
    (355 F. 2d 592)
    A. J. HODGES INDUSTRIES, INC., AND UNION PRODUCING COMPANY v. THE UNITED STATES
    [No. 113-62.
    Decided January 21, 1966]
    
      
      Billy R. Pesmll, attorney of record, for plaintiff. Har-grove, Guyton, Vcm Hooh and Ramey, of counsel.
    
      Herbert Pittle, with whom was Assistant Attorney General Edwin L. Weisl, Jr., for defendant.
    Before CoweN, Chief Judge, Lakamobe, Dttkfbe, Davis and ColliNS, Judges.
    
   Pee Cubiam :

This case was referred pursuant to Buie 45 (a) (now Buie 57(a)) to Trial Commissioner Mastín G. White, with directions to make findings of fact and recommendation for conclusions of law. The commissioner has done so in an opinion and report filed on November 17, 1964. Plaintiffs have excepted to the opinion and certain of the findings of fact. Defendant elected to submit the case on the commissioner’s report without filing exceptions or brief. The case has been submitted upon oral argument of counsel. Since the court is in agreement with the opinion, findings and recommendation of the trial commissioner, with the deletion of one sentence, it hereby adopts the same, as modified, as the basis for its judgment in this case as hereinafter set forth. Plaintiffs are, therefore, entitled to recover and judgment is entered for them in the sum of sixty-one thousand one hundred dollars ($61,100), plus an amount computed at the rate of four percent (4%) per annum on $61,100 from August 1,1958, to the time of payment, all as just compensation for the taking of an easement of flight over their property, contingent upon the plaintiffs’ executing and delivering to the defendant of a deed conveying a perpetual easement of flight in the airspace over the 554.744 acres referred to in the final sentence of finding 2(a), beginning at an elevation of 124 feet from the surface of the ground and extending upward indefinitely, and authorizing the defendant to utilize the easement for the operation of B-52 jet bombers and other aircraft causing similar or less interference with the use and enjoyment of the subjacent property.

OPINION OE COMMISSIONER

PART I

The plaintiffs in this case are two corporations doing business in the State of Louisiana. They j ointly assert a claim for the alleged taking by the defendant of a so-called avigation easement in the airspace above a tract of land situated about 4 miles southeast of Bossier City, Louisiana, and consisting of 566.324 acres. The property, at all times material to this litigation, has been used for agricultural purposes by lessees of the plaintiffs.

The defendant concedes that it has taken an avigation easement in the airspace over the land in question, but contends that the plaintiff’s claim is barred by the statute of limitations.

The courts have held that when regular and frequent flights by Government-owned aircraft over privately owned land at altitudes of less than 500 feet from the surface of the ground constitute a direct, immediate, and substantial interference with the use and enjoyment of the property, there is a taking by the Government of an avigation easement, or easement of flight, in the airspace over the property, and that this taking is compensable under the Fifth Amendment to the Constitution. United States v. Causby, 328 U.S. 256, 266 (1946); Bacon v. United States, 155 Ct. Cl. 441, 443, 295 F. 2d 936 (1961). However, a claim for such a taking is barred by the statute of limitations unless the claim is asserted by the filing of a petition with this court “within six years after such claim first accrues” (28 U.S.C. §2501 (1958)).

Therefore, the principal question presented for decision in this case is whether the plaintiffs’ claim, or any part of it, first accrued more than 6 years prior to the filing by the plaintiffs of their petition on April 16,1962.

The plaintiffs’ property adjoins Barksdale Air Force Base, a large and busy installation of the United States Air Force. Since about February 1951, the base has been under the control of the Strategic Air Command. The south boundary line of the base and the north boundary line of the plaintiffs’ land are contiguous for a distance of approximately 1 mile.

Flying activities began at Barksdale Air Force Base in November 1932. However, the evidence in the record does not show that such activities had any significant relationship to the plaintiffs’ property until the completion of a northwest-southeast runway at Barksdale. This runway, numbered 14, was originally completed in August 1943 to a length of 10,156 feet. Upon its completion, runway 14 became — and it still is — the main runway at Barksdale. After the advent of jet aircraft at Barksdale beginning in November 1948, such aircraft have used runway 14 for all takeoffs and landings.

At the time of the original completion of runway 14 in August 1943, the north boundary line of the plaintiffs’ property was approximately 3,440 feet from the southeast end of the runway, and the projected center line of the runway bisected the plaintiffs’ land for a distance of more than a mile.

During the period beginning with the completion of runway 14 at Barksdale Air Force Base in August 1943 and continuing until sometime in December 1956, aircraft of the defendant approaching the base from the southeast for the purpose of landing on the southeast end of runway 14 regularly and frequently flew through the airspace above the plaintiffs’ property at altitudes lower than 500 feet from the surface of the ground. Such aircraft, when entering the airspace above the plaintiffs’ property at the southern boundary of the property, were generally at an altitude of about 456 feet above the surface of the ground, and they gradually descended at a 2.5-degree glide slope until they were about 194 feet above the surface of the ground by the time they left the airspace over the plaintiffs’ property at the northern boundary of the property.

The aircraft mentioned in the preceding paragraph included the following types: B-25 and B-26 twin-engine propeller-driven bombers (from August 1943 until sometime in 1947); B — 45 4-engine jet bombers (from November 1948 until a time which is not clearly reflected by the evidence in the record but which was probably about January 1951); C-124 4-engine propeller-driven cargo aircraft (from December 1949 until December 1956, and thereafter); BB-45 4 engine jet reconnaissance bombers (from February 1951 until about April 1953); KB-29 4-engine propeller-driven tankers (from February 1951 until September 1953); B-29 4-engine propeller-driven bombers (from Ocfóber 1951 until January 1954); B-47 6-engine jet bombers (from September 1953 until December 1956, and thereafter); and KC-97 4-engine propeller-driven tankers (from August 1953 until December 1956, and thereafter).

