
    S. K. JENSEN AND ETHEL B. JENSEN v. THE UNITED STATES OPAL L. JONES, EXECUTRIX OF THE ESTATE OF CARRIE CARLTON, A/K/A CATHERINE CARLTON: FRANKLIN S. CARLTON, OPAL L. JONES: MONA MARIE EYESTONE; AND VANN V. JONES v. THE UNITED STATES WALTER R. BURDGE AND WINSTON S. WHEELER, CO-TRUSTEES v. THE UNITED STATES C. A. McCLAUGHRY AND EDITH M. McCLAUGHRY v. THE UNITED STATES
    No. 52-58
    No. 53-58
    No. 58-58
    No. 66-58
    [Decided July 18, 1962]
    
      
      George B. Powers for the plaintiffs. Foulston, SiefTcin, >Schoeppel, Bartlett da Powers were on the briefs.
    
      Herbert Pittle, with whom was Assistant Attorney General Ramsey Claris, for the defendant.
   Davis, Judge,

delivered the opinion of the court:

These four related cases, tried as one, in which the plaintiffs sue for just compensation for the taking of avigation easements over their properties require us to decide (a) whether the plaintiffs’ claims are barred by limitations as having accrued more than six years before the filing of the petitions, and (b) if not, what is the diminution in value attributable to the taking. The Government does not deny that a taking occurred and implicitly concedes that if the limitations defense is rejected it is proper for us to hold that there was a compensable taking within the limitations period (except for one area). The plaintiffs own six tracts immediately to the south of the two north-south runways of McConnell Air Force Base, outside of Wichita, Kansas. These properties are and have been farm lands; three contain farm improvements, while the others do not.

The main facts pertinent to the time when plaintiffs’ cause of action accrued are these: The Wichita Municipal Airport formerly occupied the land which became the McConnell Air Force Base. Large numbers of commercial, private, and military propeller planes were using the Airport, and beginning in 1950 it was also used for testing by the adjacent Wichita Boeing Airplane Company. Shortly after July 1950, the Air Force decided to locate a base at Wichita to train combat-ready crews to fly the B-47, a 6-engine jet bomber with a wingspan of 116 feet and a length of 109.8 feet. The Wichita Airport was selected because of its proximity to Boeing, which began in 1950 to produce the B-47 for the Air Force. Accordingly, the Airport was acquired by the Federal Government in June 1951 and the new air training base (McConnell Air Force Base) was activated at that time. Commercial planes were allowed to continue to use the facilities of the field until 1954, when all civilian traffic was terminated and transferred to the new Wichita Municipal airport which had been constructed in the meantime. The Air Force began gradually to occupy the Base in 1951-1952, moving into the administration building in April 1952. McConnell became the world’s first B-47 base and it has continued as an important center for jet bombers. The larger 8-engine B-52 jets, also produced by Boeing, began to come onto the field in the spring of 1956.

In December 1950, Boeing delivered the first B-47 to the Air Force at the then Municipal Airport. By June 1951, when the Air Force Base was opened, only 11 B-47’s had been delivered; of these the Air Force retained no more than 8 at the Base. By the end of 1951 a total of 60 had been delivered, but as yet very few were assigned to McConnell. In 1952, 300 more B-47’s came from Boeing but the total at the Base increased to only 17. During this time (late 1950-early 1953), the B-47’s stationed at McConnell were used primarily for long-distance training flights which were isolated and infrequent events; however, there were also a substantial number of flights testing new planes as they came from the Boeing plant. For most of the rest of 1953, B-47 flight operations were transferred elsewhere to permit completion of a new runway at McConnell; training and testing operations continued and the training work increased in intensity in the latter part of the year. Beginning in December 1953 (after the two runways could be used), and particularly during the early months of 1954, the flights of B-47’s were very frequent and they became the predominant aircraft using the runways — in December 1953 the Air Force began regularly to maintain about 90 B-47’s at McConnell— particularly after April 1,1954, when civilian use of the Base ended. The monthly average of take-offs and landings was about 20,000. By May 1958, there was an average of 700 flights cleared daily over the usual 5-day week; this was an average of a take-off or landing every two minutes on the north-south runways (which alone affected plaintiffs’ property).

Over the years, these north-south runways have been developed to meet the increasing needs of the field. Prior to 1950 the single north-south runway was 8,000 feet long; in 1950 Boeing extended it (to the south) to 10,000 feet; in 1951 the Air Force lengthened it (again to the south) to 12,000 feet. In 1953 a second, parallel, north-south runway was built, also 12,000 feet in length. The B-47’s use the north-south runways exclusively, except for emergencies.

Plaintiffs’ lands are located (except for Wheeler tract #3) within the approach zone to the southern end of these north-south runways. In taking off (but not in landing) to the south, the planes pass over these lands. The normal heights of a B-47 taking off over the Jensen land vary from about 100 feet to as high as 500 feet, the mean altitude being about 200 feet at the north edge and 300 feet at the south edge. For the Jones property the variation is from 200 feet on the north edge to 1,000 feet on the southern line,, with the mean altitude being 300 feet on the north and about 500 feet on the south. The variation for the McClaughry tract and the adjacent Wheeler tract #1 is the same, except that the mean altitudes are 400 feet on the north and 500 feet on the south. The mean altitude for Wheeler tract #2 is 500 feet on the north and 600 feet on the south. For Wheeler tract #3 the altitude on take-offs varies from 500 to above 1,000 feet, and is generally more than 700 feet. Except for this last property (Wheeler tract #3), the relatively few landings passing over plaintiffs’ lands are substantially lower than on taking off.

It is clear from these facts and from the Trial Commissioner’s detailed findings, which we adopt, that — putting Wheeler tract #3 to one side — the flights of B-47’s from and to the McConnell base have directly and immediately interfered with the use and enjoyment of plaintiffs’ properties. The intensity of the noise, as well as the frequency and low level of the flights by these big planes, are comparable to those elements in our earlier decisions involving jet aircraft; in addition, there was proof of the annoying use of floodlights (as to some of the tracts), a pall of black smoke over the area, and the rather frequent falling of dangerous objects.

