
172 S.E.2d 1 (1970)
276 N.C. 292
G. D. HOYLE
v.
CITY OF CHARLOTTE, a Municipal Corporation.
No. 18.
Supreme Court of North Carolina.
February 1, 1970.
*5 Carswell & Justice, by James F. Justice and C. J. Leonard, Jr., Charlotte, for plaintiff appellee.
*6 Ervin, Horack & McCartha, by Paul R. Ervin and William E. Underwood, Jr., Charlotte, for defendant appellant.
BOBBITT, Chief Justice.
"In keeping with the expansion and development of air navigation and commerce, but recognizing the dominant right of the surface owner to fully use and enjoy his land, the courts, generally, in adjudicating the relative property rights in the airspace, have found it necessary to modify the ancient maxim of real property, `he who owns the soil owns it to the heavens.' The general rule now deducible from the authorities is that the justiciable right to the exclusive possession of land extends upward only to that point necessary for the full use and enjoyment of the land and the incidents of its ownership, the balance being regarded as open and navigable airspace. Stated affirmatively, a landowner has a dominant right of occupancy for purposes incident to his use and enjoyment of the surface, superior to any claimed rights of aerial navigators which conflict therewith." 8 Am.Jur.2d, Aviation § 3.
Pursuant to authority conferred by Congress, 49 U.S.C.A. § 1341 and § 1348, the administrator of the Federal Aviation Agency has prescribed regulations which, in pertinent part, provide: "Except when necessary for takeoff or landing, no person may operate an aircraft below the following altitudes: (a) * * * (b) * * * (c) Over other than congested areas. An altitude of 500 feet above the surface, except over open water or sparsely populated areas. In that case, the aircraft may not be operated closer than 500 feet to any person, vessel, vehicle, or structure, (d) * * *" The Code of Federal Regulations, Title 14Aeronautics and Space Part 60 to 199 (Revised as of January 1, 1969) § 91.79. In a non-congested area, airspace to an altitude of 500 feet or more is deemed within the public domain. Under the federal statutes and regulations, the airspace over plaintiff's property to an altitude of 500 feet is not a part of the public domain. United States v. Causby, 328 U.S. 256, 66 S.Ct. 1062, 90 L.Ed. 1206 (1946).
We consider now the facts pertinent to defendant's contention that its ownership of the airport should not subject it to liability to plaintiff.
The Federal Aviation Agency, 49 U.S. C.A. § 1101 et seq., has, and exercises, full responsibility for the actual operations that cause planes to land and take off at the Airport. The runways to be used and the manner of approach and departure are determined and prescribed by employees of the Federal Government. Development of the Airport, including the extension of the northeast-southwest runway, was in conformity with plans approved by the Federal Aviation Agency. Overflights of which plaintiff complains were and are made in accordance with regulations prescribed by the Federal Aviation Agency.
Upon the cancellation on May 13, 1946, of the lease of the Airport to the United States Government for use as Morris Field Airbase, defendant entered into certain contractual obligations with the United States with reference to defendant's operation of the Airport. To qualify for assistance in making improvements at the Airport in conformity with the National Airport Plan, defendant was required to make "Sponsor's Assurances" which provide, inter alia, (1) that the Airport "shall be used for public airport purposes on reasonable terms and without unjust discrimination," and (2) that the United States, as specifically provided, "shall at all times have the right to use the airport in common with others." Commercial airlines, under the terms of their leases from defendant, are granted the right to use the Airport for enumerated specific purposes, including "landing" and "taking off" of their aircraft.
Defendant pays all costs of maintaining the Airport. Its income consists of landing *7 fees, gasoline and oil sales, hangar and terminal facility rentals, income from concessions, maintenance services, etc.
In Griggs v. Allegheny County, 369 U.S. 84, 82 S.Ct. 531, 7 L.Ed.2d 585, 82 S.Ct. 531 (1962), reh. den., 369 U.S. 857, 82 S. Ct. 931, 8 L.Ed.2d 16 (1962), the Greater Pittsburgh Airport, owned and operated by Allegheny County, was involved. The opinion of Mr. Justice Douglas states: "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. § 1101 et seq." Again: "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." It was held, in accordance with United States v. Causby, supra, that there had been a taking of an easement by Allegheny County for which Griggs was entitled to compensation. The basis of the dissent of Mr. Justice Black, with whom Mr. Justice Frankfurter concurred, is that the United States of America rather than Allegheny County should pay for an easement necessary for the landing and taking off of aircraft in accordance with federal statutory provisions and rules and regulations of federal agencies.
In Griggs, Mr. Justice Douglas summarizes pertinent portions of the National Airport Plan provided for in 49 U.S.C.A. § 1101 et seq., as follows:
"By this Act the federal Administrator is authorized and directed to prepare and continually revise a `national plan for the development of public airports.' § 1102(a). For this purpose he is authorized to make grants to `sponsors' for airport development. §§ 1103, 1104. Provision is made for apportionment of grants for this purpose among the States. § 1105. The applications for projects must follow the standards prescribed by the Administrator. § 1108.
