
TEXAS COURT OF APPEALS, THIRD DISTRICT, AT AUSTIN





NO. 03-98-00455-CV





City of Austin/Travis County Landfill Company, L.L.C., Appellants


v.


Travis County Landfill Company, L.L.C./City of Austin, Appellees






FROM THE DISTRICT COURT OF TRAVIS COUNTY, 126TH JUDICIAL DISTRICT

NO. 97-07362, HONORABLE SUZANNE COVINGTON, JUDGE PRESIDING







DISSENTING OPINION





	This case presents the question of whether the owner of an undeveloped landfill site
south of the Austin-Bergstrom International Airport is entitled to compensation for property
"taken" by overflights. (1)  The landfill site was purchased by the landowner after the airport
referendum and subject to a clearance easement prohibiting the building of structures above a
certain height.  Because the landowner's right to the use and enjoyment of the land is limited by
the clearance easement and the landowner's entitlement to compensation turns on (i) the extent of
its interest in the property and (ii) whether the overflights substantially interfered with its use and
enjoyment of the land, I conclude that the jury was improperly instructed on the law and the error
probably caused the rendition of an improper judgment. (2)  For these reasons, I respectfully dissent.
	Although the upper reaches of the atmosphere are in the public domain and the
surface owner's title is subject to the right of public passage, a landowner's property interest in
the land extends to the airspace over the property to the extent the airspace can be used to benefit
the underlying land.  Because TCLC, the landowner here, owns its land subject to a clearance or
obstruction easement, however, it no longer has the unlimited right, inter alia, to build into the
airspace above its land.
	The Supreme Court first addressed the problem of whether overflights constitute
a taking in United States v. Causby, 328 U.S. 256 (1946).  Concluding that not every violation
of an owner's airspace constitutes a taking, the Court stated:  "Flights over private land are not
a taking, unless they are so low and so frequent as to be a direct and immediate interference with
the enjoyment and use of the land."  (Emphasis added.)  Id. at 266.  The Court concluded that low
flights of the government's planes through the superjacent airspace of the landowner constituted
a taking because the flights were destructive of the landowner's poultry business and disruptive
of his family's peace and quiet.  The Court found that an easement in plaintiff's land was taken
when heavy bombers from a neighboring airbase, upon takeoff and landing, frequently passed over
the landowner's property as low as 63 feet above his barn and 67 feet above his house.  Because
chickens were killed and production from the remaining fowls fell off, the use of the land as a
commercial chicken farm was destroyed and the family had to give up its chicken business.  The
family members were deprived of sleep and became nervous and frightened.  On the basis of these
facts, the Court found that an easement had been taken and compensation was required.
	The Court considered three factors significant in determining whether overflights
interfered with the property owner's rights in such a way as to constitute a "taking" that would
require compensation: (i) the planes flew directly over the claimant's land; (ii) the flights were low
and frequent; and (iii) the flights directly and immediately interfered with the claimant's enjoyment
and use of the land.  Id. at 266. (3)  The Court recognized that the use and enjoyment of the property
need not be completely destroyed to constitute a taking.  Hence, "[t]he path of glide for airplanes
might reduce a valuable factory site to grazing land, an orchard to a vegetable patch, a residential
section to a wheat field.  Some value would remain.  But the use of the airspace immediately above
the land would limit the utility of the land and cause a diminution in its value."  Id. at 262. 
	Likewise, in Griggs v. County of Allegheny, 369 U.S. 84 (1962), the Supreme
Court found that low altitude flights made the land "unbearable" for the landowning family's
residential use.  The Court described the noise of the planes as comparable to the noise of a
riveting machine or steam hammer which made it often impossible for people in the house to talk
on the telephone or even to converse at all.  The family would frequently be awakened at night by
the noise of planes, the windows would rattle, plaster would fall from the walls and ceilings, and
the family's health was impaired.  Relying on Causby, the Court held that the county had "taken"
an air easement for which it must pay just compensation.  See 369 U.S. at 88-90; see also City of
Houston v. McFadden, 420 S.W.2d 811, 814 (Tex. Civ. App.--Houston [14th Dist.] 1967, writ
ref'd n.r.e.) (taking found due to noise, lights, physical damage to property of homeowner, and
intense vibrations caused by low-flying overflights).
	The majority relies on Causby, Griggs, and McFadden to find a "taking" even
though it finds that TCLC "has not claimed that the noise or vibrations from overflights have
harmed the underlying property in any way" and alleges only "that the overflights decreased the
fair market value of its undeveloped property."  The majority confuses a measure of damages for
the very existence of the harm.  But the law is clear that low flights, in and of themselves, do not
constitute the basis of a cause of action.  See, e.g., United States v. Brondum, 272 F.2d 642, 646
(5th Cir. 1959) (citing Causby).  The ultimate question is whether there was sufficient interference
with the landowner's use and enjoyment of the property to constitute a taking.  See Speir v. United
States, 485 F.2d 643 (Ct. Cl. 1973).  Article I, Section 17 does not require compensation for
every decrease in market value attributed to a governmental activity.  See Felts v. Harris County,
915 S.W.2d 482, 484 (Tex. 1996); State v. Schmidt, 867 S.W.2d 769, 774 (Tex. 1993).  TCLC
has cited no case in which a decrease in market value alone constitutes a taking requiring
compensation. (4)  The diminution of the market value of the property becomes relevant only where
a landowner has demonstrated a direct and substantial invasion of his property rights of such a
magnitude that he is deprived of the use and enjoyment of his property. 
	At trial, the City objected on numerous grounds to the following question included
in the court's charge:

