
    376 F.2d 895
    COE A. BOARDMAN AND MARTHA E., HIS WIFE, AND FRANK J. SMITH AND THERESE E., HIS WIFE v. THE UNITED STATES
    [No. 346-63.
    Decided May 12, 1967.
    Plaintiffs’ motion for rehearing denied October 13, 1967]
    
      
      Stephen A. Cozen, for plaintiff. Francis W. SulUvan, attorney of record. Sydney C. Orlofshy, of counsel.
    
      Arthur C. Latina, with whom was Assistant Attorney General Edwin L. Weisl, Jr., for defendant.
    Before Cower, Chief Judge, Laramore, Dukfee, Davis, Collins, Skelton and Nichols, Judges.
    
   PER Curiam:

This case was referred to Trial Commissioner C. Murray Bernhardt with directions to make findings of fact and recommendation for conclusions of law. The commissioner has done so in a report and opinion filed on July 18,1966. Exceptions to the commissioner’s findings and recommendation for conclusion of law were filed by plaintiffs and the case was submitted to the court on the briefs of the parties and oral argument of counsel. Since the court is in agreement with the opinion, findings and recommendation of the commissioner, with modifications, it hereby adopts the same, as modified, as the basis for its judgment in this case, as hereinafter set forth. Plaintiffs are, therefore, not entitled to recover and their petition is dismissed.

Commissioner Bernhardt’s opinion, as modified by the court, is as follows:

Ever since a measure of governmental liability was found by the Supreme Court in the landmark case of United States v. Causby, 328 U.S. 256 (1946), for the taking of private property rights by regular aircraft overflights, — a wrong theretofore esteemed by many to be a noncompensable trespass,- — -lower courts coping with the spate of suits inspired by the Gausby example have encountered recurring difficulty in fixing the accrual date of each cause of action. That is the problem here, and the petition stumbles on our six-year statute of limitations. 28 U.S.C. § 2501. The plaintiffs’ theory of placing the taking date to coincide with a nearby airplane crash in 1961 which dramatized, but did not create, the risk to residential developments neighboring the airport, is not orthodox; nor does it relieve from the bar of the statute the petition filed here in 1963 to redress flight nuisances commencing in 1955 and fluctuating only mildly in quantity and quality in succeeding years. In effect, the plaintiffs are necessarily saying that in themselves the overflights from 1955 onward did not deprive their property of residential value, but only when in combination with the risk factor which (according to them) did not emerge until accentuated by the 1961 crash, even though equivalent risks had been latent for as long as planes had flown the local skies.

In June 1955 the plaintiffs, both of them experienced real estate developers and builders, bought 122.32 acres of forested land fringing the northern boundary of the Willow Grove Naval Air Station at Willow Grove, Pennsylvania. The air station, opened in 1943, became in postwar years, and still is, a flight training center for reservists of the Navy, Marines, and Air Force, as well as the Air National Guard. Until July 1955 only propeller-driven aircraft, mostly single-engine fighter types, were assigned to the station, with the exception of a period starting in 1950 when a few twin-engine jet fighters capable of negotiating the relatively short runways were temporarily in operation. A 4,000-foot extension to the north end of the main northwest-southeast runway was built and became operational in July 1955 to permit jet fighter operations, and immediately a number of single-engine F-9 and T-33 jet fighter planes were transferred to the station and an active program was launched to convert reserve pilots of conventional planes into jet pilots. Then and later most of the flight activity at the base involved jet fighter aircraft, primarily during the warmer months on weekends (hence the soubriquet, “weekend warriors”) and during annual fortnightly training periods, all of them operating from the extended northwest-southeast runway. Because the plaintiffs’ property lay entirely within the approach zone at the northern end of the extended runway, all jet flights taking off to the north or landing to the south on that runway (constituting half or more of all flights due to the prevailing breezes) funneled over the plaintiffs’ property at aboveground altitudes ranging from 200 feet to 350-500 feet in taking off across the hither and yonder boundaries, respectively, and from 220 to 303 feet on GCA landings (Ground Control Approach, used under nonvisual weather conditions). These altitudes varied within 50 feet depending on the particular aircraft, type of mission, atmospheric conditions, pilot technique, etc. Visual landings (VFR; 90 percent of total landings) were at higher than GCA altitudes. Propeller-type aircraft using the northwest-southeast runway both before and after its lengthening landed under visual conditions, and took off, at higher altitudes over the plaintiffs’ property than their jet counterparts. Commencing in September 1957 the F-9 jets were gradually replaced with F-l’s which, because of their superior power and flight characteristics, departed and arrived visually over the property in question at substantially higher levels than other jet aircraft in use there, and produced more noise, but not enough to surcharge the existing easement of flight insofar as the plaintiffs demonstrated. The volume and varieties of flights and aircraft prior to December 1957 (the date six years prior to suit) were not substantially different from those thereafter from the standpoint of increasing the interference with use of plaintiffs’ land.- At no time prior to at least 1963 were there employed at the station any supersonic jets or ones equipped with afterburners.

