THE REGULATIONS OF C.A.A.; NOR
WERE ANY FLIGHTS LOWER THAN NECESSARY FOR A SAFE LANDING OR TAKE-OFF. 
THE PLANES TAKING OFF FROM THE NORTHEAST RUNWAY OBSERVED REGULAR FLIGHT
PATTERNS RANGING FROM 30 FEET TO 300 FEET OVER PETITIONER'S RESIDENCE;
AND ON LET-DOWN THEY WERE WITHIN 53 FEET TO 153 FEET. 

ON TAKE-OFF THE NOISE OF THE PLANES IS COMPARABLE "TO THE NOISE OF A
RIVETING MACHINE OR STEAM HAMMER."  ON THE LET-DOWN THE PLANES MAKE A
NOISE COMPARABLE "TO THAT OF A NOISY FACTORY."  THE BOARD OF VIEWERS
FOUND THAT "THE LOW ALTITUDE FLIGHTS OVER PLAINTIFF'S PROPERTY CAUSED
THE PLAINTIFF AND OCCUPANTS OF HIS PROPERTY TO BECOME NERVOUS AND
DISTRAUGHT, EVENTUALLY CAUSING THEIR REMOVAL THEREFROM AS UNDESIRABLE
AND UNBEARABLE FOR THEIR RESIDENTIAL USE."  JUDGE BELL, DISSENTING
BELOW, ACCURATELY SUMMARIZED THE UNCONTROVERTED FACTS AS FOLLOWS: 

"REGULAR AND ALMOST CONTINUOUS DAILY FLIGHTS, OFTEN SEVERAL MINUTES
APART, HAVE BEEN MADE BY A NUMBER OF AIRLINES DIRECTLY OVER AND VERY,
VERY CLOSE TO PLAINTIFF'S RESIDENCE.  DURING THESE FLIGHTS IT WAS OFTEN
IMPOSSIBLE FOR PEOPLE IN THE HOUSE TO CONVERSE OR TO TALK ON THE
TELEPHONE.  THE PLAINTIFF AND THE MEMBERS OF HIS HOUSEHOLD (DEPENDING
ON THE FLIGHT WHICH IN TURN SOMETIMES DEPENDED ON THE WIND) WERE
FREQUENTLY UNABLE TO SLEEP EVEN WITH EAR PLUGS AND SLEEPING PILLS; THEY
WOULD FREQUENTLY BE AWAKENED BY THE FLIGHT AND THE NOISE OF THE PLANES;
THE WINDOWS OF THEIR HOME WOULD FREQUENTLY RATTLE AND AT TIMES PLASTER
FELL DOWN FROM THE WALLS AND CEILINGS; THEIR HEALTH WAS AFFECTED AND
IMPAIRED, AND THEY SOMETIMES WERE COMPELLED TO SLEEP ELSEWHERE. 
MOREOVER, THEIR HOUSE WAS SO CLOSE TO THE RUNWAYS OR PATH OF GLIDE THAT
AS THE SPOKESMAN FOR THE MEMBERS OF THE AIRLINES PILOT ASSOCIATION
ADMITTED 'IF WE HAD ENGINE FAILURE WE WOULD HAVE NO COURSE BUT TO PLOW
INTO YOUR HOUSE.'"  402 PA. 411, 422, 168 A.2D 123, 128-129. 