"It is provided in § 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. § 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 * * *.' § 1112(a) (2)."
Our statutes, codified as G.S. Chapter 63, entitled "Aeronautics," contemplate full cooperation and compliance with federal statutes and rules and regulations of appropriate federal agencies.
In our view, when defendant, by lease or otherwise, grants the right to use the Airport, this grant includes the right to use the approach areas necessary to land and take off in the manner prescribed by the Federal Aviation Agency. Hence, if overflights in taking off and landing in accordance with the rules and regulations of the Federal Aviation Agency constitute a direct and immediate interference with the enjoyment and use of plaintiff's property to such extent as to impair substantially the fair market value thereof, such overflights would constitute a "taking" by defendant of an air easement as appurtenant to the operation of its Airport.
This is an action to recover compensation for the alleged "inverse condemnation" *8 of a flight easement. In this jurisdiction, where private property is taken for a public purpose by a municipality or other agency having the power of eminent domain under circumstances such that no procedure provided by statute affords an applicable or adequate remedy, the owner, in the exercise of his constitutional rights, may maintain an action to obtain just compensation therefor. Charlotte v. Spratt, 263 N.C. 656, 663, 140 S.E.2d 341, 346, and cases cited. "Inverse condemnation is a device which forces a governmental body to exercise its power of condemnation, even though it may have no desire to do so." Bohannon, Airport Easements, 54 Va.L.R. 355, 373 (1968).
Defendant, by the exercise of the power of eminent domain conferred by G.S. § 63 5, could have condemned an easement of flight over all of the property of plaintiff for all type aircraft at minimum altitudes of 79, 80 or 90 feet above the surface of the ground and higher. Notwithstanding defendant failed to initiate condemnation proceedings to acquire such easement of flight, plaintiff asserts defendant actually appropriated such easement of flight and by reason thereof is required to pay just compensation for the impairment of the reasonable market value of his property on account thereof.
At the conclusion of plaintiff's evidence and again at the conclusion of all the evidence, defendant moved for nonsuit on the ground "there is insufficient evidence to take the case to the jury." Defendant excepted to, and now assigns as error, the denial of these motions.
The evidence, when considered in the light most favorable to plaintiff, was sufficient to permit a jury to find that, beginning in January or February, 1962, and continuously thereafter, the recurring noises, vibrations, air pollution, air currents, etc., from frequent overflights by commercial jets at altitudes ranging from 80 feet above the ground upward to and including 500 feet above the ground substantially and adversely affected the reasonable market value of plaintiff's property. If so, under Griggs v. Allegheny County, supra, and as held obliquely in Charlotte v. Spratt, supra, this constituted an appropriation or "taking" by defendant of an easement of flight over plaintiff's property and entitled plaintiff to compensation therefor. Accord: Ackerman v. Port of Seattle, 55 Wash.2d 400, 348 P.2d 664, 77 A.L.R.2d 1344 (1960); Thornburg v. Port of Portland, 233 Or. 178, 376 P.2d 100 (1962); Jacksonville v. Schumann, 167 So.2d 95 (Fla. Dist.Ct. of Appeal 1964); Johnson v. City of Greeneville, 435 S.W.2d 476 (Tenn. 1968); Henthorne v. Oklahoma City, 453 P.2d 1013 (Okl.1969); Bohannon, Airport Easements, supra; 8 Am.Jur.2d, Aviation § 7, p. 624; Annotation, 77 A.L.R.2d 1355 et seq.
In City of Atlanta v. Donald, 221 Ga. 135, 143 S.E.2d 737 (1965), cited by defendant, the Supreme Court of Georgia held the facts alleged in the amended complaint were insufficient to state a cause of action. The opinion pointed out, inter alia, the following: "It is utterly impossible for this Court to determine whether or not it was in fact necessary for aircraft using the defendant's airport to pass directly over her property at low altitudes as she alleges." Suffice to say, the allegations and evidence in the present case present an entirely different factual situation.
On appeal, defendant asserts in its brief that the court should have nonsuited the case because of a material variance between plaintiff's pleading and proof. It is asserted that the complaint (1) alleges overflights by aircraft generally, and (2) it fails to allege when the alleged taking occurred, but the evidence tends to show the taking was caused by overflights of commercial airline jets which began in January or February, 1962. As set forth in our preliminary statement, the allegations of the complaint include specific references to jet aircraft. The variances between plaintiff's pleading and proof were not of such *9 nature as to require nonsuit. Nothing indicates that defendant was misled or otherwise prejudiced. McCrillis v. A & W Enterprises, Inc., 270 N.C. 637, 643, 155 S.E. 2d 281, 285, and cases cited. This view is supported by the fact that defendant, at trial, did not assert material variance as a ground for his motions for nonsuit.