During the period now under consideration, August 1943-December 1956, aircraft of the defendant taking off from runway 14 at Barksdale toward the southeast intruded regularly and frequently into the airspace above the plaintiffs’ property immediately after the takeoffs. However, the evidence in the record does not show at what altitudes such aircraft flew when passing through the airspace above the plaintiffs’ property, except for the KC-97’s, the C-124’s, and the B-f7’s. The KC-97’s and C-124’s were frequently at an altitude of about 300 feet from the surface of the ground when they entered the airspace above tbe plaintiffs’ property at the northern boundary of such property immediately after taking off toward the southeast from runway 14. B-47’s were generally at an altitude of at least 500 feet from the surface of the ground when they entered the airspace above the plaintiffs’ property immediately after taking off toward the southeast from runway 14. In each instance, an aircraft would continue to climb as it passed through the airspace above the plaintiffs’ property.

Regular and frequent flights by Government-owned aircraft through the airspace over privately owned land at low altitudes do not constitute the taking of an avigation easement unless such flights interfere substantially with the use and enjoyment of the land. Adaman, Mutual Water Co. v. United States, 148 Ct. Cl. 921, 923, 181 F. Supp. 658 (1958); Mid-States Fats and Oils Corp. v. United States, 159 Ct. Cl. 301, 304 (1962). In this connection, it is pertinent to observe that the record is devoid of evidence indicating that flights by the defendant’s aircraft, other than the B-47’s, at low altitudes over the plaintiffs’ property during the period August 1943-December 1956 interfered substantially with the use and enjoyment of the property. Consequently, except for the B-47’s, flights by the defendant’s aircraft over the plaintiffs’ property during the period now under consideration must be disregarded in determining whether the defendant took an avigation easement in the airspace over the plaintiffs’ property during such period.

With respect to the B-47 jet bombers, the evidence shows that this type of aircraft first began to operate regularly at Barksdale Air Force Base in September 1953. At that time, the 301st Bomb Wing of the Strategic Air Command was the major tactical organization assigned to Barksdale. From the time of its assignment to Barksdale in February 1951 until the summer of 1953, it had been equipped with RB^45 4-engine jet reconnaissance bombers, as well as other aircraft. During the period April-July 1953, this wing was in the process of replacing the RB-45’s with B-47 jet bombers. By September 1953, the wing had 46 B-47’s. This wing operated B-47’s at Barksdale until December 1956, and also thereafter for a time.

The 376th. Bomb Wing of the Strategic Air Command, which was assigned to Barksdale in October. 195.1, was equipped with B-47 jet bombers in the early part of 1954. At the end.of March 1954, this wing had 29 B-47’s; and by the end of May 195.4, it had. 48 B-47’s. The 376th .Bomb Wing continued to operate B-47’s at Barksdale until December 1956, and also thereafter for a time.

The evidence in the record is meager concerning the effect of regular and frequent flights by B-47’s over the plaintiffs’ property at altitudes as low as 194 feet-from the surface of the ground during the period from September 1953 until December 1956. The pertinent information on this point merely shows that B-47’s flying over the plaintiffs’ property at low altitudes were noisy, that such flights caused some vibration to persons and objects on the ground, and that when cattle previously unaccustomed to such flights were brought on the property, they were for a time made nervous by B-47 overhead flights.

If this were a case of first impression concerning low flights by B-47’s, meager evidence of the sort just mentioned would probably be insufficient to show such interference with the use and enjoyment of the subjacent land as to constitute the taking of an avigation easement by the defendant in the airspace over the plaintiffs’ property during the period that is now under consideration. However, this court in previous cases has dealt with the matter of regular and frequent flights by B-47 jet bombers over privately owned land at altitudes of less than 500 feet, and it has held in each case that such flights constituted a taking of an avigation easement over the subjacent land. Highland Park, Inc. v. United States, 142 Ct. Cl. 269, 161 F. Supp. 597 (1958); Dick v. United States, 144 Ct. Cl. 424, 169 F, Supp 491 (1959); Jensen v. United States, 158 Ct. Cl. 333, 305 F. 2d 444 (1962).

I believe that, in the light of the decisions just cited, the limited evidence in the record relative to the effect of regular and frequent low flights by B-47’s over the plaintiffs’ property on the use and enjoyment of the property can be regarded as sufficient to establish the taking by the defendant of an avigation easement in the airspace over the plaintiffs’ property. The taking occurred in September 1953, when the defendant began to operate B-47’s regularly and frequently over the plaintiffs’ property at low altitudes with the intention of continuing such flights indefinitely. Adaman Mutual Water Co. v. United States, supra, 143 Ct. Cl. at p. 924. The avigation easement began in the airspace at the lowest elevation regularly and frequently affected by the defendant’s intrusions, or 194 feet from the surface of the ground, and extended upward; and the easement pertained to the airspace over the entire tract of land. Matson v. United States, 145 Ct. Cl. 225, 171 F. Supp. 283 (1959).

Of course, a claim for the taking in September 1953 of the avigation easement referred to in the preceding paragraph was barred by the 6-year statute of limitations when the plaintiffs filed their petition on April 16, 1962. This conclusion does not, however, necessarily require the dismissal of the plaintiffs’ petition.

