WESTCHESTER v. GREENWICH, 227 Conn. 495 (1993)

629 A.2d 1084

(14710)Supreme Court of Connecticut

PETERS, C.J., CALLAHAN, BORDEN, KATZ and PALMER, Js.

The plaintiff, a New York municipal corporation that owns and operates an airport located on the border of New York and Connecticut, sought, in the United States District Court, injunctive and declaratory relief claiming that trees growing on land owned by the defendant property owners interfered with the use of one of the airport runways. The District Court, concluding that the plaintiff had acquired a prescriptive easement in the flight zone, granted the plaintiff a limited injunction authorizing the trimming or removal of trees obstructing the use of the runway, and the defendants appealed to the United States Court of Appeals for the Second Circuit. The Court of Appeals certified to this court the question whether the plaintiff could have acquired an easement by prescription. Held that because the plaintiff did not show that its use was adverse as required by Connecticut law, the plaintiff had not acquired a prescriptive easement; to be adverse a use must be such

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as to give a right of action in favor of the party against whom it has been exercised, and the defendant property owners had no right of action against the plaintiff because federal law prohibits landowners from obtaining injunctive relief against aircraft using the navigable airspace of the United States, and the defendants could not have sought compensation for the overflights, which never interfered with their use and enjoyment of their properties.

Argued April 27, 1993

Decision released July 28, 1993

Action for, inter alia, an injunction prohibiting the defendants from encroaching upon and obstructing the approach zone to a certain runway of a municipal airport owned and operated by the plaintiff, and for other relief, brought to the United States District Court for the Southern District of New York, where the court, Goettel, J., dismissed the action against the named defendant and granted in part the remaining defendants’ motion to dismiss certain of the counts against them, and where the remaining defendants filed a counterclaim; thereafter, the court granted in part the plaintiff’s motion to dismiss the counterclaim; subsequently, the court granted in part both the plaintiff’s and the remaining defendants’ motions for summary judgment determining that the plaintiff had acquired a prescriptive easement to fly over the remaining defendants’ properties and ordering certain other relief, and the remaining defendants appealed to the United States Court of Appeals for the Second Circuit, which certified to this court the applicable question of law.

Karl S. Coplan, pro hac vice, with whom were John M. Callagy, pro hac vice, Elizabeth Tyler Grove, Stuart A. McKeever and, on the brief, Edward V. O’Hanlan, John E. Meerbergen, Joyce H. Young, Eve C. Gartner, pro hac vice, William Schwartz, pro hac vice, Chase Rogers and Rosalind Kelley, for the appellants (defendant town of Greenwich et al.).

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Marguerite R. Wiess, pro hac vice, with whom were Russell J. Tenenzapf, pro hac vice, and, on the brief, Carol L. Van Scoyoc, pro hac vice, and Marilyn J. Slaatten, pro hac vice, for the appellee (plaintiff).

Karen P. Blado, J. E. Murdock III, Leonard A. Ceruzzi, pro hac vice, and Janet V. Lanigan, pro hac vice, filed a brief for the National Business Aircraft Association et al. as amici curiae.

William E. Hegarty and John B. Conway, pro hac vice, filed a brief as amici curiae.

Richard Blumenthal, attorney general, and Cornelius F. Tuohy, assistant attorney general, filed a brief for the state of Connecticut as amicus curiae.

John S. Yodice, Ronald D. Golden and Raymond C. Speciale, pro hac vice, filed a brief for the Aircraft Owners and Pilots Association as amicus curiae.

PALMER, J.