The first disputed question is when did this interference become so serious that a taking occurred and a cause of action arose. The defendant claims that the taking occurred before February 1952 and therefore that these suits, filed in February 1958, are out of time. The plaintiffs, on the other hand, urge that no taking at all took place until 1953. We have concluded that there was no taking prior to the limitations period (Feb. 1952 to Feb. 1958), and therefore we are not required to decide in this case the application of the statute of limitations, or the proper measure of recovery, in the situation where a taking of an avigation easement occurs prior to six years but there is another such taking, or a grave intensification of the initial interference, within the six-year span before suit. Compare Klein v. United States, 152 Ct. Cl. 221, cert. denied, 366 U.S. 936, and Davis v. United States, 155 Ct. Cl. 418, 295 F. 2d 931.

There is, unfortunately, no simple litmus test for discovering in all cases when an avigation easement is first taken by overflights. Some annoyance must be borne without compensation (United States v. Causby, 328 U.S. 256, 266; Allegheny Airlines v. Village of Cedarhurst, 238 F. 2d 812, 815-816 (C.A. 2)). The point when that stage is passed depends on a particularized judgment evaluating such factors as the frequency and level of the flights; the type of planes; the accompanying effects, such as noise or falling objects; the uses of the property; the effect on values; the reasonable reactions of the humans below; and the impact upon animals and vegetable life. The Government’s argument that the taking in this case occurred before February 1952 (i.e., prior to six years before the filing of the petitions) fails because it overstresses some of these elements and neglects others which are critical.

The gist of the defense is that plaintiffs’ properties must have been seriously affected and reduced in value during 1950-1951 (a) by the very large number of take-offs and landings in that period by aircraft of various kinds, including military planes, as well as (b) by the number of test and operational flights of B-4/Ts, in particular, which were made in 1950-1951. The first factor — the large total of all take-offs and landings (see footnote 2, supra) — is not at all persuasive. By far the major share was by propeller planes (many of them light craft) which have been recognized as normally causing less serious interference than large jets (although in proper circumstances propeller flights, too, can result in a taking). Our cases document this general proposition. There is also an insufficient showing on this record of the proportion of these planes from the Air Base which passed over the plaintiffs’ lands, the altitudes at which they flew, or the frequency of their passage. Moreover, we have the plaintiffs’ flat disavowal that these earlier flights in 1950, 1951, and early 1952 caused any serious interference or diminution in value. Plaintiffs’ position cannot be accepted as conclusive (since their interest is to advance the date of taking beyond February 1952), but it is consistent with the known objective facts and must be given considerable weight, particularly in the absence of adequate countervailing proof that there was actually a greater effect from these flights than plaintiffs admit.

Similarly, we do not infer from this record that a taking occurred as a result of the test and operational flights of B-47’s in 1950,1951, and early 1952 (see footnote 3, supra). At that time the tests of new aircraft were relatively infrequent, about two a day. The number of B-47’s actually stationed at the Base was likewise small, and their flights isolated and infrequent. McConnell Air Force Base, as a whole, was still in the process of creation and construction; the new north-south runway was not built until 1953. The plaintiffs assert, too, that these earlier B-47 flights did not affect the value or use of their properties, and this concession. is understandable when one compares the intensity of the B-47 activity beginning after the spring and summer of 1952 with the rudimentary operations of the prior period. Unless there has been significant depreciation in value or enjoyment of a property, this court has not considered the mere advent of jet aircraft as the signal of a taking. See, e.g., Bacon v. United States, 155 Ct. Cl. 441, 295 F. 2d 936; Wilson v. United States, 151 Ct. Cl. 271.

The taking did occur, we hold, sometime after the first quarter of 1952; and, accordingly, the plaintiffs’ claims are not barred by limitations. It is somewhat difficult to select a more precise time, but we are required to do so for the purposes of valuation and the computation of the amounts payable for delay in payment (commonly called interest). The Trial Commissioner has determined that — except for Wheeler tract #3, the land farthest removed from the runways — the frequent flights of B-47’s “over a period of about a year from the latter part of 1952” caused a reduction in the value of the properties which occurred “between the latter part of 1952 and the latter part of 1953” (findings 38, 41). On a review of the evidence, we accept the finding that both the taking and the depreciation occurred over a year’s time, and, because there is no more appropriate date within that period, we choose January 1, 1953, as the day from which delay-payments are to be computed, so as to assure the plaintiffs of full compensation for the monies they should have had, in theory, as soon as the reductions in value occurred.

The remaining issue concerns the amounts to which plaintiffs are entitled for the taking. The Commissioner has found that prior thereto the highest and best use of the lands was (in the main) agricultural, not residential, and he has evaluated the loss on that basis — it being agreed that after the taking the lands had no more than agricultural value. Plaintiffs insist that were it not for these overflights of B-47’s in 1952 and 1953 their property would have been ripe for residential development, and therefore that it was worth considerably more than agricultural land. We agree, however, with the Commissioner and adopt his findings which are appropriately grounded (with a permissible shift in the time of valuation) in the more solid evidence of an appraiser wbo evaluated the sales of comparable property in the vicinity, took account of the location of and the facilities available to plaintiffs’ land, and recognized the unlikelihood of a new residential development springing up so close to the north-south runways of the airfield. Plaintiffs (and their appraisers) give insufficient weight to the cardinal fact that, prior to the taking by the B-47 flights in 1952 and 1953, the properties were adjacent to the busy activity of, at first, the Municipal Airport and, later, the Air Force Base. In all likelihood, even before the jet flights began to interfere directly with the use and enjoyment of plaintiffs’ agricultural land (and thus to take the easement for which compensation is sought), the nearness of this large air-field and its potentiality of growth had already acted to blight any bud of residential value. Such an earlier diminution-in-value or check on further development and growth, linked to the existence of the airport and its manifold activities (including previous overflights which did not impose a servitude), cannot be attributed to the later taking. That prior loss, if such it be, was one for which the United States is not responsible — just as the United States could not avoid paying for a prior independent gain in value. Cf. United States v. Miller, 317 U.S. 369, 376-377; United States v. Cors, 337 U.S. 325, 332-333; United States v. Virginia Electric & Power Co., 365 U.S. 624, 633-636.