The assignments of error directed to the court's denial of defendant's motions for nonsuit are without merit and are overruled.
With reference to overflights by jets, the following facts are noted: (1) Overflights by military jets in connection with the Government's operation of Morris Field Airbase ended upon cancellation of the lease on May 13, 1946. Without elaboration, plaintiff testified these planes had "disturbed" him. See Causby v. United States, 75 F.Supp. 262, 109 Ct.Cl. 768 (1948), where Causby, the owner of land adjacent to the Greensboro-High Point Municipal Airport recovered for the temporary easement of flight taken during the period the airport was operated under lease as an airbase. (2) Plaintiff's testimony includes no reference to the F86 fighter jets and T-33 jet trainers operated by the Air National Guard over plaintiff's property from 1953 until 1961. The only evidence with reference thereto was offered by defendant. Suffice to say, nothing in plaintiff's evidence indicates he considered the overflights by these planes constituted such material interference with the enjoyment of his property as to impair substantially the reasonable market value thereof.
Plaintiff's testimony and evidence are to the effect that the direct and immediate interference with the enjoyment and use of his property to such extent as to impair the fair market value thereof began in January or February, 1962, with the frequent and regular overflights of commercial jet aircraft at low altitudes when taking off from and landing on the Airport's northeast-southwest runway. However, plaintiff did not commence this "inverse condemnation" action until September 21, 1967. A portion of plaintiff's evidence relates to occurrences between February, 1962, and September 1, 1967. An equal or greater portion thereof relates to what occurred between September 21, 1967, and the trial at December 9, 1968 Civil Session.
With reference to the first issue, the court's final instruction (mandate) was in these words: "(I)f you find from the evidence and by its greater weight, the burden being upon the plaintiff * * * to so satisfy you, that the flights to and from Douglas Municipal Airport were so low and so frequent or regular as to be a direct and immediate invasion of and interference with the use and enjoyment of the plaintiff's land, and * * * that by reason of said overflights, the reasonable market value of the plaintiff's property was substantially reduced, if you find all of these things and find them by the greater weight of the evidence, the burden being upon the plaintiff to so satisfy you, then the Court instructs you that this would constitute a taking of a flight or air easement by the defendant City over the lands of the plaintiff and in that event, it would be your duty to answer the first issue, Yes. On the other hand, the Court also instructs you that if you fail to so find it would be your duty to answer the first issue, No."
With reference to the second issue, the court gave this final instruction (mandate) to the jury: "(I)n answering the second and final issue, if you reach it, the Court instructs you that you * * * should first determine the reasonable fair market value of the entire tract of land belonging to the plaintiff at the present time without jets and other aircraft flying over it regularly and repeatedly at altitudes ranging from 80 feet above the ground upward to and including 500 feet above the ground and you should then proceed, having determined the fair market value of the property at the present time free of a flight or air easement, you would then proceed to determine the reasonable fair market value of the entire tract of land belonging to the *10 plaintiff * * * at the present time with jet and other aircraft flying over it regularly and repeatedly at elevations ranging from 80 feet above the ground upward to 500 feet, including 500 feet above the ground. The difference, if any, would be your answer to this issue, if you reach this issue and if you consider it. The answer to this issue, if you reach it and consider it, may be nothing or it may be any amount that you, the jury, find to be just and correct according to the rules of law which I have laid down for your guidance in this process. After you have arrived at the fair market value of the entire tract of land at the present time with the flight or air easement of the kind that I have described, if there is no difference in the two values, that is, if those two figures are the same, then you would answer the issue submitted to you, if you reach this second issue, nothing or none. If you find that the fair market value of the entire property at the present time in its present condition, that is, with the flight easement of the nature that I have described, and that that reasonable market value has not been and is not now in anywise reduced or diminished by the present situation and present overflights, then you would also answer the second issue nothing or none." (Our italics.)
The jury's answer to the first issue purports to establish that defendant appropriated a flight easement over plaintiff's property as alleged in the complaint. The complaint contains no allegation as to when the alleged "taking" occurred. Moreover, plaintiff alleged defendant had "taken" a flight easement over his property "for an altitude ranging between 90 feet and 300 feet above the ground over the entire area." (Our italics.) The opinion evidence as to values, referred to in our preliminary statement, relates to altitudes "ranging from ninety feet above the ground upward to 500 feet above the ground." (Our italics.) The charge with reference to the second issue relates to altitudes from 80 feet upward to and including 500 feet above the ground. (Note: The judgment refers to 79 feet as the minimum altitude.)
