The United States Supreme Court Cries… Fowl?

chicken croppedCausby, a farmer, grimaced as he blocked the sun with his right hand as if saluting the airplane flying just over his trees. The military had leased an airport next to his farm in 1942 with the option to renew monthly. It was located just outside of Greensboro, North Carolina. As the plane vanished into the sky the farmer slowly lowered his hand. The deafening noise from the aircraft had created chaos on the ground as the farmer’s livestock scattered in a panic. As many as six to ten frightened chickens flew into walls and died. The farmer took off his hat and slammed it down in the dirt. He was tired of the sleepless nights worrying that his poultry business would be completely destroyed by these low flying planes.

It was 1946 and World War II was over, FDR had died a year prior, the Nuremberg tribunals were under way in Germany, and the Supreme Court was reluctant to make any major decisions for fear it would look unsupportive of the U.S. government. The farmer’s name was Thomas Lee Causby and he claimed he was being flown out of business by the neighboring airport used by the U.S. military. The government should compensate him for 150 dead chickens. He argued that this constituted a violation of the Takings Clause of the Fifth Amendment.

The United States Supreme Court agreed to hear the case. Under common law until then, a property owner owned all the space above and below the earth of their property. Seven justices heard the arguments. Chief Justice Harlan Stone had died in April and Justice Robert H. Jackson stayed completely away from this case. The seven remaining justices recognized that there had to be a line drawn above everyone’s property if the air was to be a public highway free of trespassing lawsuits. The world had changed and commercial airlines would need permits from every private property owner they flew over. The Supreme Court agreed that there had to be a distinct point where the air belonged to the public domain for the benefit of the public.

However, in this case, the planes flew so low that it made Causby’s land uninhabitable. The seven remaining justices, in a 5 to 2 decision, agreed with Causby up to a point. They agreed he was owed compensation and there was a violation of the Taking Clause. Justice William O. Douglas delivered the opinion that the Takings Clause would be violated if flights caused “a direct and immediate interference with the enjoyment and use of the land.” The majority cited 49 U.S.C. §180 to support their decision. Congress defined that the “minimum safe altitude” is between 500 to 1000 feet depending on the aircraft and other factors. The planes flying over Causby’s land were often only 83 feet above his property. The court decided that the planes had taken the easement through Causby’s property. Therefore Causby, under the Takings Clause, should be compensated by the government. Causby had won and his chickens had ruffled enough feathers to shake up the legal world included the highest court in the land.

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See: United States v. Causby, 328 US 256 (1946)


About John W. Davis III

I am passionate about legal research, legal librarianship and scholarship, Intellectual Property, U.S. History, fine art, reading, and most sports. I have over 9 years of research and library experience and a unique history that has taken me from running my own fine art business to meeting Associate Justices of the U.S. Supreme Court.

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This entry was posted on February 15, 2015 by in History and tagged , , , , .

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