QUESTION NO. 1

	Beginning on or about June 30, 1997, has the City of Austin taken TCLC's airspace
rights by overflights associated with the operation of the Austin-Bergstrom International Airport?
	Airspace rights are taken by overflight if:

(1)	the flights are frequent and recurring and are not isolated or sporadic;

(2)	the flights regularly occur at altitudes below the normal safe level of flight
(500 feet in uncongested areas, 1000 feet in congested areas); and

(3)	the flights result in a substantial interference with the owner's ability to use
and enjoy his property or if the overflights result in a substantial decrease in
the market value of the property.


As discussed above, a taking by overflights requires compensation when the Causby factors are
satisfied.  The instructions as given attempted to set forth the law of taking by overflights.  The
City correctly objected to instructions (2) (5) and (3) as misstatements of the law and have raised both
of these as issues on appeal. 
	An instruction is improper if it misstates the law or misleads the jury.  To determine
whether an alleged error in the submission of instructions or definitions is reversible, we must
consider "the pleadings of the parties, the evidence presented at trial, and the charge in its
entirety."  Island Recreational Dev. Corp. v. Republic of Tex. Sav. Ass'n, 710 S.W.2d 551,555
(Tex. 1986).  Error will be deemed reversible error only if, when viewed in light of the totality
of these circumstances, it amounted to such a denial of the rights of the complaining party "as was
reasonably calculated and probably did cause the rendition of an improper judgment."  Id. at 555. 
By inclusion of the phrase "or if the overflights result in a substantial decrease in the market value
of the property," the instruction is an improper statement of the law.  I believe that it was also
reasonably calculated and probably did cause the rendition of an improper judgment because the
jury was given an alternative ground on which to find the existence of a "taking." 
	The majority also dismisses the City's argument that the trial court erred by failing
to specify whether the disputed easement was a clearance easement or an avigation easement. 
They conclude that the City took an avigation easement by overflights and conclude that the height
restrictions of the clearance easement were immaterial. (6)  As a matter of law, the distinction
between a clearance easement and an avigation easement is a critical determination for the jury to
make with guidance from the trial court.  
	Since 1982, when TCLC's predecessors in title voluntarily conveyed to the federal
government an easement, the property has been burdened by a perpetual and assignable clearance
easement which allows the grantee the various rights summarized in the majority opinion,
including "the right to remove, raze, or destroy those portions of building [sic], other structures,
and land extending into or above the approach zone plane and the transitional zone" and "the right
to prohibit the future construction of buildings or other structures from infringing upon or
extending into or above the approach zone plane and the transitional zone."  It is undisputed that
the City acquired the easement when the air force base closed. (7)  Thus, the right to build a structure
into the airspace on the land is part of TCLC's "bundle of rights" only to the extent it does not
violate the clearance easement. (8)
	There is no ambiguity in the description of the clearance easement.  Although
TCLC refers to the two easements as a single "military" easement, there is no mention of the right
to fly over the land nor is there a mention of a limitation to military flights.  In plain words, the
federal government sought to acquire the right to cut trees and natural growth to a prescribed
height and to remove and prohibit construction of buildings or other structures above a prescribed
height.  This distinctive type of easement or "estate" in the property is referred to as a clearance
or "flight obstruction" easement, see United States v. 48.10 Acres of Land, 144 F.Supp. 258
(S.D.N.Y. 1956), or described as a "ceiling," which "has but one function . . . and that is to serve
as the ceiling over the land in question beyond which obstructions or structures may not be
allowed to extend upward into the adjacent air space."  United States v. 4.43 Acres of Land, 137
F.Supp 567, 569 (N.D. Tex. 1956). (9)  TCLC correctly contends that a clearance easement does
not confer any attendant right to fly through or over it.
	In addition to the clearance easement, however, the Deed of Easement also granted
the federal government an avigation easement but limited the easement to military aircraft.  The
avigation easement conveyed the following rights:

the right of unobstructed passage of all military aircraft and aircraft operated under
military control (aircraft being defined for the purpose of this instrument as any
contrivance now known or hereafter invented, used or designed for navigation or
flight in the air) in all air space above the surface of Grantors' property, the
number of passages not to exceed 60,900 per year; together with the right to cause
in all air space above the surface of Grantors' property such noises, vibrations,
fumes, fuel particles, and such other related effects as may result from the
operation of aircraft landing at, taking off from, or operating at or on Bergstrom
Air Force Base, notwithstanding the extent of interference which such noises,
vibrations, fumes, fuel particles, and such other related effects, may cause to the
use of Grantors' remainder estate.


The Grantors further agreed to hold the United States harmless "for any claim by grantors for
interference with the use and enjoyment of property located beneath the property described above
which interference is caused by the passage of aircraft operating within the scope of this
easement." (Emphasis added.)
	The avigation rights in the Deed of Easement, then, are distinct from the height
restrictions of the clearance easement imposed on the subject property, and it is only the latter that
allegedly prevents TCLC from vertically expanding its unopened landfill.  While there is a
question as to whether the avigation easement terminated when the land reverted to the City, (10)
there is no question that the height restrictions in the Deed of Easement are perpetual, assignable,
and unrelated to the type of aircraft passing over the subject property. 
	Thus, by its clear language, the 1982 Deed of Easement grants a clearance easement
and, "in addition," an avigation easement limited to military aircraft.  Because the jury was not
instructed on the distinction between these two estates in land and their effect on the issue of a
"taking," the instruction was improper.  Causby makes clear that no taking occurs by the flight
of aircraft in and of itself.  Because the City possesses at least a perpetual clearance easement, the
charge was incorrect.  If a taking has occurred, it must be shown that TCLC's use and enjoyment
of the land was substantially impaired apart from the limitations imposed on it by the clearance 
easement. (11)
	I respectfully dissent.