PART II

In November 1955, runway 14 was extended on the southeast end for an additional distance of 1,600 feet. Since November 1955, runway 14 has been 11,756 feet in length, and the southeast end of the runway has been approximately 1,840 feet from the north boundary line of the plaintiffs’ property. The projected center line of the runway has continued to bisect the plaintiffs’ land for a distance of more than a mile.

In connection with the November 1955 extension of runway 14, the defendant acquired by condemnation on May 8,1956, a clearance easement over 223.13 acres of the plaintiffs’ land. The 223.13-acre parcel is situated directly to the southeast of the southeast end of runway 14, and the parcel is bisected by the projected center line of the runway.

After acquiring the clearance easement referred to in the preceding paragraph, the defendant in August 1956 cut down and removed approximately 178 pecan trees from the area affected by the clearance easement. A number of these trees, approximately 60 to 75 feet in height, were situated near the boundary line between the plaintiffs’ land and Barksdale Air Force Base. As compensation for the clearance easement and the removal of the pecan trees, the plaintiffs received $81,891.25, plus interest at the rate of 6 percent per annum on the portion of the award that had not been deposited with the court at the time of the taking.

During the period beginning sometime in December 1956 — after the removal of the pecan trees from the plaintiffs’ property — and continuing until the present time, aircraft of the defendant approaching Barksdale Air Force Base from the southeast for the purpose of landing on the southeast end of runway 14 have regularly and frequently flown through the airspace above the plaintiffs’ property at altitudes about 70 feet lower than the 456-to-194-foot descending plane mentioned in part I of this opinion. During this later period, the aircraft preparing to land on the southeast end of runway 14 have generally been at an altitude of about 386 feet from the surface of the ground when entering the airspace above the plaintiffs’ property at the southern boundary of the property; and then, after a gradual descent at a 2.5-degree glide slope, they have been at an altitude of about 124 feet from the surface.of the ground when they have emerged from the airspace above the plaintiffs’ property at the northern boundary of the property.

For a substantial period of time beginning with December 1956, the aircraft mentioned in the preceding paragraph included B-47’s. Both the 301st Bomb Wing and the 376th Bomb Wing of the Strategic Air Command were still at Barksdale, and they were equipped with B-47’s, as well as other aircraft.

For the reasons stated earlier in this opinion, it is concluded that, because of the lower flights by B-47’s over the plaintiffs’ property beginning in December 1956, -there was an additional taking by the defendant in December 1956 of an avigation easement in the airspace over the plaintiffs’ land, beginning at an elevation of 124 feet from the surface of the ground and extending upward to the portion of the airspace affected by the earlier avigation easement. This taking occurred within the 6-year period immediately preceding the filing of the plaintiffs’ petition on April 16,1962.

The measure of damages for the taking of an easement by the Government over privately owned land is the difference between the fair market value of the land just before-the easement was taken and the fair market value of the land just after the easement was taken. Federal Real Estate and Storage Co. v. United States, 79 Ct. Cl. 667, 682 (1934); Mid-States Fats and Oils Corp., supra, 159 Ct. Cl. at p. 310. The record in the present case does not contain any evidence showing that the fair market value of the plaintiffs’ land just after the taking of the additional avigation easement by the defendant in December 1956 was any less than the fair market value of the property had been just before the additional avigation easement was taken. Since the plaintiffs have the burden of proving that they sustained actual damages (Severin v. United States, 99 Ct. Cl. 435, 443 (1943), cert. denied 322 U.S. 733 (1944)), it must be concluded that there was no diminution in the value of the land by virtue of the taking of this additional easement of flight.

Consequently, there is no basis for making an award to the plaintiffs with respect to the taking of the additional avigation easement in December 1956.

PART HI

The 376th and 301st Bomb Wings, previously mentioned in parts I and II of this opinion, were transferred from Barksdale Air Force Base in December 1957 and April 1958, respectively. Thereafter, the operation of B-47 jet bombers by these units at Barksdale was no longer of significance •from the standpoint of the present case.

On March 1, 1958, however, the 4238th Strategic Wing of the Strategic Air Command was organized at Barksdale. Beginning in August 1958 and continuing until the present time, B-52 8-engine jet bombers have been assigned to and regularly operated at Barksdale. The B-52 is almost twice as large as the B-47; and the engines of the B-52 develop approximately twice as much thrust as the engines of the B-47. From September 1958 until the present time, KC-135 4-engine jet tankers have also been assigned to and regularly operated at the base.

The B-52’s and the KC-135’s, when approaching Barks-dale Air Force Base from the southeast for the purpose of landing on the southeast end of runway 14, have generally flown at about the same altitudes as other aircraft landing on the southeast end of runway 14 subsequent to the extension of that runway and the removal of the pecan trees from the plaintiffs’ property. That is to say, the B-52’s ■ and the KC-135’s, when preparing to. land on the southeast end of runway 14,- have generally entered the airspace above the southern portion of the plaintiffs’ property at an altitude of about 386 feet from the surface Of the ground; they have gradually descended at a 2.5-degree glide slope; and they, have been at an altitude of about 124 feet from the surface of the ground when they have emerged from the airspace above the plaintiffs’ property at the northern boundary of the property.

On takeoffs toward the southeast from runway 14, the KC-135’s have frequently been at an altitude of about 375-feet from the surface of the ground upon entering the airspace above the northern portion of the plaintiffs’ property* On the other hand, the B-52’s are high-performance aircraft, and they have generally been at an altitude of about 1,000 feet from the surface of the ground upon entering the airspace above the northern portion of the plaintiffs’ property immediately after taking off toward the southeast from runway 14.

