Opinion
No. 70-783
Decided June 30, 1971.
Appropriation of property for public use — Low and frequent airflights interfering with enjoyment of land — Constitute a "taking" — Mandamus available, when.
IN MANDAMUS.
This is an action in mandamus originating in this court.
Relators are property owners in the Wonderland Addition in the city of Columbus and are similarly situated in relation to the Columbus International Airport as were the property owners in State, ex rel. Royal, v. Columbus (1965), 3 Ohio St.2d 154, certiorari denied, 383 U.S. 925, and State, ex rel. Partlow, v. Columbus (1970), 22 Ohio St.2d 1.
As did relators in Royal and Partlow, relators here seek to compel respondents to institute appropriation proceedings for the purpose of determination of compensation due for property rights allegedly taken from them as a result of frequent and low-level flights of aircraft in connection with the operation of the Columbus International Airport.
Respondents contend, as they did in Partlow, that there is a national sovereignty in air space "over which the United States exercises complete and exclusive jurisdiction."
Additionally, respondents claim that they are immune from liability in that they retain only a maintenance authority in connection with the airport operation and are without authority in connection with the right to control flight operations, which right remains in the hands of the United States as administered through the Federal Aviation Administration. Respondents' claim of immunity is thus predicated on their being the agents of the United States.
Mr. Dwight L. Fullerton and Mr. Alan C. Travis, for relators.
Mr. John C. Young, city attorney, Mr. William J. Melvin and Mr. Thomas A. Bustin, for respondent.
In Partlow, the national air space defense was before this court, which allowed the writ of mandamus on authority of Royal and Griggs v. Allegheny (1962), 369 U.S. 84. In Partlow, respondents, as here, also contended that the United States was a necessary party.
While respondents now raise the more precise question of immunity based upon the complete right to control by the federal government, it appears clear that even this specific question was considered in Griggs, where the court stated at page 89:
"It is argued that though there was a `taking,' someone other than respondent was the taker — the airlines or the C.A.A. acting as an authorized representative of the United States. We think, however, that respondent, which was the promoter, owner, and lessor of the airport, was in these circumstances the one who took the air easement in the constitutional sense. * * * The federal government takes nothing; it is the local authority which decides to build an airport vel non, and where it is to be located."
We find no significant difference in the "circumstances" in Griggs, as regard federal-local responsibilities to those presented here.
The writ of mandamus is allowed on authority of Royal, Partlow and Griggs.
Writ allowed.
O'NEILL, C.J., SCHNEIDER, HERBERT, DUNCAN, CORRIGAN, STERN and LEACH, JJ., concur.