  
					Jan P. Patterson, Justice
Before Chief Justice Aboussie, Justices Kidd and Patterson
Filed:   August 26, 1999
Publish
1.   In May 1993, the City's voters approved a referendum relocating the new municipal
airport to Bergstrom Air Force Base.  In September 1993, ownership of Bergstrom Air Force Base
officially reverted to the City. In December 1993, TCLC purchased the subject property and
acquired the Type IV landfill permit for the property.  Military flights continued out of the airport
until 1996.  Air cargo operations began at ABIA on or about June 30, 1997, which is the date
TCLC alleges the taking occurred for which it should be compensated.
2.   See Tex. R. App. P. 44.1(a).  See also City of Brownsville v. Alvarado, 897 S.W.2d
750, 752 (Tex. 1995); Island Recreational Dev. Corp. v. Republic of Tex. Savings Ass'n, 710
S.W.2d 551, 555 (Tex. 1986).
3.   See also Brown v. United States, 73 F.3d 1100, 1103 (Fed. Cir. 1996); Speir v. United
States, 485 F.2d 643, 646-47 (Ct. Cl. 1973); A.J. Hodges Indus., Inc. v. United States, 355 F.2d
592, 595-96 (Ct. Cl. 1966) (citing Causby).
4.   TCLC mistakenly relies upon Brown v. United States, 73 F.3d 1100 (Fed. Cir. 1996),
for the proposition that the third prong of the "takings" test allows for a finding that a substantial
decrease in market value alone is an alternative measure of loss of the use and enjoyment of land. 
Causby makes clear that diminution in value is simply a part of the loss of use and enjoyment or
exploitation of the land and not a separate test.  See United States v. Causby, 328 U.S. 256, 262
(1946).  Brown does not alter the takings test first enunciated in Causby.  It simply recognizes that
an important element in a landowner's right to the use and enjoyment of his land, i.e., a property
owner's "bundle of rights," is the right to economically exploit the land in the future.  The
Browns operated a ranch for hunting and cattle raising on 6858 acres.  They asserted that
overflights substantially interfered with the enjoyment and use of 100 acres of their property for
recreational purposes and had limited their use of that acreage to agricultural purposes.  The trial
court found that the Browns had not shown substantial interference with their present enjoyment
and use of the overflown surface property.  Concluding that the trial court's definition of use and
enjoyment was too restrictive and that a question of fact existed as to whether there was a
substantial interference with their use and enjoyment of the land, the court of appeals reversed. 
The court recognized that "uses which have been recognized and valued by the market before the
overflights" were part of the bundle of rights in the land that a landowner possessed. The court
noted:  "Any takings analysis is of course directed to that part of the property characterized by low
and frequent overflights.  The trial court found, and the parties do not dispute, that this area
comprises roughly 100 acres of the Brown's property."  73 F.3d at 1105.
5.   Instruction (2) provides that a right is taken by overflight if "the flights regularly occur
at altitudes below the normal safe level of flight (500 feet in uncongested areas, 1000 feet in
congested areas)."  This is a misstatement of the law and rests on the faulty premise that federal
navigable airspace cannot exist below an altitude of 500 feet.  For purposes of takeoff and landing,
navigable airspace exists below the altitude stated in the charge.  The instruction also fails to
recognize TCLC's limited rights to exclusivity in this airspace by reason of the clearance
easement.
6.   The City argues that a clearance easement placing height restrictions on the subject
project was taken either as early as the 1940s when military aircraft began flying continuously
over the property or in 1958 when the Federal Aviation Act was passed which placed height
restrictions on the property.  Because of its theory that an easement existed long before the Deed
of Easement, the City contends that the Deed of Easement is not necessary to the disposition of
this case.  The City argues that TCLC should not now be permitted to complain of height
restrictions that have long burdened the subject property which it purchased with full knowledge
that the federal government had already transferred title for the airport to the City for use as a
civilian airport.  In light of the express grant of the clearance easement in 1982, however, I have
not addressed the City's alternative theories.  Regardless of the City's arguments that the TCLC
property has been subject to frequent low-level overflights since the 1940s or that the property's
use has been restricted by federally mandated imaginary surfaces since 1958, the undisputed fact
remains that TCLC purchased the property in question after the property reverted back to the City
and after the airport referendum.
7.   TCLC does not contend that the City has abandoned or otherwise extinguished the
easement.  TCLC argues that the clearance easement cannot be assignable to the City because the
avigation rights in the easement are restricted to military aircraft.  This ignores the clear language
of the Deed of Easement and the law of easements. 
8.   The owner of the property over which the easement runs can make any use of the land
that he wants but he cannot interfere with the reasonable and necessary enjoyment of the easement. 
See Rhodes v. Whitehead, 27 Tex. 304 (1863).
9.   "The purpose of the ceiling is to increase the margin of safety for flying by assuring that
the glide zone will be free from natural growth or man-made obstructions and the pilot's vision
unobscured above a designated altitude."  United States v. Brondum, 272 F.2d 642, 644-45 (5th
Cir. 1959).
10.   An easement may be limited to a specific use and an avigation easement to a type of
aircraft or operation.  See Branning v. United States, 654 F.2d 88 (1981), aff'd, 784 F.2d 361
(Fed. Cir. 1986).  A change resulting in more extensive aircraft operations constitutes a taking of
a more extensive easement.  See Avery v. United States, 330 F.2d 640 (Ct. Cl. 1964).
11.   It may well be that TCLC is entitled to be compensated for the taking of some portion
of its airspace, but because a prior owner of the subject property was compensated for the
easement that placed height restrictions on the property, they can only be compensated for that
portion of their interest in the land that was "taken" from them.  See Griggs v. County of
Allegheny, 369 U.S. 84, 88 (1962).  Indeed, this Court, in denying TCLC's request for injunctive
relief before trial, concluded that there was no evidence that "the few civilian overflights currently
taking place have injured [TCLC] in its ownership or possession of the unoccupied land."