For these reasons, we accept the Commissioner’s findings as to the pre-taking value of the six tracts and the depreciation due to the B-47 flights. The latter amounts plus a sum to compensate for delay in payment constitute just compensation for the perpetual easements taken by the defendant. Since there was no change in the value of the Wheeler tract #3 — the most outlying of the areas and the only one over which the flights passed at an average altitude of more than 500 feet — we are not required to decide whether the United States, as taker, can be held liable for overflights above the 500-foot ceiling fixed by the Civil Aeronautics Board. See Matson v. United States, 145 Ct. Cl. 225, 229; United States v. Causby, 328 U.S. 256.

Judgment will be awarded to the plaintiffs in No. 52-58 for $10,000; to the plaintiffs in No. 53-58 for $19,000 ; to the plaintiffs in No. 58-58 for $13,000; and to the plaintiffs in No. 66-58 for $4,700. In each case, there will be added a sum computed at 4 per cent per annum from January 1, 1953, to date of payment, to compensate for delay in payment, as part of just compensation. The respective plaintiffs (or other appropriate persons empowered to do so) will execute deeds conveying to the defendant a perpetual easement of flight for airplanes of any kind over any part of the respective plaintiffs’ properties (except Wheeler tract #3) at and above the following altitudes: 100 feet in No. 52-58; 100 feet in No. 53-58; 200 feet in No. 58-58 for Wheeler tracts #1 and 2; and 200 feet in No. 66-58.

It is so ordered.

Durfee, Judge; Laramoee, Judge; Whitaker, Judge; and JoNes, Chief Judge, concur.

FINDINGS OF FACT

The court, having considered the evidence, the report of Trial Commissioner William E. Day, and the briefs and arguments of counsel, makes findings of fact as follows:

1. (a) The plaintiffs in case number 52-58, S. K. Jensen and Ethel B. Jensen, husband and wife, are citizens of the United States and of the State of Kansas.

(b) The plaintiffs in case number 53-58, Opal L. Jones, Franklin S. Carlton, Mona Marie Eyestone, and Vann Y. Jones, are citizens of the United States and of the State of Kansas. Prior to her death on September 6, 1957, Carrie Carlton, a/k/a Catherine Carlton, was a citizen of the United States and of the State of Kansas. Her estate is still open and being administered in the Probate Court of Sedgwick County, Kansas, by her duly qualified and appointed executrix, Opal L. Jones.

(c) The plaintiffs in case number 58-58, Walter R. Burdge and Winston S. Wheeler, are citizens of the United States and of the State of Kansas. They are co-trustees of an irrevocable living trust created by Kuth S. Wheeler as grantor on July 22, 1941, in which Winston S. Wheeler was the beneficiary of the net income thereof during his life, thereafter the income to go to, and final distribution to be made to, the children (and their descendants) of Ruth S. Wheeler. The original trustees of the trust were the Wheeler Kelly Hagny Trust Company, a corporation organized and existing under the laws of the State of Kansas, and Winston S. Wheeler. Upon the dissolution of the corporate trustee, Walter R. Burdge was duly substituted in place of it as a co-trustee on February 12,1953.

(d) The plaintiffs in case number 66-58, C. A. Mc-Claughry and Edith M. McClaughry, husband and wife, are citizens of the United States and of the State of Kansas.

2. (a) On and after July 19, 1939, and to the present time, the plaintiffs S. K. Jensen and Ethel B. Jensen, husband and wife, were the owners of the following tract of land in Sedgwick County, Kansas:

The Northwest Quarter (NW%) of section Twenty-four (24), Township Twenty-eight (28) South, Range One (1) East, except for the following portion thereof purchased by the United States in 1951 and 1953: Beginning at a point approximately 1,054.8 feet south of the northeast corner of said quarter section; thence north to the northeast corner thereof; thence west a distance of 1,784.17 feet; thence in a southwesterly direction the distance of 759.99 feet; thence in a southeasterly direction 1,992.86 feet to the point of beginning.

The total acreage remaining in said quarter section, owned by the Jensens, is approximately 118.21 acres.

(b) For many years, and particularly from the year 1952 to the present, the plaintiffs Opal L. Jones, Mona Marie Eyestone, and Vann V. Jones have each owned an undivided one-ninth (%) interest in the following described quarter section of land in Sedgwick County, Kansas. The other undivided six-ninths (%) interest therein was owned for many years by Carrie Carlton, a/k/a Catherine Carlton, particularly since the year 1952, until her death on September 6,1957. That interest is presently held in her estate, and by her will all of the six-ninths interest passed to plaintiff Opal L. Jones, subject to a life estate to an undivided one-half (y2) of said six-ninths (%) in plaintiff Franklin S. Carlton. The quarter section is described as follows:

The Southwest Quarter (SW/4) of Section Twenty-four (24), Township Twenty-eight (28) South, Range One (1) East, containing approximately 160 acres.

For many years prior to her death on September 6, 1957, Carrie Carlton a/k/a Catherine Carlton, also owned the following tract of land in Sedgwick County, Kansas:

The West Half (W%) of the Northwest Quarter (NW!4) °f Section Twenty-five (25), Township Twenty-eight (28) South, Range One (1) East, containing approximately 80 acres.

Such land is now held in her estate, and under her will, title to the property passed to Opal L. Jones, subject to a life estate in an undivided one-half (%) interest therein in Franklin S. Carlton. Both Jones tracts have been in the Carlton family for more than sixty years.

(c) The plaintiffs Walter R. Burdge and Winston S. Wheeler, as co-trustees, are the owners in trust of the following tracts of land in Sedgwick County, Kansas:

Wheeler #1.
The East Half (E%) of the Northwest Quarter (NW/4) and the West Half (W%) of the Northeast Quarter (NE/4) of section Twenty-five (25), Township Twenty-eight (28) South, Range One (1) East, except for 5 acre tract in the Northwest Quarter (NW1/^) of Section Twenty-five (25), Township Twenty-eight (28) South, Range One (1) East, described as:
Beginning 285 feet West of the Northeast corner of the East Half (E%) of said Northwest Quarter (NW/4), thence South parallel with the East line of said East Half (Ey2). 687.06 feet, thence West parallel with the North line of said East Half (E%), 317 feet, thence North 687.06 feet to the North line of said East Half, thence East 317 feet to place of beginning.