There is no evidence in the record concerning the effect of flights by KC-135’s at low altitudes over the plaintiffs’ property. With respect to low flights by the B-52’s, however, the evidence shows that this aircraft, in operation, is the noisiest of all the aircraft mentioned in any- part of this opinion; that it creates such turbulence as it flies through the air that heavy vibration is caused to persons and objects on the ground in the vicinity; and that, when the wind is right, smoke and the scent of burning fuel drift from the engines of the aircraft to the ground. The evidence further shows that cattle on the plaintiffs’ property, previously' ■unaccustomed to B-52 flights overhead, have been stampeded by B-52’s flying low over the property, although cattle become accustomed to such overhead flights within 4 or 5 weeks after being brought on the property. In addition, the noise of a B-52 flying low above the plaintiffs’ property makes conversation on the ground below impossible. Even a person who is yelling at such a time cannot be understood. Also, the flight of a B-52 above the plaintiffs’ property at a low altitude causes an interruption of farm work while the aircraft is overhead, as the workmen must use their hands to protect their ears at such a time.

Thus, although the evidence in this record shows that the B-52’s, after their advent at Barksdale Air Force Base in August 1958, have not regularly and frequently flown through the airspace over the plaintiffs’ property at altitudes lower than the B-47 flights discussed in parts I and II of this opinion, the evidence does establish that the B-52 flights at altitudes as low as 124 feet above the surface of the ground have had a substantially greater effect upon the use and enjoyment of the plaintiffs’ property than the B-47 flights at similar altitudes. In this connection, the evidence further shows that the beginning of the B-52 flights caused a decrease in the fair market value of the plaintiffs’ property.

In some of the earlier avigation easement cases decided by this court, it was indicated that the taking by the Government of an easement of flight over a tract of land at a certain elevation empowered the Government thereafter to utilize the affected airspace for the operation of every kind of aircraft. For example, see the court’s judgment in Adaman Mutual Water Co. v. United States, supra, 143 Ct. Cl. at pp. 935-936. In more recent cases, however, the trend has been away from the earlier view. Of particular significance from the standpoint of the present litigation is the court’s decision in Awry v. United States, 165 Ct. Cl. 357, 330 F. 2d 640 (1964).

The Avery case involved, inter alia, certain parcels of land which were situated within the approach zone of a runway at. a Naval Air Station in Florida. In October 1953, the Government acquired by condemnation a perpetual easement of flight over such lands for its “aircraft,” without any express-limitation as to type, at elevations as low as 29 feet above the ground. At the time when the avigation easement was acquired, the Government was operating over the parcels of land a type of aircraft that had one turbojet engine and two reciprocating engines. Commencing in January 1957, the Government began to operate twin-engine jet bombers over the lands. These bombers were heavier, they made more noise, and they caused greater vibration than the earlier aircraft; and the evidence showed that the introduction of the new type of aircraft had the effect of reducing the value of the lands. The court phrased the question before it as being “whether the introduction of larger, heavier, noisier aircraft can constitute a fifth amendment taking of an additional easement even though new aircraft do not violate the boundaries of the initial easement” (165 Ct. Cl. at pp. 359-360). The court answered this question in the affirmative, holding “that a new and further taking occurred in 1957” (165 Ct. Cl. at p. 362). A judgment was awarded to the owners of the affected lands.

The court’s decision in Avery seems clearly to require that the beginning, in August 1958 of regular and frequent flights by B-52’s over the plaintiffs’ property at altitudes as low as 124 feet from the surface of the ground be regarded as a new taking of an avigation easement for larger, noisier aircraft in the airspace previously utilized by B-47’s and other aircraft. This view will necessarily lead to the entry of a judgment for the plaintiffs with respect to the damages that they sustained by virtue of the new taking.

The plaintiffs’,property is zoned residential-agricultural. At all times material to this litigation, it has been used for agricultural purposes by lessees of the plaintiffs. The land is generally level, and consists of three types of soil — sandy loam (265 acres), silty clay loam (90 acres), and clay (211 acres). The sandy loam soil is highly productive and is excellent for the growing of row crops, such as cotton; and the silty clay loam is a fairly good soil for row crops. The clay soil is stiff and is suitable for use as pasture land. There are no buildings of significance on the property.

The expert witnesses who testified at the trial, including those presented by the defendant, were in agreement that, just before the beginning of the B-52 flights at low altitudes over the plaintiffs’ property in August 1958, some of the acreage in the western portion of the tract was suitable for subdivision into residential lots, and that such acreage had a substantially greater value for subdivision purposes than for agricultural purposes. The experts differed, however, regarding the extent of the acreage that was suitable for subdivision into residential lots, regarding the value of the acreage for subdivision purposes, and regarding the extent (if any) to which this potential use was affected by the beginning of the B-52 flights at low altitudes over the property.

With respect to the problem of the extent of the acreage that was suitable for subdivision into residential lots just prior to the beginning of the low B-52 flights over the plaintiffs’ property, the opinions of the experts ranged from a low of 94 acres to a high of 141 acres. It seems to me, in this connection, that the most conservative estimate is the most persuasive one. It must be remembered that, prior to the advent of B-52’s at Barksdale Air Force Base, the central portion of the plaintiffs’ property had actually been subjected to regular and frequent overflights by various types of aircraft, including 6-engine jet bombers, at altitudes as low as 124 feet from the surface of the ground; and that the defendant really had the right to operate such aircraft over the western portion of the property at similar low altitudes. These factors, in my opinion, would have a very limiting effect on the size of the strip of land in the western portion of the property that would be regarded as desirable for residential purposes by potential purchasers of building lots. Hence, I have accepted the 94-acre figure as being the appropriate one for the purpose now under consideration.