ural purposes.  The trial
court found that the Browns had not shown substantial interference with their present enjoyment
and use of the overflown surface property.  Concluding that the trial court's definition of use and
enjoyment was too restrictive and that a question of fact existed as to whether there was a
substantial interference with their use and enjoyment of the land, the court of appeals reversed. 
The court recognized that "uses which have been recognized and valued by the market before the
overflights" were part of the bundle of rights in the land that a landowner possessed. The court
noted:  "Any takings analysis is of course directed to that part of the property characterized by low
and frequent overflights.  The trial court found, and the parties do not dispute, that this area
comprises roughly 100 acres of the Brown's property."  73 F.3d at 1105.
5.   Instruction (2) provides that a right is taken by overflight if "the flights regularly occur
at altitudes below the normal safe level of flight (500 feet in uncongested areas, 1000 feet in
congested areas)."  This is a misstatement of the law and rests on the faulty premise that federal
navigable airspace cannot exist below an altitude of 500 feet.  For purposes of takeoff and landing,
navigable airspace exists below the altitude stated in the charge.  The instruction also fails to
recognize TCLC's limited rights to exclusivity in this airspace by reason of the clearance
easement.
6.   The City argues that a clearance easement placing height restrictions on the subject
project was taken either as early as the 1940s when military aircraft began flying continuously
over the property or in 1958 when the Federal Aviation Act was passed which placed height
restrictions on the property.  Because of its theory that an easement existed long before the Deed
of Easement, the City contends that the Deed of Easement is not necessary to the disposition of
this case.  The City argues that TCLC should not now be permitted to complain of height
restrictions that have long burdened the subject property which it purchased with full knowledge
that the federal government had already transferred title for the airport to the City for use as a
civilian airport.  In light of the express grant of the clearance easement in 1982, however, I have
not addressed the City's alternative theories.  Regardless of the City's arguments that the TCLC
property has been subject to frequent low-level overflights since the 1940s or that the property's
use has been restricted by federally mandated imaginary surfaces since 1958, the undisputed fact
remains that TCLC purchased the property in question after the property reverted back to the City
and after the airport referendum.
7.   TCLC does not contend that the City has abandoned or otherwise extinguished the
easement.  TCLC argues that the clearance easement cannot be assignable to the City because the
avigation rights in the easement are restricted to military aircraft.  This ignores the clear language
of the Deed of Easement and the law of easements. 
8.   The owner of the property over which the easement runs can make any use of the land
that he wants but he cannot interfere with the reasonable and necessary enjoyment of the easement. 
See Rhodes v. Whitehead, 27 Tex. 304 (1863).
9.   "The purpose of the ceiling is to increase the margin of safety for flying by assuring that
the glide zone will be free from natural growth or man-made obstructions and the pilot's vision
unobscured above a designated altitude."  United States v. Brondum, 272 F.2d 642, 644-45 (5th
Cir. 1959).
10.   An easement may be limited to a specific use and an avigation easement to a type of
aircraft or operation.  See Branning v. United States, 654 F.2d 88 (1981), aff'd, 784 F.2d 361
(Fed. Cir. 1986).  A change resulting in more extensive aircraft operations constitutes a taking of
a more extensive easement.  See Avery v. United States, 330 F.2d 640 (Ct. Cl. 1964).
11.   It may well be that TCLC is entitled to be compensated for the ta