The tract owned by said co-trustees is approximately 155 acres in size. The tract has been in the irrevocable trust since 1942.

Wheeler #2.

The Southwest Quarter (SW1^) and the South Half (S%) of the Southeast Quarter (SE14) of Section Twenty-five (25), Township Twenty-eight (28) South, Eange One (1) East, except the following:
Beginning at a point in the West line of the Southwest Quarter (SW%) of Section Twenty-five (25), Township Twenty-eight (28) South, Eange One (1) East, ana 1293 feet North of the Southwest comer of said Section 25; thence East on an angle of 90 degrees a distance of 745 feet; thence North at an angle of 90 degrees a distance of 300 feet; thence West 745 feet to a point in the West line of Section 25; thence South 300 feet to the point of beginning.

The tract owned by said co-trustees is approximately 235 acres in size. It has been in the irrevocable trust since 1949.

Wheeler #3.

The Southwest Quarter (SW%) and the West Half of the Southeast Quarter (W%SE%) and the East Half of the Northwest Quarter (E%NW(4), Section Thirty-one (31), Township Twenty-eight (28) South, Eange Two (2) East, consisting of approximately 320 acres.

This tract has been in the irrevocable trust since November 22,1950.

(d) The plaintiffs, C. A. McClaughry and Edith M. McClaughry, are the owners of the following described tract in Sedgwick County, Kansas, pursuant to an installment sales contract executed by them as buyers, and by the co-trustees of the Wheeler trust as sellers, on June 23,1948:

A tract in the Northwest Quarter (NW^4) of Section Twenty-five (25), Township Twenty-eight (28) South, Eange One (1) East, described as:
Beginning 285 feet west of the northeast corner of the East Half (E%) of said Northwest Quarter (NW)4), thence south parallel with the east line of said East Half (E14), 687.06 feet, thence west parallel with the north line of said East Half (E%), 317 feet, thence north 687.06 feet to the north line of said East Half (Ei/2) thence east 317 feet to place of beginning.

The tract is approximately 5 acres in size. The recorded title to said tract still rests in the aforesaid co-trustees since the above plaintiff-purchasers have not completed their installment payments. At the present time the installment payments are current, and, under the contract, a deed was executed at the time of the execution of the contract in 1948, but will not be delivered until the installment payments are completed. The co-trustees have released any interest they might have in the compensation which might be awarded for the taking of the avigational easement by the United States over this tract of land.

3. The tracts of land in this litigation are located at the south end of the north-south runways of McConnell Air Force Base. The northern boundary of this base is adjacent to the southern city limits of Wichita, but about 3 to 3% miles from the business section or center of the city. The Base occupies approximately 2500 acres. It is about 15,000 feet in length in the north to south direction. The plaintiffs’ properties are, and until 1958 were, about 3 miles from the Wichita city limits. There are no structural improvements on the Jones tracts nor on tracts 1 and 2 of the Wheeler property. Farm improvements, not otherwise described, are located on the Jensen, McClaughry and Wheeler #3 tracts. The land south of the runways is fairly level and the elevation of all of the tracts in question is approximately the same as the elevation of the runways, that is, 1371 feet above sea level.

4. McConnell Air Force Base became the world’s first B-47 base. A determination was made by the Air Force, shortly after July 1950, to locate an air base at Wichita for training combat-ready crews to fly the B-47 airplanes. This location was selected due to its proximity to the Wichita Boeing Airplane Company, the aircraft factory pi-oducing the B-47. Air Force officials and the Wichita Board of Park Commissioners conferred and set a price on the municipal airport property which contained about 2500 acres of land in Sedgwick County. Condemnation proceedings followed and tbe Air Force took possession of tbe property on June 1, 1951. On June 5, 1951, tbe new air training base was activated.

Arrangements bad been made at tbe time of purchase of tbe Wichita Municipal Airport to allow tbe commercial airlines to operate from the Base and to utilize tbe administration building until tbe new Municipal Airport was constructed and ready for occupancy. Air Force personnel could not move onto tbe property until dormitories and other housing were constructed. It was necessary that land north of tbe Boeing factory be leased for temporary bousing of personnel in tents and that office and other space be leased in downtown Wichita. Both were accomplished.

By late November 1951 Air Force personnel moved into completed new dormitories on tbe Base. By late April 1952 a sufficient number of commercial business offices had vacated tbe administration building to allow tbe Air Force to begin to move into that building. This was also known as tbe “terminal” budding.

On September 17, 1953, a major change in tbe primary mission of tbe Wichita Air Force Base became effective. The B-47 jet bomber crew training was revamped and additional emphasis was placed on B-47 transition training.

5. Commercial airplanes continued to utilize tbe runways and other airplane facilities until April 1954, when civilian traffic was terminated. Tbe new Municipal Airport bad been constructed in the meantime at a location about 9 or 10 miles east of tbe Air Force Base.

6. Tbe Wichita Boeing Airplane Company, located adjacent to tbe Wichita Municipal Airport, bad been producing tbe B-47 stratojets, six-engine jet bombers, for the Air Force. Beginning in 1950 Boeing used that airport for testing those aircraft. Upon acceptance by the Air Force of such aircraft they were delivered to Air Force personnel and after June 1, 1951, they were either assigned to McConnell or flown from it to other locations.

7. B-47 airplanes were produced at the Boeing Company and delivered to the Air Force from the Municipal Airport, later called Wichita Air Force Base, in the following quantities by months:

1950 1951 1952 1953
January_ 25
February... 25
March_ 26
April_ 27
May_ 28
June_ 27
July.. 22
August_ 30
September.. 36
October_ 35
November.. 22
December-20
Total. 59 300 323

Additional B~47’s continued in production at Boeing and were delivered from the Air Base from January 1954 until the first month of 1957.