Turning to the question of the value for subdivision purposes of the 94-acre strip of land mentioned in the preceding paragraph, the opinions of the experts on valuation ranged from a low of $500 per acre to a high of $1,500 per acre. The most significant factual evidence bearing on this point pertained to the sale for subdivision purposes in April 1958 of some acreage adjoining the plaintiffs’ property on the west, at a price of $1,600 per acre. In relating that sale to the value of the 94-acre portion of the plaintiffs’ property for subdivision purposes, there are two factors that merit special consideration. In the first place, the other land adjoins the main highway serving the general area, whereas the plaintiffs’ property is located about a mile from the main highway; and, secondly, the other land was not (so far as the evidence in this record shows) subject to an avigation easement, whereas the plaintiffs’ property was already subject to an avigation easement for flights by aircraft, including 6-engine jet bombers, at altitudes as low as 124 feet from the surface of the ground. When these considerations are taken into account, it is my conclusion that the 94-acre parcel of the plaintiffs’ property had a value of about $1,000 per acre for subdivision purposes just before B-52 flights at low altitudes over the plaintiffs’ property began in August 1958.

The plaintiff’s expert witnesses expressed the opinion that the value of a portion of the plaintiffs’ property for subdivision purposes was completely destroyed by the beginning of the B-52 flights at low altitudes over the property. On the other hand, the defendant’s expert witnesses were of the opinion that the prospective use of a portion of the plaintiffs’ property for subdivision purposes was unaffected by the low B-52 flights. On this point, Í find the opinion of the plaintiffs’ experts to be the more persuasive, in the light of the factual evidence concerning the great noise and the heavy vibration caused by the B-52 flights at low altitudes. In this connection, it is my finding that, after the beginning of the B-52 flights in August 1958, the highest and best use of the 94-acre parcel previously mentioned was for agricul.ture, and that this parcel had a fair market value of $35.0 per acre for agricultural use.

Except for the 94-acre parcel previously discussed in this part of the opinion, the highest and best use of .the plaintiffs’ property was not affected by the advent of B-52’s ■at Barksdale Air Force Base. The highest and best use of the property was for agriculture just prior to the advent of the B-52’s, and this continued to be the highest and best use of the property after the advent of. the B-52’s. While B-52 flights over the property at low altitudes interfered somewhat with farming operations, the evidence in the record is not sufficient to permit such interference to be measured in monetary terms.

It is my finding that the plaintiffs’ property had an overall fair market value of $216,300 just before the B-52 jet bombers began to fly regularly and frequently through the airspace above the property at low altitudes in August 1958; and that, just after such flights began, the plaintiffs’ property had a fair market value of $155,200. Hence, - the beginning of such flights diminished the fair market value of the plaintiffs’ property to the extent of $61,100.

On the basis of the court’s decision in Avery v. United States, supra, I recommend that a judgment in the amount of $61,100 be entered for the plaintiffs.

FINDINGS of Fact

1. (a) The plaintiff A. J. Hodges Industries, Inc., is a corporation organized and existing under the laws of the State of Louisiana and doing business in that State.

(b) The plaintiff Union Producing Company is a corporation organized and existing under the laws of the State of Delaware and doing business in the State of Louisiana.

2. (a) The plaintiffs are the owners of a tract of land located in Section 12, Township 17 North, Range 13 West, and in Section 7, Township 17 North, Eange 12 West, Bossier Parish, Louisiana. The tract was acquired by the plaintiffs in 1947, and it originally included 595.334 acres. However, during the period since 1947, the United States has acquired and now owns in fee 40.6 acres of the original tract. The United States has also acquired a clearance easement over another 223.13-acre portion of the original tract (see finding 7). The plaintiffs now own in fee 554.744 acres, subject to the clearance easement mentioned in the preceding sentence and subject to certain rights of the Bossier Levee District, which has expressly waived any right that it might have to participate in the judgment, if any, awarded to the plaintiffs in this action.

(b) In conveying to the United States on April 25, 1961, 11.58 acres of the 40.6 acres mentioned in paragraph (a) of this finding as having been acquired by the Government from the plaintiffs, the plaintiffs reserved with respect to the 11.58-acre parcel any right that they might have to damages arising out of the claim involved in this action. Consequently, general references in subsequent findings to “the plaintiffs’ property,” “the land involved in this case,” etc., will include not only the 554.744 acres mentioned in the final sentence of paragraph (a) of this finding, but also the 11.58 acres mentioned in this paragraph.

3. The plaintiffs’ property is located approximately 4 miles southeast of Bossier City, Louisiana, and approximately 1 mile east of U.S. Highway 71, which is the principal traffic artery to Bossier City from the south.

4. (a) The land involved in this case is generally level. It consists of three types of soil — sandy loam (265 acres), silty clay loam (90 acres), and clay (211 acres). The property is zoned residential-agricultural, and, at all times material to this litigation, it has been used for agricultural purposes by lessees of the plaintiffs. The sandy loam soil is highly productive and is excellent for the growing of row crops, such as cotton; and the silty clay loam is a fairly good soil for row crops. The clay soil is stiff and is suitable for use as pasture land.

(b) There are no buildings of significance on the plaintiffs’ property.

5. The plaintiffs’ property adjoins Barksdale Air Force Base, a large and busy installation of the United States Air Force. Since about February 1951, the base has been under the control of the Strategic Air Command. The south boundary line of the base and the north boundary line of the plaintiffs’ land are contiguous for a distance of approximately 1 mile.

