Aug. 10, 2012 – Several landowners in St. Croix County sued the New Richmond Regional Airport for extending a runway, and thus the impact of planes flying overhead. Recently a unanimous Wisconsin Supreme Court said the outcome depends on the altitude and frequency of the flights.

Under both the U.S. and Wisconsin constitutions, the government can’t take private property for public use without paying just compensation. A taking can occur from actual occupation of land, or regulations that impact an owner’s enjoyment of land.

The plaintiff landowners in Brenner v. New Richmond Regional Airport Commission, 2012 WI 98 (July 17, 2012), argue that New Richmond is “taking” their land by allowing flights overhead. Whether that’s true, the supreme court explained, depends on how low and how frequently the planes are flying in the airspace above the land.

“We conclude that a taking occurs in airplane overflight cases when government action results in aircraft flying over a landowner’s property low enough and with sufficient frequency to have a direct and immediate effect on the use and enjoyment of the property,” wrote Justice David Prosser for the court, which remanded the case back to the circuit court.

To extend the runway, New Richmond Airport acquired 62 acres from a private landowner and a 3.8 acre “avigation or avigational easement,” which the supreme court explained as an easement permitting aircraft flights over a servient estate. The easement sails over a private landowners’ house and dairy barn. The landowner seeks compensation for the entire property.

Other landowners impacted by the runway extension sought full compensation too, citing the adverse impacts of low-flying planes overhead. All filed inverse condemnation proceedings and also claimed nuisance, and trespass. They say they have a property interest in the airspace above their land, and rejected the city’s jurisdictional offer of compensation.

“In essence, the landowners complained that the extended runway led to noise, dust, dirt, flashing lights, disruption of their sleep, diminished enjoyment of their property, concerns about safety, direct overflights, and a decrease in property value,” Justice Prosser noted.

The landowners rely in part on the landmark U.S. Supreme Court case of United States v. Causby, 328 U.S. 256 (1946), in which a North Carolina chicken farmer complained about the military planes that were flying 83 feet above his land.

The Wisconsin Supreme Court explained what Causby says: “If a property owner is to have full enjoyment of his land, he must have ‘exclusive control of the immediate reaches of the enveloping atmosphere,’ the ‘superadjacent airspace’ below the altitude that Congress appropriately determines to be a public highway,” Justice Prosser wrote, citing Causby.

The Causby court held that a taking occurs if planes fly so low and so frequently as to cause “direct and immediate interference” with enjoyment of one’s land. That rule applies to airports owned by local municipalities under Griggs v. Allegheny Cnty., 369 U.S. 84 (1962).

Under those cases, direct “[o]verflights that invade the person’s superadjacent block of airspace, even takeoffs and landings, may constitute a taking for which compensation is required,” the supreme court explained.

Under Wis. Stat. section 114.03 and 114.04, aircraft can’t interfere with a landowner’s use of land by flying too low. The supreme court noted that unless there’s a ceiling to a property owner’s interest established by Congress, “Wisconsin statute may permit the recognition of direct and immediate injuries to property from overflights above the minimum safe altitude.”

“We need not decide this question because the allegations in the record are that aircraft were frequently traveling below the minimum safe altitude in flights over the plaintiffs’ property,” wrote Justice Prosser, noting the analysis for future cases involving overflights.

The supreme court remanded the case for more factual findings that will allow the circuit court to determine whether a taking has occurred under the standard set forth.

The circuit court had concluded that a taking did not occur because the landowners were not deprived of practically all beneficial use of the land. That was not the correct standard to apply, the supreme court concluded, affirming an appeals court decision to remand the case.

Joe Forward is the legal writer for the State Bar of Wisconsin.