The contributory negligence of La Com is therefore complete. Substantial authority for these views is found in Strother v. Pacific Gas Elec. Co., 94 Cal.App.2d 525 [ 211 P.2d 624]; Capitol Airways v. Indianapolis Power Light Co., 215 Ind. 462 [ 18 N.E.2d 776].) The Strother case is precisely in point and though we are well aware that there is a difference of opinion as to the binding effect which the opinion and judgment of one District Court of Appeal may have on the court of another district, where, as here, the case is so closely in point, both as to the facts and as to the questions of law involved, we have no hesitancy in resting our judgment on the opinion in the Strother case which we feel is a correct statement of the law.
Being trespassers, the owner of the land owed plaintiffs no duty to warn them of the hazard of the wires. ( Leslie v. City of Monterey, 139 Cal.App. 715 [ 34 P.2d 837]; Rochester G. E. Corp. v. Dunlop, 148 Misc. 849 [266 N.Y.S. 469]; Capitol Airways, Inc. v. Indianapolis Power Light Co., 215 Ind. 462 [ 18 N.E.2d 776]; Langazo v. San Joaquin L. P. Corp., 32 Cal.App.2d 678, 689 [ 90 P.2d 825].) In the case last cited this court said:
244 Ind., at 578, 193 N.E.2d, at 239. In holding that landowners did have a protected property interest in the airspace above their land, the court first discussed an Indiana statute, Acts 1927, c. 43, § 3, Burns Ind. Stat. Ann. § 14-103 (1950 Repl.) ("The ownership of the space above the lands and waters of this state is declared to be vested in the several owners of the surface beneath, . . ."), and a prior interpretation of state law, Capitol Airways, Inc. v. Indianapolis P. L. Co., 215 Ind. 462, 466, 18 N.E.2d 776, 778 (1939) (airport operator has no right to damages from public utility whose power line obstructs flight into and out of airport). In addition, the Indiana Supreme Court cited and discussed two cases of this Court holding low altitude overflights to constitute a taking of an air easement requiring just compensation under the United States Constitution.
]" The State of Indiana has the identical statutory provisions above mentioned and the same were construed by the Supreme Court of Indiana in the case of Capitol Airways, Inc. v. Indianapolis Power Light Company, 215 Ind. 462, 18 N.E.2d 776, 778. In the Capitol Airways case, supra, the airport operator brought a suit against the defendant public utility to recover damages resulting from the destruction of the usefulness of the airport.
It is for this depreciation in value, caused by the removal of the trees, resulting in frequent flights over the property at 45 feet above the ground, that plaintiffs are entitled to recover. United States v. Causby, 328 U.S. 256, 66 S.Ct. 1062, 90 L.Ed. 1206; Causby v. United States, 60 F. Supp. 751, 104 Ct.Cl. 342; Id., 75 F. Supp. 262; 109 Ct.Cl. 768; Highland Park, Inc., v. United States, Ct.Cl., 161 F. Supp. 597; United States v. 4.43 Acres of Land, D.C., 137 F. Supp. 567; United States v. 29.40 Acres of Land, D.C., 131 F. Supp. 84; Reaver v. Martin Theaters of Florida, Inc., Fla., 52 So.2d 682, 25 A.L.R.2d 1451; Cason v. Florida Power Co., 74 Fla. 1, 76 So. 535, L.R.A. 1918A, 1034; Smith v. New England Aircraft Co., 270 Mass. 511, 528, 170 N.E. 385, 69 A.L.R. 300; Capitol Airways v. Indianapolis Power Light Co., 215 Ind. 462, 18 N.E.2d 776. The taking occurred in 1950, and, hence, is not barred by the statute of limitations, nor by the Assignment of Claims Act (31 U.S.C.A. § 203), since plaintiffs owned the property at the time.
Thus, cases decided at the infancy of air age would allow a landowner adjacent to an airport to "erect flagpoles, factory chimneys, or tall buildings across the whole of its land . . . notwithstanding it might have entirely prevented the landing of airplanes. . . ." Capitol Airways, Inc. v. Indianapolis Power Light Co., 215 Ind. 462, 18 N.E.2d 776, 778 (1939). See also Strother v. Pacific Gas Electric Co., 94 Cal.App.2d 525, 211 P.2d 624, 632 (1949).
Decisions elsewhere have upheld the right of the landowner "to erect flagpoles, factory chimneys, or tall buildings . . . notwithstanding it might have entirely prevented the landing of airplanes." Capitol Airways, Inc. v. Indianapolis Power Light Co. 215 Ind. 462, 466 (power line). Jackson Municipal Airport Authy. v. Evans, 191 So.2d 126, 128-130 (Miss.)
Also, the property right of a landowner in the air space above his property was recognized in numerous decisions of this court and the federal courts. In Capitol Airways, Inc. v. Indianapolis P. L. Co. (1938), 215 Ind. 462, 466, 18 N.E.2d 776, 778, suit had been brought by an airport operator, who admittedly had no right to take property by eminent domain against a public utility, for damages and an injunction. The wrongful act complained of was the erection of a power line by the public utility which, it was claimed, obstructed the flight of airplanes into and out of the airport.
" And in Smith v. New England Aircraft Co., 270 Mass. 511, 528, 170 N.E. 385, 392, 69 A.L.R. 300, it was stated that "Aerial navigation, important as it may be, has no inherent superiority over the landowner where their rights and claims are in actual conflict." See also Air Terminal Properties v. City of New York, 172 Misc. 945, 16 N.Y.S.2d 629, where the court denied an injunction seeking to restrain the planting of trees on a city street adjacent to the plaintiff's airport on the ground that the trees would interfere to some extent with the operation of the airport; and Capitol Airways v. Indianapolis Power Light Co., 215 Ind. 462, 18 N.E.2d 776, in which the owner of an airport was denied the right to recover damages for the alleged interference with and destruction of his established business caused by the defendant's constructing a power line, consisting of steel towers about 90 feet in height and electric wires, along the boundary of the airport. While the placing of obstructions near the property line of an airport solely for the purpose of harassing the owner thereof, and without relation to any reasonable use which the adjoining landowner might wish to make of his property, might well be held to be a nuisance, that is not the case here. It is unquestioned that the defendant intends to use its premises for a drive-in theatre, which is a legitimate business, and one which is permitted in that area of Panama City where the defendant intends to operate it.
We would be unable from this record to announce as a matter of law that such a line could not be insulated, especially in view of the fact that all the evidence and the instructions requested by defendant and given by the court accept the proposition that such lines are in fact insulated by the employment of rubber gloves, rubber blankets and line hose, and by proper placement of the line itself. See Capitol Airways v. Indianapolis Power Light Co., 215 Ind. 462, 18 N.E.2d 776, where the Indiana court held that erection of power line upon the company's private property suspended from towers high above the ground is insulation within the statute requiring certain wiring to be insulated. We concede that the allegation and the theory of proof herein was directed largely toward the proposition whether the line of defendant was insulated with a continuous covering as ordinarily observed, but the gist of the issue, as plainly apparent from the proof and the instructions, was that it failed to protect its employee in some reasonable manner from contact with the electric current.