The defendant correctly and understandably concedes that these flight activities invaded the plaintiffs’ property rights in the “superadjacent airspace”, for any residential potential in the land was seriously impaired by the nerve-jangling noise, vibration, and sight of the low-flying planes. Witness graphic proof of this in the written complaint made in January 1957 by the operator of a children’s summer day' camp to the commandant of the air station. In July and August of each year from 1956 through 1961 the Silver Arrow Day Camp was conducted for young children on a 21.55-acre piece of the plaintiffs’ original tract which they had sold in May 1956. The small tract, containing an old mansion and miscellaneous farm structures, abutted the northern boundary of the base, and was directly in line with the offending northwest-southeast runway. The camp operator’s complaint, based upon flights in the summer of 1956, described the location of the camp in direct line with the runway, expressed fear for the safety of the children from planes flying with a “deafening roar” at “extremely low altitudes * * * directly over the camp.”, referred to the children as having been “frightened to tears” from the perilous proximity of the passing planes, and requested measures to reduce the hazard. The camp operated only during weekdays, when the flight activities ebbed sharply from the heightened weekend traffic, so we may surmise how much more distressing the situation would have been on weekends to permanent residents beneath, had there been any. The complaint was investigated by the air station, but no corrective action consistent with discharge of the Navy mission was deemed possible. If early conditions were so objectionable as to evoke such a complaint, knowledge of them must be imputed to the plaintiffs who could then or at any time prior to the lapse of six years in July 1961 or thereabouts have instituted the present action, rather than delaying the filing of this now time-barred suit until December 1963, as they did.

The plaintiffs purchased the property for the purpose of subdividing and building homes for sale. In mid-1955 they approached both the Federal Housing Administration and the local planning commission in order to obtain the benefits of the FHA loan insurance program in the one case, and to receive tentative approval of a preliminary development plan in the other. In explanation of its refusal the FHA remarked the proximity of the property to the overhead air traffic, and cited its 1954 policy which prohibited loan insurance coverage to properties adjacent to airports. This, of course, would not preclude private financing, if available, but FHA coverage is highly desirable in the marketing of new homes. It may be true as the plaintiffs have averred that they -were unaware of the extent and nature of the overflights until 1960, or that they did not know in 1955 that the runway channeling planes over their property had been extended so as to aggravate the problem, but the flight facts were readily apparent to anyone who took the trouble to see or to inquire, and the plaintiffs’ professed ignorance of them was their own fault, as was their failure to learn prior to purchasing the property the readily ascertainable facts concerning expansion of the air station’s program.

