Appeal from the United States District Court for the Eastern District of Wisconsin No. 73 C 371 MYRON L. GORDON, Judge.
Castle, Senior Circuit Judge, Pell, Circuit Judge, and William J. Jameson, Senior District Judge.*fn*
The plaintiffs, owners of property in Milwaukee County, brought this action against the County, as owner and operator of General Mitchell Field, the major Milwaukee airport, and against five federally-certified airlines which utilize the airport facilities. Essentially, the plaintiffs charge that aircraft, in taking off and landing at Mitchell Field, fly over their property at low altitudes, causing noise, vibrations, fumes, and the dropping of dust and noxious substances on their property. The plaintiffs claim that the defendants have thereby deprived them of their property without just compensation, in violation of the Fifth and Fourteenth Amendments. In addition, the plaintiffs charge that the defendants have violated § 114.04 of the Wisconsin Statutes and have created a nuisance. Finally, the plaintiffs allege, somewhat vaguely, that the County has violated 49 U.S.C. § 1711 et seq. [previously 49 U.S.C. § 1101 et seq.] and has failed to conform with certain federal regulations. There is, however, no allegation that the defendant airlines have ever violated the federal regulations governing their operations. Jurisdiction is based on 28 U.S.C. §§ 1331 and 1337.
As relief, the plaintiffs seek actual and punitive damages, a mandatory injunction directing the County to initiate condemnation proceedings against their property, and a promulgation, by the district court, of rules and regulations to govern the aircraft and airport operations at Mitchell Field.
The district court properly held that no cause of action dismiss the complaint and the plaintiffs appeal.*fn1
The district court properly held that no cause of action is stated against the defendants under the Fifth Amendment since that amendment applies only to a taking by the federal Government, and not to actions by state agencies or private parties. Fallbrook Irrigation District v. Bradley, 164 U.S. 112, 158, 41 L. Ed. 369, 17 S. Ct. 56 (1896).
II. Fourteenth Amendment -- Airlines.
We also agree with the district court that no cause of action has been stated against the airlines under the Fourteenth Amendment. In Griggs v. Allegheny County, 369 U.S. 84, 7 L. Ed. 2d 585, 82 S. Ct. 531 (1962), the Supreme Court held that when a person's property has been "taken," in a constitutional sense, by low-altitude aircraft flights over his property, the "taking" is attributable to the state instrumentality which owns and operates the airport. The Court expressly rejected the contention that the airlines, whose flights were in accord with the federal regulations, should be held liable for such "taking":
"It is argued that though there was a 'taking,' someone other than [Allegheny County] was the taker -- the airlines or the C.A.A. acting as an authorized representative of the United States. We think, however, that [the County], 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." 369 U.S. at 89. (Footnote omitted.)
See also, City of Boston v. Massachusetts Port Authority, 320 F. Supp. 1317, 1319-20 (D. Mass. 1971), aff'd, 444 F.2d 167 (1st Cir. 1971); Town of East Haven v. Eastern Airlines, Inc., 331 F. Supp. 16, 34 (D. Conn. 1971), aff'd, 470 F.2d 148 (2d Cir. 1972), cert. denied, 411 U.S. 965, 36 L. Ed. 2d 685, 93 S. Ct. 2144 (1973).
In the present case, as in Griggs, there is no allegation that the airlines were violating any federal regulations in their flights.*fn2 The plaintiffs, if there has been a "taking" of their property, must look to the County, as the owner and operator of the airport, for compensation. See Yearsley v. ...