6. (a) The main runway at Barksdale Air Force Base is numbered 14, and it is a northwest-southeast runway. This runway was originally completed in August 1943 to a length of 10,156 feet. In November 1955, runway 14 was extended on the southeast end for an additional distance of 1,600 feet. Since November 1955, runway 14 has been 11,756 feet in length. Bunway 14 has a 1,000-foot overrun beyond the southeast end, but this is never used for ordinary takeoffs or landings by aircraft, although it may be used for such purposes in emergencies.

(b) All jet aircraft taking off from or landing at Barks-dale Air Force Base have used runway 14.

(c) The north boundary line of the plaintiffs’ property is approximately 1,840 feet from the southeast end of runway 14, as extended in November 1955. The projected center line of the runway bisects the plaintiffs’ land for a distance of more than a mile.

7. (a) In connection with the November 1955 extension of aranway 14 at Barksdale Air Force Base, the United States ^acquired by condemnation on May 8, 1956, a clearance easement over 223.13 acres of the 554.744 acres mentioned in finding 2(a) as still being owned by the plaintiffs. The 223.13-acre parcel is situated directly to the southeast of the southeast end of runway 14; and the parcel is bisected by the proj ected center line of that runway.

(b) The clearance easement referred to in paragraph (a) of this finding conferred upon the United States the following rights over the parcel affected by the easement:

(1) The continuing perpetual right to top, to cut to ground level, to remove, and to prohibit the growth of trees, bushes, shrubs, or any other perennial growth or undergrowth infringing upon, extending into, extending above, or which could in the future infringe upon, extend into, or extend above the Glide Angle Plane and/ or Transitional Surface as described in Schedule Z attached to the complaint.
(2) The continuing perpetual right to remove, to raze, to destroy, and to prohibit the future construction of buildings or portions thereof, other structures or portions thereof, land, embankments of earth and other materials infringing upon, extending into, or extending above the Glide Angle Plane and/or Transitional Surface as described in Schedule Z.
(3) The right of ingress to, egress from, and passage on the lands for the purpose of exercising the rights taken for said public uses. [Reserving, however, to the landowners, their heirs, executors, administrators, successors, and assigns all right, title, interest, and privilege as may be exercised and enjoyed without interference with or abridgment of the rights hereby taken for said public uses.

'(c) After acquiring the clearance easement referred to in paragraph (a) of this finding, the United States in August 1956 cut down and removed approximately 178 pecan trees from the area affected by the clearance easement. A number of these trees, approximately 60 to 75 feet in height, were situated near the boundary line between the plaintiffs’ land and Barksdale Air Force Base.

(d) As compensation for the clearance easement and the removal of the pecan trees, the plaintiffs received $81,891.25, ■together with interest at the rate of 6 percent per annum on the portion of the award that had not been deposited with the court at the time of the taking.

8. (a) Flying activities began at Barksdale Air Force Base in November 1932. The first aircraft assigned to the base were P-12 and P-26 single-engine pursuit planes. In 1937, A-18 attack aircraft were assigned to the base, and also B-17 4-engine bombers. The inventory of aircraft at the base was increased in 1940 with the assignment of P-40 single-engine pursuit and A-20 twin-engine attack aircraft.

(b) In the latter part of 1940, all tactical aircraft were reassigned to other airfields, and Barksdale was used thereafter for a time as a training base. Four flying schools were maintained there, and they used B-10, B-12, B-18, AT-6, AT-12, P-35, and P-36 aircraft.

(c) By January 1942, all the flying schools had been moved from Barksdale; and in February 1942, B-24 4-engine bombers were assigned there. By July 1942, all the B-24’s had been transferred from Barksdale and had been replaced with B-25 and B-26 twin-engine bombers. These aircraft remained at Barksdale until 1947.

(d) All the aircraft mentioned in this finding were propeller-driven.

9. The first jet aircraft assigned to Barksdale Air Force Base were B-45 4-engine jet bombers of the 47th Bombardment Wing, which was the first jet bomber group in the Air Force. That wing, with its B-45 jet bombers, arrived at Barksdale in November 1948. The evidence does not show for how a long a period of time the operation of B-45’s at Barksdale was continued.

10. The 3d Strategic Support Squadron, equipped with C-124 4-engine propeller-driven cargo aircraft, was assigned to Barksdale Air Force Base in December 1949. C-124-’s have been regularly operated at Barksdale since that time.

11. (a) In February 1951, the 301st Bomb Wing of the Strategic Air Command was assigned to Barksdale Air Force-Base, and in October 1951 the 376th Bomb Wing of SAC was-assigned there. For several years thereafter, these two wings constituted the major tactical organizations flying sorties-from Barksdale.

(b) At the time of its assignment to Barksdale in February 1951, the 301st Bomb Wing was equipped with BB-45 4-engine jet reconnaissance bombers and KB-29 4-engine propeller-driven tankers. During the period April-July 1953, this whig was in the process of replacing its RB-45’s and KB-29’s with B-47 6-engine jet bombers and KC-97 4-en-gine propeller-driven tankers. As of August 1953, the wing had 36 B-47’s and 20 KC-97’s, and it still had 10 KB-29’s. The KB-29’s were apparently disposed of after September 1953. By September 1953, the number of B-47’s had increased to 46. The B-47’s began to operate regularly in September 1953. This wing discontinued its operations at Barks-dale and was transferred elsewhere in April 1958.

(c) When the 376th Bomb Wing arrived at Barksdale in October 1951, it was equipped with B-29 4-engine propeller-driven bombers. In September 1953, some KC-97 4-engine propeller-driven tankers were assigned to this wing. During the month of January 1954, the B-29’s were phased out; and, beginning in February 1954, they were replaced with B-47 6-engine jet bombers. At the end of March 1954, this wing had 29 B-47’s and 22 KC-97’s. The number of B-47’s had increased to 48 by the end of May 1954. The 376th Bomb Wing was transferred to another installation in December 1957.