The preliminary development plan which the plaintiffs had presented informally to the local planning commission in 1955 was returned for certain corrections. In 1960 the plaintiffs revived their interest hi developing the property and submitted revised development plans to the planning commission, altering them again in early 1961 to meet zoning requirements, only to have them rejected because of the risk entailed in locating a high density residential development in an approach zone of a major runway. The plaintiffs attribute the adverse action of the planning commission to the August 27, 1961 crash of an aircraft into a large store hard by the station, which they urge brought home the hazards of living close to an airport. This, the plaintiffs contend, coupled with seven years of persistent jet flight operations, accrued their cause of action by a process of culmination, for it emphasized and advertised the risk feature with the result of making their property unmarketable for its intended use. This oversimplifies the actuality. The plaintiffs voluntarily elected to postpone reapplying to the planning commission until 1960 for reasons best known to themselves. Had they pursued their initial application in 1955 there is no reason to believe that the planning commission would have ignored the well-known facts of the disadvantageous property location in relation to flight activity, or would have been any more willing to sanction a high density subdivision in 1955 than in 1961. The plaintiffs overemphasize the effect of the 1961 crash on the commission’s action, whereas the reason given by the commission for refusing approval in 1961 would have been equally applicable to 1955, and no doubt as conclusive. The 1961 decision of the commission was not “tacit acknowledgment” that until the crash the public would purchase homes in the development. Since then the plaintiffs have abandoned their plans and the property remains on their hands, useless and unused.

The contention that the cause of action accrued with the crash of August 1961 because it established a risk factor which was theretofore unappreciated is, moreover, vitiated by the record that in the 17 years preceding that incident there had been 17 airplane crashes on or in the vicinity of the same air station, not to mention four additional crashes in the two following years. With this busy fatality record it is idle for the plaintiffs to single out one of many such accidents as the sudden cause of public recognition that the property in suit was unsuitable for homesites from a risk standpoint alone, independent of other harassing features of living in an approach zone which the plaintiffs have purposely underplayed to avoid the limitation defense. If it could not be judicially noticed that hazards would attend living in a development on the plaintiffs’ land bordering the airport, the prevalence of accidents in the area over the years would remove any doubts. Furthermore, whereas the degree of interference with a livable environment at the end of a runway might well vary with the type of aircraft, their altitude, number, noise, and general nuisance, there is no reason to believe that the risk inherent in overhead flights varies or is governed by these criteria. The crash of a tiny pleasure plane into a home might be as disastrous to its occupants and as likely but unpredictable in its occurrence as that of a more sophisticated and deadly military aircraft.

It is not seen how the precedents on which the plaintiffs principally rely aid them. Jensen v. United States, 158 Ct. Cl. 333, 305 F. 2d 444 (1962); United States v. 3276.21 Acres of Land, 222 F. Supp. 887 (1963); Bacon v. United States, 155 Ct. Cl. 441, 295 F. 2d 936 (1961). All three support the now common view that where the nature and degree of the disturbance to private property rights in approach zones below the line of flight is substantially worsened and rendered intolerable by the use of aircraft which, because of their size, power, noise, altitude and flight characteristics, or because of structural changes in the airport layout, impose a greater degree of interference in the enjoyment of property over which they pass en route to or from their operating runways than the conditions which previously inhered, a significant depreciation in the market value of the property as a direct result of the overflights is not only prerequisite to recovery of just compensation but also marks the date of taking from which applicable statutes of limitation commence to run and valuations for damage purposes are to be measured. This may or may not coincide with the advent of the equipment creating the surcharge, according to the time of total impact in numbers and types of aircraft, frequency and altitude of flights, noise, danger, and other incidents which impair the normal enjoyment of property and hence its market value. Sisk of crashes is but one of many elements to consider and, standing alone, has not yet been held to trigger a taking of property in the Constitutional sense or to amount to more than a trespass. It is true that in the Bacon case, supra, a fortuitous crash near the home of one plaintiff happened to coincide chronologically with the culminating effect of a new breed of jet aircraft (the F-84f) which, because of their number, flight frequency, and significantly different operating characteristics were more disruptive to dwellers in the approach zone below their repeated passage than the types of aircraft which they displaced or augmented, and thus effected not only a taking but also caused the withdrawal of previously available FHA, VA, and conventional financing forms so indispensable to marketability.