8. Prior to 1950 the north-south runway at the Municipal Airport was 8,000 feet in length. It was later extended toward the south. Boeing, in 1950, in order to test-fly and deliver B-47 airplanes, extended the main runway, which was 150 feet wide, and of 7-inch-thick concrete, to 10,000 feet. In 1951 the main runway was further extended by the Air Force to 12,000 feet. In 1953 a runway was constructed parallel to the main runway but 500 feet to the west. Thus, in 1953, there were two north-south runways, each 150 feet wide and 12,000 feet in length. In 1955 the easterly north-south runway was rebuilt but not extended. A heavy duty pavement 30 inches thick was laid and it was widened to 300 feet. The larger B-52 airplane, then in the planning stages, was an important factor in the requirement for a heavy duty pavement.

9, In the spring of 1953 the United States acquired 23 acres of land from the plaintiffs, Jensen. This land is now the southern tip of the Air Base and had been at the northern line of the Jensen property before acquisition.

10. In 1951 there were only eight B-47 planes on the Base, and by the end of 1952 this had increased to only 17. Until 1953, these were used primarily for long distance training flights, and the flights of B-47’s during that time began as isolated and infrequent flights. From about April to December of 1953 B-47 flight operations were transferred to the Air Force Base at Salina, Kansas, and T-33’s to an airport at Kingman, Kansas, pending completion of the runways. Training operations with. B-47 airplanes continued at the Air Base and increased in intensity thereafter. Beginning in December 1953, and particularly during the early months of 1954, the flights of B-47’s became very frequent and since that time they have been the predominant aircraft using the runways. Flights of smaller aircraft such as the T-33’s and reciprocating aircraft were replaced by flights of the B-47’s. After December of 1953 the Air Force acquired and thereafter maintained about ninety B-47’s on the Base.

11. On October 30, 1954 the Chief, Appraisal Section of the local Veterans Administration at Wichita, stated the policy which had been adopted by that office, which was thereafter endorsed by the Loan Guaranty Officer, in the following terms:

❖ * * * *
1. This office has established the following "■Policy1'1 relative to eligibility of dwelling lying within the approach zone, effective November 1,1954:
a. Any existing or proposed construction lying within the approach zone, a conical shaped area extending 11,000 feet from the end of the runways and expanding 4,000 foot width at the extremities, shall be ineligible for G.I. Loan Guaranty. See large scale map.
b. Any existing or proposed construction lying in the “area of objection” that area surrounding and adjacent to the approach zone some 1,500 to 2,000 feet wide, shall have an arbitrary depreciation taken, established at 5% adjacent to the approach zone and decreasing to 1% at the extreme edges of the “area of objection.” See large scale map.
2. This “policy” shall apply to the McConnell Airforce Base, Wichita, Kansas, and the Wichita Municipal Airport. It shall also apply to the Topeka Airforce Base, Topeka, Kansas. The “policy” is subject to change should occasion arise, due to change in type of aircraft, flight control, abandoned runways, etc.
3. This “policy” adopted as a result of consultation and surveys, justifying the terms. It has, of course, been submitted to and approved by the Loan Guaranty Officer as a “local policy.”
/s/ J. W. Lloyd, Jr.
Ene. 1
The above is in full accordance with provisions of the YA Manual M4A-8, Part II, dated December 22, 1955, which incorporated and superseded these provisions originally published in YA Technical Bulletin TB 4A-121, dated 6-22-52. The foregoing determinations were developed from special report requested by the President of the United States, and developed under the supervision of Lt. General James W. Doolittle, dated 1951.
/s/ K. H. EdeN,
Loan Guaranty Officer.

12. Private lenders at about the same time adopted a similar policy with regard to loans to be secured by real property within the flight pattern at McConnell Air Force Base. FHA followed a similar policy with regard to the insuring of loans to be so secured.

13. The properties involved in these suits are located within the conical shaped area, referred to in finding 11, extending 11,000 feet from the end of the runways and expanding 4000 feet in width at the extremity, as follows:

The Jensen property is immediately adjacent to the south line of the airport property and falls almost entirely within this flight pattern.

Next in line in a southerly direction is the Jones property which is entirely within this flight pattern.

The western half of the Wheeler #1 tract is next in line in a southerly direction.

The Wheeler #2 tract is to the south of Wheeler #1.

The Wheeler #3 tract lies outside of the conical shaped area, the easterly line being about one-half mile to the east.

14. McConnell Air Force Base also has two 7000-foot northwest-southeast runways, but these have not been used since 1953 except in emergencies. In 1958 these were closed completely and used for storage and parking of airplanes. While suitable for propeller aircraft used at the Base in the early years, those runways are too short for regular use by B-47’s. There is an understanding between Air Force officials and the officials of tbe city of Wichita that these runways will not be used except in an emergency to avoid flights directly over the center of the city.

15. For the years 1949 through 1953, the following table indicates the total landings and take-offs on the base from all runways:

1949 1950 1951 1952 1953
Airlines_ 19,540 17,834 17,994 18,236 24,336
Military_ 22,422 23,799 74,855 177,196 182,253
Other civil.. 115,977 70,330 62,688 53,652 39,063
Total. 157,939 111, 963 155,537 249,084 245,652

16. The following table indicates monthly totals of landings and take-offs for the years 1951 through March of 1954, except for the months of November and December of 1951, and January through June of 1952:

1951
Itinerant Local
ACR AF Navy Civil AF Navy Civil Total
January.— 1,668 684 131 2,607 982 138 2,475 8,685
February... 1,522 688 135 2,060 1,438 196 2,680 8,719
March_ 1,603 904 166 2,440 1,816 209 2,969 10,107
April — . 1,579 944 108 2,355 2,296 67 3,096 10,445
May_ 1,670 1,249 150 2,869 2,588 86 4,278 12,890
June_ 1,755 1,266 121 2,501 3,156 76 3,271 12,146
July.... 1,992 1,304 179 2,773 4,990 51 3,458 14,747
August_ 1,845 1,590 262 2,440 8,910 0 3,467 18,514
September., 1,767 1,520 169 2,121 8,598 201 2,435 16,811
October_ 1,797 1,348 175 2,099 8,603 83 2,363 16,468
November.
December..
1952
January_
February.
March_
April_
May_
June_
July.... 2,130 4,758 254 2,662 11,381 123 1,433 22,741
August_ 2.284 5,885 336 3,397 11,422 321 1,585 25,230
September. 2.285 5,898 313 3,528 11,478 192 1,564 25,258
October.... 2,441 6,150 322 3,797 14,976 110 1,719 29,515
November. 2,001 4,825 99 2,202 9,750 123 825 19,825
December.. 2,026 5,162 230 2,356 12,653 129 841 23,397
1953
Itinerant Local
ACR AF Navy Oivil AF Navy Civil Total
January_ 2,265 6,613 187 3,805 9,473 77 1,588 23,028
February_ 1,890 4,402 315 3,083 9,583 73 1,087 20,433
March_ 5,103 110 18 1,115 22,859
April.. 1,910 6,184 105 2,205 12,495 40 999 23,938
May_ 1,989 5,976 147 1,856 12,692 28 806 23,394
June. 1,767 6.070 167 2,637 13,068 152 868 24,609
July_ 2,242 5,931 228 2,294 11,628 102 1,089 23,514
August_ 1,108 3,541 130 1,624 6,868 56 901 14,228
September.. .2,088 4,821 170 2,189 8,327 41 622 18,158
October — — 175 9 173 16,276
November.. 2,016 77 5,831 8 320 12,354
December— 1,944 2,933 65 7,072 12 337 14,638
January_ 2,168 3,448 154 2,529 8,877 31 764 17,971
February.. 2,049 3,852 172 2,403 11,825 104 481 20,886
March.— 134 34 458

17. After the termination of civilian use on April 1,1954, the north-south runways of the Base were used exclusively for military aircraft, and the great majority of aircraft thereafter using the runways were B-47’s. The sustained monthly average of take-offs and landings thereafter was about 20,000 per month, and by May of 1958, there was an average of 700 flights cleared daily over the course of the usual 5-day work week. This was an average of a take-off or landing every two minutes on the north-south runways. At this time it was announced that McConnell would become part of the Strategic Air Command.

18. Between September 1950 and December 1955, in the testing for acceptance by the Air Force, as well as the pre-acceptance tests by Boeing, B-47 airplanes made flights in the following numbers from the north-south runway or runways, first at the Municipal Airport, then from the Air Base:

Month Total flights Company Air Force Month Total flights Company Air Force
9-60.. 19 14 5 5-53-184 93 91
10-60-31 16 15 6-63-161 85 76
11-60.. 24 12 12 7-53-185 103 82
12-60.. 61 25 36 8-53.. 151 79 72
1-51-66 35 31 9-53.. 115 82 33
2-51-5 4 1 10-53.. 167 75 82
3-61.. 60 36 14 11-63-90 51 39
4-51-48 29 20 12-53.. 88 56 32
6-61.. 60 40 20 1-54-86 69 27
6-51-50 33 17 2-54-139 95 44
7-61.. 67 36 31 3-54.. 192 108 84
8-61.. 79 60 19 4-54-224 95 129
9-51-24 23 1 5-54.. 256 127 129
10-51-73 52 21 6-54.. 294 152 142
11-51-87 57 30 7-64.. 268 127 141
12-51-01 63 28 8-54.. 319 161 168
1-52.. 101 49 62 9-54.. 284 167 127
2-52.. 167 78 89 10-64-222 110 112
3-52.. 234 112 122 11-54.. 204 109 95
4-52.. 242 145 97 12-54.. 196 106 90
5-52-222 111 111 1-55-143 71 72
6-62.. 216 116 99 2-55-149 64 85
7-52.. 186 84 102 3-65.. 234 98 136
8-52.. 124 78 46 4-55-206 101 105
9-52.. 106 67 49 6-55.. 242 117 125
10-62.. 184 108 76 6-55.. 212 114 98
11-52.. 199 124 75 7-55-227 97 130
12-52-192 88 104 8-55.. 207 95 112
1-53.. 193 99 94 9-55„ 203 98 105
2-53.. 169 104 55 10-55-193 94 99
3-53.. 191 101 90 11-55-177 73 104
4-53-146 75 71 12-55-171 86 85
Note. — The above figures do not include operational flights made by Air Force personnel of the B-47 airplanes at the Air Base.

19. All B-47 flights whenever made used the north-south runways at the field. Due to the direction of the prevailing wind, approximately 70 percent of all take-offs and landings were made to the south. The landings made to the south did not involve passage over the plaintiffs’ land. In taking off to the south, the planes did pass over the plaintiffs’ land.

/20. In May 1956 the first take-off from McConnell Air Force Base by a B-52 jet bomber was made. Thereafter, the B-47 production program was phased out and Boeing has been producing B-52 bombers which have been used at McConnell Air Force Base. The B-52 aircraft is an 8-engine jet and is larger than the B-47. The flights over plaintiffs’ properties by B-52 aircraft, however, have been at generally the same elevations as were the flights by the B-47’s.

21. The number of flights of B-47 airplanes from the McConnell Air Force Base increased progressively until with 90 such planes based there in 1958 there were 700 flights per day.

22. The B-47 is a 6-engine jet bomber with a wingspan of 116 feet, is 109.8 feet in length, stands 28 feet high and weighs about 80,000 pounds bare, and holds 80,000 to 100,000 pounds of fuel.

23. On take-offs, beginning at the north end of the runway, the B-47’s normally leave the ground after 9000 feet or less at a speed of about 150 knots. Take-off distance may be as little as 6600 feet in winter. The 9000-foot take-off distance is normal in hot weather. A considerable number of the take-offs and landings occur during the “touch and go” training, which began in December, 1953, in which several airplanes take off in rapid order and continuously take off and land in a circle to the east of the air base. It is the aim of the pilots on these take-offs and landings to land on the runway some 3000 feet from the end and to take off again at around the 8000-foot mark.