WE START WITH UNITED STATES V. CAUSBY, SUPRA, WHICH HELD THAT THE
UNITED STATES BY LOW FLIGHTS OF ITS MILITARY PLANES OVER A CHICKEN FARM
MADE THE PROPERTY UNUSABLE FOR THAT PURPOSE AND THAT THEREFORE THERE
HAD BEEN A "TAKING," IN THE CONSTITUTIONAL SENSE, OF AN AIR EASEMENT
FOR WHICH COMPENSATION MUST BE MADE.  AT THE TIME OF THE CAUSBY CASE,
CONGRESS HAD PLACED THE NAVIGABLE AIRSPACE IN THE PUBLIC DOMAIN,
DEFINING IT AS "AIRSPACE ABOVE THE MINIMUM SAFE ALTITUDES OF FLIGHT
PRESCRIBED" BY THE C.A.A. 44 STAT. 574.  WE HELD THAT THE PATH OF THE
GLIDE OR FLIGHT FOR LANDING OR TAKING OFF WAS NOT THE DOWNWARD REACH OF
THE "NAVIGABLE AIRSPACE."  328 U.S., AT 264.  FOLLOWING THE DECISION IN
THE CAUSBY CASE, CONGRESS REDEFINED "NAVIGABLE AIRSPACE" TO MEAN
"AIRSPACE ABOVE THE MINIMUM ALTITUDES OF FLIGHT PRESCRIBED BY
REGULATIONS ISSUED UNDER THIS CHAPTER, AND SHALL INCLUDE AIRSPACE
NEEDED TO INSURE SAFETY IN TAKE-OFF AND LANDING OF AIRCRAFT."  72 STAT.
739, 49 U.S.C. SEC. 1301(24).  BY THE PRESENT REGULATIONS (FN1) THE
"MINIMUM SAFE ALTITUDES" WITHIN THE MEANING OF THE STATUTE ARE DEFINED,
SO FAR AS RELEVANT HERE, AS HEIGHTS OF 500 FEET OR 1,000 FEET, "EXCEPT
WHERE NECESSARY FOR TAKE-OFF OR LANDING."  BUT AS WE SAID IN THE CAUSBY
CASE, THE USE OF LAND PRESUPPOSES THE USE OF SOME OF THE AIRSPACE ABOVE
IT.  328 U.S., AT 264.  OTHERWISE NO HOME COULD BE BUILT, NO TREE
PLANTED, NO FENCE CONSTRUCTED, NO CHIMNEY ERECTED.  AN INVASION OF THE
"SUPERADJACENT AIRSPACE" WILL OFTEN "AFFECT THE USE OF THE SURFACE OF
THE LAND ITSELF."  328 U.S., AT 265. 

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 (FN2) 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. SEC. 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."  SEC. 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. 

THE GLIDE PATH FOR THE NORTHEAST RUNWAY IS AS NECESSARY FOR THE
OPERATION OF THE AIRPORT AS IS A SURFACE RIGHT OF WAY FOR OPERATION OF
A BRIDGE, OR AS IS THE LAND FOR THE OPERATION OF A DAM.  SEE UNITED
STATES V. VIRGINIA ELECTRIC CO., 365 U.S. 624, 630.  AS STATED BY THE
SUPREME COURT OF WASHINGTON IN ACKERMAN V. PORT OF SEATTLE, 55 WASH. 2D
401, 413, 348 P.2D 664, 671, "  ...  AN ADEQUATE APPROACH WAY IS AS
NECESSARY A PART OF AN AIRPORT AS IS THE GROUND ON WHICH THE AIRSTRIP,
ITSELF, IS CONSTRUCTED  ...  ."  WITHOUT THE "APPROACH AREAS," AN
AIRPORT IS INDEED NOT OPERABLE.  RESPONDENT IN DESIGNING IT HAD TO
ACQUIRE SOME PRIVATE PROPERTY.  OUR CONCLUSION IS THAT BY
CONSTITUTIONAL STANDARDS IT DID NOT ACQUIRE ENOUGH.  REVERSED. 

FN1  REGULATION 60.17, ENTITLED "MINIMUM SAFE ALTITUDES," PROVIDES: 

"EXCEPT WHEN NECESSARY FOR TAKE-OFF OR LANDING, NO PERSON SHALL
OPERATE AN AIRCRAFT BELOW THE FOLLOWING ALTITUDES: 

"(A)  ANYWHERE.  AN ALTITUDE WHICH WILL PERMIT, IN THE EVENT OF THE
FAILURE OF A POWER UNIT, AN EMERGENCY LANDING WITHOUT UNDUE HAZARD TO
PERSONS OR PROPERTY ON THE SURFACE: 

"(B)  OVER CONGESTED AREAS.  OVER THE CONGESTED AREAS OF CITIES,
TOWNS OR SETTLEMENTS, OR OVER AN OPEN-AIR ASSEMBLY OF PERSONS, AN
ALTITUDE OF 1,000 FEET ABOVE THE HIGHEST OBSTACLE WITHIN A HORIZONTAL
RADIUS OF 2,000 FEET FROM THE AIRCRAFT.  ... 

"(C)  OVER OTHER THAN CONGESTED AREAS.  AN ALTITUDE OF 500 FEET ABOVE
THE SURFACE, EXCEPT OVER OPEN WATER OR SPARSELY POPULATED AREAS.  IN
SUCH EVENT, THE AIRCRAFT SHALL NOT BE OPERATED CLOSER THAN 500 FEET TO
ANY PERSON, VESSEL, VEHICLE, OR STRUCTURE  ...  ."  14 CFR SEC. 60.17. 

FN2  IN CIRCUMSTANCES MORE OPAQUE THAN THIS WE HAVE HELD LESSORS TO
THEIR CONSTITUTIONAL OBLIGATIONS.  SEE BURTON V. WILMINGTON PARKING
AUTH., 365 U.S. 715. 