We cannot say with any confidence at what precise point after the first arrival of jets at Willow Grove in July 1955 they reached the level of substantial interference, but it is clear that it was reached at least by the summer of 1956 when conditions prompted the convincing complaint by the proprietor of the Silver Arrow Day Camp, referred to above. There is minor conflict in the testimony on the score of low and frequent flights, but it is inconceivable that those witnesses of the plaintiffs who were on the property and saw few or no aircraft skirting the treetops during periods of prime activity could have been so oblivious of conditions which affected the day camp so profoundly. The belying flight statistics, sketchy as they are in breakdown, raise the question of the credibility of those who were there and profess to have seen or heard nothing untoward.

The differences between the present case and those cited by the plaintiffs are obvious. A long record of aircraft accidents antedating the 1961 crash by 17 years established, unlike the Bacon case, that a serious potential risk not only existed but had materialized and was known throughout the Willow Grove area, so that the 1961 crash, no matter how well-publicized it may have been, was only anticlimactic to the clear warnings which past events had supplied so abundantly. Further, the withdrawal of FHA and VA loan guarantee protection in the Bacon case was contemporaneous with the crash and the actionable peak of the overflight burden, whereas in the present case the FHA had precluded plaintiffs from its program in 1955, the overflights became onerous no later than the summer of 1956, and the suit was filed seven years later. The refusal of the planning commission to approve the plaintiffs’ development plan in 1961, discussed earlier, may evidence the cause of plaintiffs’ loss, but does not mark its inception. It could not be argued that because the planning commission rejected the plaintiffs’ proposal in 1961 that the plaintiffs were forgivably blind to the reasons in existence for the preceding six years, or could not have taken appropriate action more seasonably. The planning commission did not withhold its rejection waiting for the overflights to become intolerable or for a plane to crash; it was merely not called upon to pass judgment until the plaintiffs applied. A clear line must be drawn between cause and effect.

The record contains voluminous data on valuation for the determination of damages, but it is not reflected herein because the plaintiffs have failed to establish the existence of liability and the petition should be dismissed.

FINDINGS ob Fact

1. This action was filed on December 5, 1963, to recover $300,000, representing the claimed depreciation in market value of a parcel of land located in Horsham Township, Montgomery County, Pennsylvania, allegedly caused by low and frequent flights of military jet aircraft while operating from the Willow Grove Naval Air Station at Willow Grove, Pennsylvania. The property, consisting of 100.77 acres of vacant land, is located in the approach zone to the northwest end of the northwest-southeast runway of the air station at distances from the end of the runway ranging from approximately 2,500 feet to 6,000 feet. The property is bounded on the north by Park Eoad and partially on the south by Keith Valley Eoad, which is the northern boundary of the air station.

2. The Willow Grove Naval Air Station was established as a flying field during World War II and has been in continuous operation as such since then. Originally, it had an east-west runway and a northwest-southeast runway. By July 1955 a 4,000-foot extension to the northwest end of the northwest-southeast runway became operational for jet aircraft. It was completed in October 1955.

3. The air station is used as a training field for pilots in the Eeserves of the Navy, Marines, and Air Force, and for the Air National Guard. The 512th Wing of the Air Force Eeserves was assigned to the station in August 1958. The 111th Group of the Air National Guard commenced to operate from the station in the spring of 1963.

4. With one exception, the aircraft assigned to the air station prior to July 1955 were single-engine and multi-engine propeller-driven types. The exception was that for a period starting in 1950 a Phantom 1 twin-engine fighter jet operated there, and was capable of taking off and landing on the runway prior to its extension in 1955. Some propeller-driven aircraft are still operating from the air station.

5. Prior to the 4,000-foot extension to the northwest-southeast runway in 1955, all aircraft approaching the air station for landing on the northwest end of the runway under the Ground Control Approach system (GCA) flew over the plaintiffs’ property at altitudes above ground level ranging from 462 feet to 479 feet, with a possible lower variance of 50 feet, depending on atmospheric conditions, type of aircraft, and pilot performance. Following the extension of the runway in 1955 the height of aircraft over plaintiffs’ property in the course of GCA landings varied from 220 to 303 feet above ground level, still with a 50-foot margin of error. These calculations take into consideration the sloping elevation of plaintiffs’ property from its north to south boundaries. Approximately 10 percent of all landings were GCA; the rest were visual (VFB,).