24. The average angle of take-off of the B-47 is about one foot of altitude for each 20 feet traveled.

25. The north line of the Jensen tract is approximately 1500 feet from the south end of the runways. The normal heights of a B-47 taking off above this land vary from about 100 feet to as high as 500 feet, depending on point of take-off, load on airplane, climatic conditions and skill of pilot. The mean altitude on take-off is about 200 feet at the north edge of the tract and 300 feet at the south edge of the tract.

26. The north edge of the Jones Quarter is approximately 3500 feet from the south end of the runways. It is one mile from the north edge of the Jones Quarter to the south edge of the Jones Eighty. The normal heights of a B-47 on take-off over the two Jones tracts vary from about 200 feet on the north end to as high as 1000 feet on the south end, depending on point of take-off, load on airplane, climatic conditions and skill of pilot. The mean altitude on take-off is about 300 feet at the north edge of the Jones Quarter in Section 24, and about 500 feet at the south edge of the Jones Eighty in Section 25.

27. The north edge of Wheeler tract #1 in Section 25 as well as the McClaughry tract is approximately 5000 feet from the south end of the runways. The normal heights of a B-47 on take-off over this tract vary from 300 feet to as high as 1000 feet, depending on point of take-off, load on airplane, climatic conditions and skill of pilot. The mean altitude on take-off is about 400 feet on the north and 500 feet on the south. On Wheeler tract #2 in Section 25, the mean altitude is 500 feet on the north and 600 feet on the south.

28. The Wheeler tract #3 located in Section 31 is about 2 miles south and nearly a mile east of the south end of the runways. About 70 percent of the take-offs and about 30 percent of the landings go directly oyer this property because the traffic pattern curves over it to avoid the city of Derby. The altitude on take-offs over this tract varies from 500 to above 1000 feet, and is generally more than 700 feet above the ground.

29. On landing, the B-47’s are substantially lower over the tracts of land involved herein than they are on taking off, except for Wheeler tract #3 in Section 31. On landing, B-47’s frequently fly down to 100 feet over the north part of the Jones Quarter, and down to 200 feet over the Jones Eighty.

30. The intensity of sound is measured in decibels. A decibel is a unit of measurement of the sound pressure level relative to a constant which is designated as 0.0002 microbar. Measurements of the noise created by B-47 airplanes actually flying over the plaintiffs’ land on take-offs were made by a sound engineer, who testified as to such measurements as well as his estimate of the height of the plane creating the sound. The results of these tests and estimates of height appear below:

Decibels Estimated height of plane (feet)
Jensen farm. ,115 600
116 ' 400
114 500
* Jones, of sec. 24_!_'_ 109 800
105 -800'
Jones, 80 acres in sec. 25_-1_ 112 ‘700
Wheeler tract in sec. 25 (northern part). 102 800
Wheeler tract’ in sec. 25 (southern part). 102 2,000'
111 700
92 1,000
Wheeler" tract in sec. 31.. 96 1,000
84. l800 '

The measurement of 102 decibels and the estimate of the height of planes at 800 feet for the northern part of the Wheeler tract in Section 25 was at a point adjacent to the McClaughry property.

31. On landing, the B-47 is usually lower in altitude than when taking off. However, the noise transmitted to the ground is less than that on taking off. The compressors of the jet motors on landing create a high intense whine set off against a lower pitched background noise, which is seriously annoying and irritating.

3(2. Take-offs and landings by B-47’s are made regularly and frequently at night. In addition to the noises and effects heretofore described, floodlights are used on takeoffs and landings which light wide areas on the Jensen and Jones tracts, and the Wheeler land in Section 25. This is seriously disturbing and annoying to persons who live under it.

33. On numerous occasions since 1953 metal objects have dropped from military planes taking off and landing over the Jones and Jensen tracts involved herein. Most of these metal objects are small aluminum cover plates covering holes in the aircraft, which come off during take-off and landing. On occasion larger objects, such as cameras with film, and rocket take-off boosters, have fallen to the ground. In 1953, a T-33 training plane crashed on the Jones Eighty, and in 1954 a B-47 engine exploded over the same tract, scattering parts over the premises.

34. On take-offs, water injection is often used to provide added power, and black smoke issuing from the engines at such times casts a pall over the area, and sometimes residue of it falls to the ground.

35. There had been no action by public authority as to zoning of lands in the immediate area of the plaintiffs’ lands until 1955.

3,6. McConnell Air Force Base plays an important part in the economy of Wichita. In. 1958 it had a payroll for military and civilian employees of 19 million dollars. In 1958 there were 17,000 people counting dependents in Wichita due solely to the existence of the Air Base. About 1300 officers and men lived on the Base in barracks in that year.

The Boeing plant when in full operation employed 30,000 people. From the fall of 1950 until the end of 1955 the major program at Boeing was the production and delivery of B-47 airplanes.

,37. There has been some drilling for oil in the vicinity of the McConnell Air Base with oil wells located west and north of the Base, and a number of dry holes and gas wells to the east. There is a dry hole located on the Wheeler #3 tract.

38. The testimony was to the effect that the increase in numbers of flights of B-47 jet bombers over a period of about a year from the latter part of 1952 caused a reduction in value of the plaintiffs’ property. This testimony is accepted as true. There was no such reduction in value prior to that time, nor was there prior to that time a direct and immediate interference with the enjoyment and use of plaintiffs’ property as a result of flights from or to McConnell Air Force Base.

39. In the latter part of 1952 the highest and best use of the plaintiffs’ land was agricultural except for the land which fronted on Oliver Street for a depth of about 400 feet which had a potential for commercial development. As to the McClaughry tract its highest and best use was as a small suburban homesite and farm base operation.

40. The fair market value of the various tracts in the latter part of 1952 for their highest and best use was :

Jensen_$ 45,000
Jones_ 68, 000
Burdge, Wheeler, north tract_ 113,250
Burdge, Wheeler, south tract_ 94, 000
McClaughry_ 7,100

41.In the latter part of 1953 the highest and best use of the plaintiffs’ land was the same as it had been a year earlier but the fair market value had changed as to all tracts except the Burdge-Wheeler south tract. This change was caused by the annoyance of frequent flights of B-47 airplanes.