MR. JUSTICE BLACK, WITH WHOM MR. JUSTICE FRANKFURTER CONCURS,
DISSENTING. 

IN UNITED STATES V. CAUSBY, (FN1) 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 TAKEOFF 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
OVER-FLIGHTS 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.  (FN2)  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.  (FN3)    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.  (FN4)  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" (FN5) AND THAT EVERY CITIZEN HAS
"A PUBLIC RIGHT OF FREEDOM OF TRANSIT IN AIR COMMERCE THROUGH THE
NAVIGABLE AIR SPACE OF THE UNITED STATES."  (FN6)  ALTHOUGH IN CAUSBY
THE COURT HELD THAT UNDER THE THEN EXISTING LAWS AND REGULATIONS THE
AIRSPACE USED IN LANDING AND TAKEOFF 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."  (FN7)  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 TAKEOFF 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.  (FN8) 

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. SEC. 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 SEC. 1112 WERE
THOSE "EASEMENTS THROUGH OR OTHER INTERESTS IN AIR SPACE" NECESSARY FOR
THE CLEARING AND PROTECTING OF "AERIAL APPROACHES" FROM PHYSICAL
"AIRPORT HAZARDS" (FN9) - A DUTY EXPLICITLY PLACED ON THE LOCAL
COMMUNITIES BY THE STATUTE (SEC. 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 AIR-TRANSPORTATION 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 TILL 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. 

FN1  328 U.S. 256. 

FN2  WE ARE NOT CALLED ON TO PASS ON ANY QUESTION OF "TAKING" UNDER
THE PENNSYLVANIA CONSTITUTION OR LAWS. 

FN3  60 STAT. 174-176, AS AMENDED, 49 U.S.C. SECS. 1108, 1110.  THE
DUTIES OF THE CIVIL AERONAUTICS ADMINISTRATOR HAVE SINCE BEEN
TRANSFERRED TO THE FEDERAL AVIATION AGENCY ADMINISTRATOR.  72 STAT. 806
807. 

FN4  THE FEDERAL AVIATION AGENCY ADMINISTRATOR IS DIRECTED TO PREPARE
AND MAINTAIN A "NATIONAL PLAN FOR THE DEVELOPMENT OF PUBLIC AIRPORTS IN
THE UNITED STATES" TAKING "INTO ACCOUNT THE NEEDS OF BOTH AIR COMMERCE
AND PRIVATE FLYING, THE PROBABLE TECHNOLOGICAL DEVELOPMENTS IN THE
SCIENCE OF AERONAUTICS, AND THE PROBABLE GROWTH AND REQUIREMENTS OF
CIVIL AERONAUTICS."  49 U.S.C. SEC. 1102.  THE DETAILED FEATURES OF THE
FEDERAL REGULATORY AND DEVELOPMENT SCHEME ARE FOUND IN 49 U.S.C. CC. 14
(FEDERAL-AID FOR PUBLIC AIRPORT DEVELOPMENT), 15 (INTERNATIONAL
AVIATION FACILITIES) AND 20 (FEDERAL AVIATION PROGRAM). 

FN5  52 STAT. 1028, 49 U.S.C. SEC. 1508. 

FN6  52 STAT. 980, 49 U.S.C. SEC. 1304. 

FN7  SECTION 101(24) OF THE FEDERAL AVIATION ACT OF 1958 PROVIDES:
"'NAVIGABLE AIRSPACE' MEANS AIRSPACE ABOVE THE MINIMUM ALTITUDES OF
FLIGHT PRESCRIBED BY REGULATIONS ISSUED UNDER THIS ACT, AND SHALL
INCLUDE AIRSPACE NEEDED TO INSURE SAFETY IN TAKE-OFF AND LANDING OF
AIRCRAFT."  72 STAT. 739, 49 U.S.C. SEC. 1301(24). 

FN8  14 CFR SEC. 60.18.  THE ADMINISTRATOR OF THE FEDERAL AVIATION
AGENCY IS DIRECTED TO CONTROL "THE USE OF THE NAVIGABLE AIRSPACE OF THE
UNITED STATES."  49 U.S.C. SEC. 1303(C). 

FN9  THE TERM "AIRPORT HAZARD" MEANS "ANY STRUCTURE OR OBJECT OF
NATURAL GROWTH  ...  OR ANY USE OF LAND  ...  WHICH OBSTRUCTS THE AIR
SPACE  ...  OR IS OTHERWISE HAZARDOUS TO  ...  LANDING OR TAKING OFF OF
AIRCRAFT."  49 U.S.C. SEC. 1101(A)(4).