12. (a) The 4238th Strategic Wing of the Strategic Air Command was organized at Barksdale Air Force Base on March 1,1958.

(b) Beginning in August 1958 and continuing until the present time, B-52 8-engine jet bombers have been assigned to and regularly operated at Barksdale.

(c) From September 1958 until the present time, KC-135 4-engine jet tankers have been assigned to and regularly operated at Barksdale.

(d) The B-52 is almost twice as large as the B-47. The engines of the B-52 develop approximately twice as much thrust as the engines of the B-47.

13. (a) During the period beginning with the completion of runway 14 at Barksdale Air Force Base in August 1943 :and continuing until sometime in December 1956, aircraft of the defendant approaching the base from the southeast immediately before landing-on the southeast end of runway 14 regularly and frequently flew through the airspace above the plaintiffs’ property at altitudes lower than 500 feet from the surface of the ground. When entering the airspace above the plaintiffs’ property at the southern boundary of such property, the aircraft generally were at an altitude of about 456 feet above the surface of the ground, and they gradually descended at a 2.5-degree glide,slope until they were about 194 feet above the surface of the ground by the time they left the airspace over the plaintiffs’ property at the northern boundary of the property.

(b) The aircraft mentioned in paragraph (a) of this finding included the following types: B-25, B-26, B-45, C-124, BB-45, KB-29, B-47, B-29, and KC-97 (see findings 8(b), 9,10, and 11).

(c) During the period mentioned in paragraph (a) of this finding, aircraft of the defendant taking off from runway 14 at Barksdale toward the southeast intruded regularly and frequently into the airspace above the plaintiffs’ property immediately after the takeoffs. The evidence in the record does not show at what altitudes such aircraft flew when passing through the airspace above the plaintiffs’ property, except for the KC-97’s, the C-124’s, and the B-47’s. KC-97’s and C-124’s were frequently at an altitude of about 800 feet from the surface of the ground when they entered the airspace above the plaintiffs’ property at the northern boundary of such property immediately after taking off toward the southeast from runway 14. B-47’s were generally at an altitude of at least 500 feet from the surface of the ground when they entered the airspace above the plaintiffs’ property immediately after taking off toward the southeast from runway 14. In each instance, an aircraft would continue to climb as it passed through the airspace above the plaintiffs’ property.

14. (a) During the period beginning sometime in December 1956, following the removal of the pecan trees from the plaintiffs’ property (see finding 7(c)), and continuing until the present time, aircraft of the defendant approaching Barksdale Air Force Base from the southeast immediately before landing on the southeast end of runway 14 have regularly and frequently flown through the airspace above the plaintiffs’ property at altitudes about 70 feet lower than the 456-to-194-foot descending plane mentioned in finding 13(a). During this later, period, the aircraft preparing to land on the southeast end of runway 14 have generally been at an altitude of about 386 feet from the surface of the ground when entering the airspace above the plaintiffs’ property at the southern boundary of the property; and then, after a gradual descent at a 2.5-degree glide slope; they have been at an altitude of about 124 feet from the surface of the ground when they have emerged from the airspace above the plaintiff s’ property at the northern boundary of the property.

(b) The aircraft mentioned'in paragraph (a) of this finding have included the following types: 0-124, B-47, KO-97, B-52, and KO-135 (see findings 10,11, and 12).

(c) During the period mentioned in paragraph (a) of this finding, 0-124, K0-97, and KO-135 aircraft of the defendant taking off toward the southeast from runway 14 at Barksdale have regularly and frequently intruded into the airspace above the plaintiffs’. property at altitudes of less than 500 feet from the surface of the ground immediately after the takeoffs. 0-124’s and K0-97’s, immediately after taking off toward the southeast from runway 14, have frequently been at an altitude of about 300 feet from the surface of the ground when entering the airspace above the plaintiffs’ property at the northern boundary of the property, KO-135’s have frequently been at an altitude of about 375 feet from the surface of the ground upon entering the airspace above the plaintiffs’ property immediately after taking off from runway 14 toward the southeast. Each of the aircraft mentioned in this paragraph has gradually increased its altitude while flying through the airspace above the plaintiffs’ property.

(d) During the period mentioned in paragraph (a) of this finding, B-47’s and B-52’s have not flown regularly and frequently through the airspace over the plaintiffs’ property at altitudes lower than 500 feet from the surface of the ground immediately after taking off toward the southeast from runway 14. The B-52, in particular, is a high-performance aircraft, and it has generally been at an altitude of about 1,000 feet from the surface of the ground upon entering the airspace above the plaintiffs’ property at the northern boundary of such property immediately after taking off toward the southeast from runway 14. B-47’s have generally been at an altitude of at least 500 feet from the surface of the ground at a similar point in a takeoff toward the southeast from runway

14.Each aircraft has continued to climb while passing through the airspace above the plaintiffs’ property.

15. (a) The evidence in the record relative to interferences with the use and enjoyment of the plaintiffs’ property by aircraft flying through the airspace above the property at altitudes lower than 500 feet from the surface of the ground pertains only to the B-52 and B-47 jet bombers, as indicated in the succeeding paragraphs of this finding.