The diminution in fair market value of the plaintiffs’ land between the latter part of 1952 and the latter part of 1953 due to this factor was as follows:

Jensen-$10,000
Jones- 19,000
Burdge, Wheeler, north tract_ 13,000
Burdge, Wheeler, south tract_ 0
McClaughry_ 4,700

Upon tbe foregoing findings of fact, wbicb are made a part of the judgment herein, the court concludes as a matter of law that the plaintiffs in case No. 52-58 are entitled to recover, and it is therefore adjudged and ordered that the plaintiffs recover of and from the United States the sum of ten thousand dollars ($10,000), plus a sum computed at four (4) percent per annum from January 1, 1953, to date of payment, as part of just compensation, subject to the execution of the deed referred to in the opinion.

The court further concludes as a matter of law that the plaintiffs in case No. 53-58 are entitled to recover, and it is therefore adjudged and ordered that the plaintiffs recover of and from the United States the sum of nineteen thousand dollars ($19,000), plus a sum computed at four (4) percent per annum from January 1, 1953, to date of payment, as part of just compensation, subject to the execution of the deed referred to in the opinion.

The court further concludes as a matter of law that the plaintiffs in case No. 58-58 are entitled to recover, and it is therefore adjudged and ordered that the plaintiffs recover of and from the United States the sum of thirteen thousand dollars ($13,000), plus a sum computed at four (4) percent per annum from J anuary 1, 1953, to date of payment, as part of just compensation, subject to the execution of the deed referred to in the opinion.

The court further concludes as a matter of law that the plaintiffs in case No. 66-58 are entitled to recover, and it is therefore adjudged and ordered that the plaintiffs recover of and from the United States the sum of four thousand seven hundred dollars ($4,700), plus a sum computed at four (4) percent per annum from J anuary 1,1953, to date of payment, as part of just compensation, subject to the execution of the deed referred to in the opinion. 
      
       We shall refer to the tract in Case No. 52-58 as the Jensen land; to the tracts in Case No. 53-58 as the Jones land; to those in Case No. 58-58 as theWheeler tracts #s 1, 2, and 3, and to that in Case No. 66-58 as the McClaughry land.
     
      
       Einding 15 indicates the total landings and take-offs (military, airlines, and other civil flights — all types of planes) from all runways at the field for the years 1949-1953, and finding 16 gives the monthly totals for most months. In 1949 there were a total of 157,939 flights (of which 22,422 were military). In 1950 the total was 111,963 (of which 23,799 were military). The number in 1951 was 155,537 (74,855 military) ; in 1952 it was 249,084 (177,196 military) ; and in 1953 it was 245,652 (182,253 military).
     
      
       In the four months from September 1950 through December 1950, a total of 135 B-47' flights were made at the field by Boeing or the Air Force in pre-acceptance or acceptance tests. In 1951 there were 700 such testing flights. In 1952 the number increased to over 2,100 and in 1953 the level was comparably high.
     
      
       The Jensen tract immediately adjoins the southern boundary of the Base and is about 1,500 feet from the south end of the extended runways; next to the south is the northern part of the Jones property; the small McClaughry tract abuts the southern edge of the north portion of the Jones property; to the south come the other part of the Jones land and the firs't two Wheeler tracts; Wheeler tract #3 is separate land somewhat to the' southeast.
     
      
       These are landings to the north, which are only ,30% of all landings. Of the take-offs and landing involving the north-south runways, 70% are to the south. ‘
     
      
      
         Highland Park, Inc. v. United States, 142 Ct. Cl. 269, 270-271; Adaman Mutual Water Co. v. United States, 143 Ct. Cl. 921, 923-925; Dick v. United States, 144 Ct. Cl. 424, 426-427; Matson v. United States, 145 Ct. Cl. 225, 226-227; Wright v. United States, 150 Ct. Cl. 386, 389, 279 F. 2d 517, 519; Davis v. United States, 155 Ct. Cl. 418, 420-421, 295 F. 2d 931, 932-933; Bacon v. United States, 155 Ct. Cl. 441, 443-444, 295 F. 2d 936, 937-8; Klein v. United States, 152 Ct. Cl. 221, cert. denied, 366 U.S. 936; Wilson v. United States, 151 Ct. Cl. 271, 276-278. See also Griggs v. County of Allegheny, 369 U.S. 84.
     
      
       See Highland Park, Inc. v. United States, 142 Ct. Cl. 269, 270; Adaman Mutual Water Co. v. United States, 143 Ct. Cl. 921, 923; Bacon v. United States, 155 Ct. Cl. 441, 442-443, 295 F. 2d 936-937.
     
      
       There were 700 test flights In 1951. Since 70% of the take-offs and landings from the Base were made to the south, some 490 of the take-offs probably passed over plaintiffs’ property in the course of that year. Only 30% of the landings (those to the north) involved plaintiffs’ lands; these amounted to some 210 in the year. The total of these take-offs and landings adds up to an average of some two circuits a day. These figures should be compared with the later monthly average (after April 1954) of 20,000 take-offs and landings by B — 47’s, and the daily average (by May 1958) of 700 flights.
     
      
       It Is significant that there was no residential development in the general area south of the airport for quite some distance.
     
      
       Findings 40 and 41 merge Wheeler tracts #1 and 2 and call them “Burdge, Wheeler, north tract.” Wheeler tract #3 is denominated the “Burdge, Wheeler, south tract.”
     
      
       In their briefs plaintiffs ash for a special detailed division of the judgment in No. 53-38. Since the petition does not pray for judgment in that fashion, we leave the exact form of the payments to the parties.
      In No. 66-58, the petition incorrectly denominates Mrs. McClaughry as “Ethel”. Her correct name is “Edith” and the petition is amended accordingly.
     
      
       We are directing that the deeds convey an easement of flight for airplanes of any kind because of the particular facts and circumstances of these particular cases.
     
      
       These altitudes take account of the level of flights over plaintiff’s properties in the course of landings as well as in take-offs. See finding 29.
     
      
       These planes were B-52’s.
     