6. None of the jet aircraft which operated from the air station to 1963 were supersonic or were equipped with afterburners. The first jet aircraft to operate there following the extension of the northwest-southeast runway in July 1955 were F-9 and T-33 single-engine jets. The F-9’s remained there until June 1958, being gradually replaced with F-l’s starting in September 1957. The T-33’s are still operating.

7. On takeoffs to the northwest the F-9 would enter the southern boundary of plaintiffs’ property at approximately 200 feet above ground level and would exit the northern boundary at 350 to 500 feet above ground level. The F-l, which had a more powerful engine than the F-9 and was somewhat more noisy, had superior flight characteristics and would clear the plaintiffs’ property at higher elevations than the F-9. In takeoff characteristics the T-33 was somewhere midway in performance between the F-l and the F-9. The aircraft gained altitude more rapidly in cold weather than in warm weather. The height statistics would vary within 50 feet of the given altitudes, depending on the type of mission and the experience of the pilot. The aircraft would not commence their turns from the center line of the runway extended until they were 1,000 feet above ground level, which placed them beyond the northern boundary of plaintiff’s property at that time. In GCA landings all three of these jet aircraft would follow the prescribed glide angle, but on visual landings the F-9 would cross the plaintiffs’ property at a lower elevation than the F-l. In 1957 the traffic pattern for visual landings was changed by shifting the downwind leg of the circular visual pattern from the east side of the runway to the west side in order to avoid overflights over certain residential areas, churches and schools.

8.The number of jet aircraft assigned to the air station from 1955 through 1968 varied from two in June 1955 to a high of 48 in March 1958. At selected dates they varied in number and types as follows:

The jet inventory commenced to decrease in December 1959, and thereafter until the end of 1963 reached a high of 30 aircraft (June 1963) and a low of 17 (June, September and December 1961). The reduction in jet inventory was due to the training of Keserve pilots in propeller-driven aircraft for antisubmarine warfare, rather than in jets. The propeller-driven aircraft used for antisubmarine training crossed the plaintiffs’ property at higher altitudes than the jets while taking off to the northwest.

9. Jet operations commenced at the air station in 1955 with nine jet fighter squadrons of selected Navy and Marine Beserves (so-called “weekend warriors” because their flights were concentrated on weekends). Each squadron had 24 pilots who, from July 1955 to 1957, underwent extensive transitional training from propeller-driven aircraft to jet aircraft. Six officers were assigned to train them. In training the officers would “chase” the trainees in a separate aircraft, exercising control by voice communication over the radio. After qualifying for flying jet aircraft the trainees would fly alone, mostly on weekends.

10. From July 1955, when the extended northwest-southeast runway became operational, until the end of 1955, a total of 31,315 takeoffs and landings were executed at the air station. Comparable statistics for succeeding years are as follows:

1956 — 44,923 (excluding one month, when the runway was being resurfaced and was not used)
1957 — 21,777 (nine months only)
1958 — 18,857 (six months only)
1959 — 48,737
1960 — 46,762
1961 — 42,256
1962 — 49,954
1963 — 52,116

Most of the foregoing takeoffs and landings were by jet aircraft, and about half of the takeoffs, because the prevailing winds are from the northwest, were to the northwest and over plaintiffs’ property. The plaintiffs contend that, until 1960, they did not have actual knowledge of the habitual flights of aircraft over their property. At that time they offered to sell air rights over the property to the Navy, without results.

11. The 100.77 acres involved in this action are part of the plaintiffs’ original purchase on June 13, 1955, of 122.32 acres. They acquired it for the purpose of subdividing and building homes for sale. From November 1956 to August 1957 the plaintiffs removed large trees from the property in preparation to develop it. In the meantime, on May 8, 1956, they sold 21.55 acres of the property fronting on Keith Valley Road (the southern boundary) to a Mr. Shore. This 21.55 acres, which contained an old mansion and some farm buildings, was converted into a children’s summer day camp, known as the Silver Arrow Day Camp, which operated from Monday through Friday in July and August of each year.