(b) The evidence shows that the B-52, in operation, is the noisiest of all the aircraft mentioned in these findings, that it creates such turbulence as it flies through the air that heavy vibration is caused to persons and objects on the ground in the vicinity, and that, when the wind is right, smoke and the scent of burning fuel drift from the engines of the aircraft to the ground. Cattle on the plaintiffs’ property, previously unaccustomed to B-52 flights overhead, have been stampeded by B-52’s flying over the plaintiffs’ property, although cattle became accustomed to such overhead flights within 4 or 5 weeks after being brought on the plaintiffs’ property. The noise of a B-52 flying above the plaintiffs’ property makes conversation on the ground below impossible. Even a person who is yelling at such a time cannot be understood. The flight of a B-52 above the plaintiffs’ property causes an interruption of farm work while the aircraft is overhead, as the workmen must use their hands to protect their ears at such a time.

(c) The evidence concerning interferences by B-47 flights is meager. It merely appears from the evidence in this record that B-47’s flying over the plaintiffs’ property were noisy, that such flights caused some vibration to persons and objects on the ground, and that when cattle previously unaccustomed to such flights were brought on the property, they were made nervous by B-47 overhead flights, but they did not stampede.

16. The regular and frequent flights'by B-A7 jet bombers of the defendant through the airspace above the plaintiffs’ property during the period from September 1953 until December 1956 at altitudes as low as 194 feet from the surface of the ground constituted direct, immediate, and substantial interferences with the use and enjoyment of the plaintiffs’ property.

17. It was the intention of the defendant, when it began to operate B-47 jet bombers regularly and frequently over the plaintiffs’ property in September 1953 at altitudes as low as 194 feet from the surface of the ground, that flights at such altitudes by B-47’s and other aircraft of the defendant should continue for the indefinite future.

18. Not later than September 1953, the defendant took a perpetual easement of flight in the airspace over the plaintiffs’ property at an elevation of 194 feet from the surface of the ground, and higher, for B-47 jet bombers and other aircraft causing similar or less interference with the use and enjoyment of the subjacent property.

19. The taking of the easement of flight mentioned in finding 18 occurred more than 6 years prior to the filing of the petition in this case on April 16, 1962.

20. The regular and frequent flights by B-47 jet bombers of the defendant through the airspace above the plaintiffs’ property during the period from December 1956 until April 1958 at altitudes as low as 124 feet from the surface of the ground constituted direct, immediate, and substantial interferences with the use and enjoyment of the plaintiffs’ property.

21. It was the intention of the defendant, when it began to operate B-47 jet bombers regularly and frequently through the airspace over the plaintiffs’ property in December 1956 at altitudes as low as 124 feet from the surface of the ground, that flights at such altitudes by B-47’s and other aircraft of the defendant should continue for the indefinite future.

22. In December 1956, the defendant took a perpetual easement of flight in the airspace over the plaintiffs’ property beginning at an elevation of 124 feet from the surface of the ground and extending upward to an elevation of 194 feet from the surface of the ground, for B-47 jet bombers and other aircraft causing similar or less interference with the use and enjoyment of the subjacent property.

23. The evidence in the record does not show that the value of the plaintiffs’ property was diminished by the taking of the easement of flight referred to in finding 22.

24. The beginning in August 1958 of regular and frequent flights by B-52 jet aircraft through the airspace above the plaintiffs’ property at altitudes as low as 124 feet from the surface of the ground diminished the value of the plaintiffs’ property. Immediately prior to the beginning of such flights, approximately 94 acres of the plaintiffs’ property, situated in the western portion of the tract owned by the plaintiffs, was suitable for subdivision into residential lots and had a fair market value for such purpose of approximately $1,000 per acre. The advent of B-52’s at Barksdale Air Force Base, and the beginning of regular and frequent flights by such aircraft through the airspace above the plaintiffs’ property at low altitudes, destroyed the suitability of the 94-acre parcel for subdivision into residential lots. Thereafter, the highest and best use of the 94-acre parcel was for agriculture, and it had a fair market value for such purpose of approximately $350 per acre.

25. Except for the 94-acre parcel mentioned in finding 24, the highest and best use of the plaintiffs’ property was not affected by the advent of the B-52’s at Barksdale Air Force Base. The highest and best use of the property was for agriculture prior to the advent of the B-52’s, and this continued to be the highest and best use of the property after the advent of the B-52’s. While B-52 flights overhead interfered somewhat with farming operations on the plaintiffs’ property, as indicated in finding 15(b), the evidence in the record is not sufficient to permit such interference to be measured in monetary terms.

26. The plaintiffs’ property had a fair market value of $216,300 just before B-52 8-engine jet bombers began to fly regularly and frequently through the airspace above such property at low altitudes in August 1958. Just after such flights began, the plaintiffs’ property had a fair market value of $155,200. Hence, the beginning of such flights diminished tbe fair, market value of the plaintiffs’ property to the extent of $61,000.

27. In August 1958, the defendant took a perpetual easement of flight in the airspace over the plaintiffs’ property at an elevation of 124 feet from the surface of the ground, and higher, for B-52 jet bombers and other aircraft causing similar or less interference with the use and enjoyment of the subjacent property.

CONCLUSION OF Law

Upon the foregoing findings of fact, which are made a part of the judgment herein, the court concludes as a matter of law that the plaintiffs are entitled to recover, and it is therefore adjudged and ordered that they recover of and from the United States sixty-one thousand one hundred dollars ($61,100), plus an .amount computed at the rate of four (4) percent per annum on $61,100 from August 1, 1958, to the time of payment, all as just compensation for the taking of an easement of'flight over their property.

This is contingent upon the plaintiffs’ executing and delivering to the defendant a deed conveying a perpetual easement of flight in the airspace over the 554.744 acres referred to in the final sentence of finding 2(a), beginning at an elevation of 124 feet from the surface of the ground and extending upward indefinitely, and authorizing the defendant to utilize the easement for the operation of B-52 jet bombers and other aircraft causing similar or less interference with the use and enjoyment of the subjacent property.  