Plaintiff's failure to allege "when he asserts the flight easement was "taken" by defendant, and the discrepancies between plaintiff's pleadings and evidence with reference to the extent of the airspace defendant had taken, cast doubt upon the significance of the jury's answers to the issues.
Plaintiff's pleadings should have been amended so as to conform to his contentions and proof at trial. A motion for leave to amend prior to the next trial would seem in order. In actions for inverse condemnation, the plaintiff should allege with reasonable specificity when the alleged appropriation or taking occurred and the lower and upper altitudes of the airspace above his property to which the easement relates.
Plaintiff has resided on his property from 1937 until the present time. His testimony is to the effect that the direct and immediate interference with the enjoyment and use of his property to such extent as to impair the fair market value thereof began in January or February, 1962, with the frequent and regular overflights of commercial jet aircraft at low altitudes, when taking off from and landing on the Airport's northeast-southwest runway. However, plaintiff did not commence this "inverse condemnation" action until September 21, 1967. Plaintiff's damages were assessed as of the date of trial in December, 1968.
Assuming a "taking" of an air easement over plaintiff's property by defendant, these questions arise: (1) When did the "taking" occur? (2) If the "taking" occurred prior to the date the action was commenced, is the amount of compensation to which plaintiff is entitled determinable as of the date of the taking or as of the date of the commencement of the action? (3) If the "taking" is deemed to have occurred when plaintiff first asserted his *11 right to compensation by the commencement of the action, is the amount of compensation determinable as of the date of the commencement of the action or as of the date of the trial?
Before undertaking to answer these questions, we advert briefly to the statutes of limitation pleaded by defendant. It is first noted that there is neither allegation nor proof that defendant had acquired a flight easement over plaintiff's property by adverse user for a period of twenty years. Indeed, defendant alleged that any invasion of the airspace over plaintiff's property by aircraft was "inconsequential" and insufficient to constitute a taking of plaintiff's property. Plaintiff has never sought to acquire any flight easement over plaintiff's property by condemnation.
The three-year statute of limitations would be applicable if plaintiff had elected to sue for damages sustained prior to the commencement of this action "(f)or trespass upon real property." G.S. § 1-52(3). However, plaintiff elected to institute this action for "inverse condemnation," charging defendant with having theretofore appropriated a permanent flight easement over his property and that he is entitled to compensation for such permanent easement. Plaintiff's evidence was insufficient to establish a "taking" of such flight easement prior to January or February, 1962. Hence, plaintiff's cause of action, if any, for inverse condemnation accrued in January or February, 1962, and is not barred by any statute of limitations. See Ackerman v. Port of Seattle, supra.
The compensation to which plaintiff is entitled is the difference in the value of his property immediately before and immediately after the "taking" by defendant of the flight easement involved in this action. Gallimore v. State Highway and Public Works Comm., 241 N.C. 350, 353, 85 S.E.2d 392, 395, and cases cited; DeBruhl v. Highway Commission, 247 N.C. 671, 676, 102 S.E.2d 229, 234, and cases cited; Charlotte v. Spratt, supra, 263 N.C. at 662, 140 S.E.2d 341; Johnson v. Airport Authority of City of Omaha, 173 Neb. 801, 115 N.W.2d 426, 431 (1962); A. J. Hodges Industries, Inc. v. United States, 355 F.2d 592, 597, 174 Ct.Cl. 259 (1966); 8 Am.Jur. 2d, Aviation § 7, p. 625. Plaintiff's evidence is to the effect that defendant appropriated the flight easement in January or February, 1962, and since then has used it continuously and will continue to do so. If this be true, the flight easement so appropriated should be adjudged vested in defendant as of January or February, 1962, and the compensation to which plaintiff is entitled will be determined as of January or February, 1962. A plaintiff cannot, by deferring the institution of his action for inverse condemnation, select a later date for the determination of the compensation to which he is entitled.
Had he elected to do so, plaintiff could have sued for and, subject to a plea of the three-year statute of limitations, recovered damages on account of trespasses occurring prior to the commencement of this action. Having sued to recover compensation for a flight easement, he waived his right to recover for trespasses subsequent to the date of taking.
The conclusion reached is that the compensation to which plaintiff was entitled for a flight easement "taken" by defendant in January or February, 1962, and used continuously thereafter was the difference between the fair market value of plaintiff's property in January or February, 1962, with and without the overflights of jets and other aircraft at altitudes of 80 feet and upward to and including 500 feet. Compensation is not to be determined as of the date plaintiff instituted his action. A fortiori, it is not to be determined as of the date of the trial. Hence, the court erred in instructing the jury compensation was to be determined on the basis of the difference of the fair market value of plaintiff's property with and without overflights by jets or other aircraft at the time of the trial and in admitting opinion *12 evidence with reference to such market values at the time of the trial.
For the errors indicated, defendant is awarded a new trial.
New trial.
MOORE, J., did not participate in the consideration or decision of this case.