12. In the summer of 1956 the Silver Arrow Day Camp was operated on the 21.55 acres of the property under the counsellorship of one Leonard Barmat, who operated the same camp under a lease during the succeeding summers of 1957 to 1961. Mr. Barmat customarily spent each weekend at the camp to prepare activities for the ensuing week. Appearing as a witness for the defendant, Mr. Barmat testified that during the weekdays there were at least 15 flights by jet aircraft each day at low altitudes over the camp property, and that jet activity on weekends was extremely heavy. By the following letter of January 17, 1957, to the commandant of the air station, Mr. Barmat complained of the frequency and low altitudes of the jet flights over the camp property and requested that the operations be shifted to another runway because of the risk and disturbance:

May I call your attention to the fact that I am the operator of a children’s day camp, which houses 150 children, operates during the months of July and August, and is situated less than a half-mile from the Willow Grove Naval Air Station. The camp is named Silver Arrow Day Camp at Keith Valley Road between County Line and Davis Grove Road. A most dangerous situation exists in that one of your runways for jet plane takeoffs and landings is directly in line with our camp.
We are very much concerned as to the safety of our children with your aircraft flying at extremely low altitudes and directly over the camp.
We do not have to elaborate on the deafening roar of the jet planes when they are only a hundred feet overhead. Neither do we have to stress the extreme danger involved with the planes taking off and landing directly above our children. We are greatly alarmed about this precarious situation. Last summer, many of our children were frightened to tears because of the closeness of the jet aircraft.
We hope, that in bringing this perilous condition to your attention, you can take the necessary precautionary safety .measures during the two month period when our camp is in session, to safeguard the health of our children.. We do not want to greatly curtail the aerial activity at the Naval Air Station, but feel that one important safety measure would be for the flights to originate and end from another runway — one not directly in the path of the children. There are probably many other safety measures which you can enforce to further insure our camp’s safety.
We are only interested in these extra-precautionary steps being enforced during the hours when our children are at camp — from 9 a.m. to 4 p.m., Mondays through Fridays, during July and August only. Our children return home daily at 4 p.m. and are not at camp on Saturdays and Sundays, nor during the other 10 months of the year.
We have a tremendous responsibility and obligation to the parents for the complete safety of their children while they are at camp. We hope you can clearly understand our position, and thereby take the proper measures to rectify this hazardous predicament.
I would appreciate hearing from you relative to this matter.

13. The following reply was addressed to Mr. Barmat by the commandant of the air station on February 21,1957:

This is to acknowledge receipt of your letter of 17 January regarding annoyance by aircraft from Naval Air Station, Willow Grove.
I am sure you realize that due to the proximity of your camp to this station a certain amount of disturbance from aircraft operation is inevitable. At the outset, I wish to assure that it is our sincere desire to conduct flight operations in such a maimer as to minimize annoyance by our aircraft to the local residents, but, at the same time, conduct such operations to insure maximum safety of flight.
Considering that reserve aviators must maintain their combat readiness in order to fulfill the national defense mission assigned to the Naval Air Eeserve, and the fact that propeller type aircraft could no longer be effectively used for this purpose, a transition to jet aircraft was commenced at this activity in June of 1955. Accordingly, a single runway, running from northwest to southeast was lengthened to approximately eight thousand (8,000) feet and it is the sole runway which can adequately handle jet aircraft. Since the Silver Arrow Day Camp is located approximately three thousand (3,000) feet from the northwest extremity of the runway, it is conceivable that under certain wind and atmospheric conditions, it is in the line of flight of aircraft landing on runway 15 or taking off from runway 38. In either case, the area is not congested and it is considered that an emergency could be negotiated without endangering the children.
It is my policy to treat each complaint individually in the hope that prompt adjustment will alleviate the problem. However, any alteration to operational procedure is made with safety as the primary consideration, and in a case such as this, a tum-away in the initial phase of a take off run would not only endanger the pilot but the community as well.
Flying at this activity is largely done by Naval Ee-serve aviators who, due to their civilian occupations must maintain their readiness on week-ends, plus one two-week active duty cruise each year. These aviators usually sacrifice their summer vacations for this purpose; therefore, the months of July and August are necessarily the most active. However, since the transition from propellor to jet type aircraft was largely completed in the summer of 1956, which included many take offs and landings, it is anticipated that the annoyance of low flying jet aircraft will be appreciably reduced this summer.
Please be assured that the Navy is acutely aware of the disturbance caused by military aircraft and is taking every step possible, consistent with the requirements of national defense, to alleviate this disturbance. It is my sincere hope that you, as well as the many others throughout the country, who are being caused discomfort, will find it is possible to bear with us in our efforts toward this end.

14. On August 27,1961, an F-l jet, while approaching for a landing at the southeast end of the air station, crashed into a building known as the Bargain City Store located approximately 2y2 miles southeast of the plaintiffs’ property, causing extensive property damage and personal injuries. In the 17 years prior to the Bargain City Store crash, there had been 17 airplane crashes in, and in the area of, the Willow Grove Naval Air Station. In the two years following the Bargain City Store crash there were four other airplane crashes in, and in the area of, the air station, including one in which the airplane crashed on Keith Valley Hoad, destroying a building occupied by the Green Valley Day Camp and three automobiles, killing seven persons and injuring 22 others.

15. At the time they purchased the property in suit in June 1955, the plaintiffs had prepared a preliminary plan for its development dated April 18, 1955. In the summer of 1955 coplaintiff Frank Smith informally presented his preliminary development plan to the office of the Federal Housing Administration in Philadelphia, Pennsylvania, and requested a subdivision analysis in order to ascertain whether or not the FHA would insure loans for houses on the property. The FHA appointed an underwriting committee to inspect the property, which concluded and advised Mr. Smith that the FHA would not insure loans because of the location of the property in the approach zone of the northwest-southeast runway at the air station. This was in accordance with the policy adopted by the FHA in or about 1954.

16. In the summer of 1955 the plaintiffs also submitted their preliminary development plan of April 18, 1955, to the Planning Commission of Horsham Township, for a determination as to whether or not it met the zoning requirements. At that time the Planning Commission felt that there were technical errors in the layout of the streets, as well as a drainage problem that had not been properly met, and directed plaintiffs to rework the plan. Thereafter the plaintiffs’ plans to develop the property remained inactive for a few years until 1960, when they sold a lot on the property to one Donald Carson and revived their interest in developing the entire property, engaging an engineer and representatives to rework the plans and resubmit them to the local authorities. The development plan was revised in August 1960, and again in January and February 1961, in order to meet certain zoning changes made subsequent to 1956, requiring larger areas and more frontage feet for lots in the proposed subdivision. The revised plan appeared to meet the Township zoning requirements, but in 1961 the Planning Commission advised the county supervisors in writing that it was not in favor of developing the property for residential use of high density because of the air traffic over it, due to the risk involved in its location in the approach zone of the most active runway at the air station.

17. By reason of the foregoing, since 1961 the plaintiffs have abandoned their plans to develop the property for residential purposes. It is concluded that (1) the use and enjoyment of the property for residential purposes was seriously interfered with by the single engine jet aircraft which began to operate regularly at the air station in July 1955; (2) there was no greater interference with the use and enjoyment of the property in August 1961 (the alleged date of taking) than at times preceding December 5, 1957 (six years prior to the filing of the petition); and (3) the risk of airplane crashes in the vicinity of the air station which existed in August 1961 was no different in nature or degree than had existed long prior to December 5,1957.

18. The record contains evidence as to valuation of the plaintiffs’ property at relevant times, and the parties have requested findings on valuation based on the record. However, this report will omit such findings because the issue is determinable on liability.

Conclusion of Law

Upon the foregoing findings of fact and opinion, which are adopted by the court and made a part of the judgment herein, the court concludes as a matter of law that plaintiffs are not entitled to recover and the petition is dismissed. 
      
      Tlie opinion, findings of fact, and recommended conclusion of law are submitted under the order of reference and Rule '57 (a).
     
      
      A 3-degree angle. GCA landings were made under adverse weather conditions.
     
      
       Tie sale was later canceled and the deposit refunded.
     