The dispositive question in this case is whether the plaintiff, the county of Westchester of the state of New York, has acquired an air navigation (avigation) easement[1] by prescription over certain Connecticut property under the laws of this state. This and other questions[2] come to this court upon our grant of certification from the United States Court of Appeals for the Second Circuit pursuant to General Statutes

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51-199a and Practice Book 4168.[3] Westchester v. Greenwich, Docket No. 92-7698(L) (2d Cir. January 6, 1993). We conclude that, in the circumstances of this case, the plaintiff has not acquired an avigation easement by prescription.[4]

The record certified by the Second Circuit Court of Appeals provides the following facts.[5] The plaintiff is a New York municipal corporation that owns and operates the Westchester County Airport (airport). The airport is located in New York adjacent to the border between New York and Connecticut. The airport currently utilizes two runways. Runway 11/29 (runway) is an alternative runway that is normally used only if

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prevailing crosswinds make use of the main runway too dangerous for all but the largest aircraft or during an emergency. The runway abuts New York’s border with Connecticut and its air approach zone is located almost entirely above Connecticut. The defendants[6] are Connecticut residents who own the land below the approach zone. Trees on their land have, over time, grown into that airspace.

Buffers of airspace known as clear zones surround the actual flight paths used by aircraft during take-offs and landings. The Federal Aviation Administration requires that these clear zones be kept free of obstructions so that aircraft may navigate safely during take offs and landings. In 1989, due to penetration into the clear zone by certain of the defendants’ growing trees, the Federal Aviation Administration, in effect, reduced the usable length of the runway by approximately 1350 feet.

As a consequence, in February, 1990, the plaintiff initiated an action for injunctive and declaratory relief in the United States District Court for the Southern District of New York claiming, inter alia, that the defendants’ trees interfered with the use of the runway. Westchester v. Greenwich, 745 F. Sup. 951, 953
(S.D.N.Y. 1990).[7] The plaintiff claimed in the District

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Court that “the use of the airspace for approximately forty years has given [it] a prescriptive easement in this flight zone”; id., 954; and sought an injunction authorizing it to top or cut down, as necessary, trees that had penetrated into that zone and had thereby interfered with the plaintiff’s claimed easement.[8]

Both the plaintiff and the defendants subsequently filed motions for summary judgment. Westchester v. Greenwich, 793 F. Sup. 1195 (S.D.N.Y. 1992). The District Court, acknowledging that the courts of this state had never determined whether avigation and clearance easements[9] may be acquired by prescription, concluded nevertheless that the plaintiff had acquired such easements; id., 1205, 1207; and granted the plaintiff “a limited injunction to cut back, at its own expense, the trees occupying runway 11/29’s clear zones . . . .” Id., 1222. The court further held that “[t]o the extent, certain trees cannot be simply trimmed back without destroying them, the County shall be permitted to remove them completely but must compensate defendants for their loss.” Id. The defendants appealed to the

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United States Court of Appeals for the Second Circuit. The Court of Appeals subsequently certified the present questions to this court.

Prescriptive easements are recognized in this state. General Statutes 47-37;[10] Klar Crest Realty, Inc. v. Rajon Realty Corporation, 190 Conn. 163, 459 A.2d 1021 (1983). “To establish an easement by prescription it is absolutely essential that the use be adverse. It must be such as to give a right of action in favor of the party against whom it has been exercised.” Whiting v. Gaylord, 66 Conn. 337, 344, 34 A. 85 (1895). In order to prove such adverse use, the party claiming to have acquired an easement by prescription must demonstrate that the use of the property has been “open, visible, continuous and uninterrupted for fifteen years and made under a claim of right.” Andrzejczyk v. Advo System, Inc., 146 Conn. 428, 431, 151 A.2d 881 (1959); Klar Crest Realty, Inc. v. Rajon Realty Corporation, supra, 168; Putnam, Coffin Burr, Inc. v. Halpern, 154 Conn. 507, 515, 227 A.2d 83 (1967). There can be no claim of right unless the use is “unaccompanied by any recognition of his right [of the servient tenement] to stop such use. A use by express or implied permission or license cannot ripen into an easement by prescription.” Sachs v. Toquet, 121 Conn. 60, 66, 183 A. 22 (1936); Klar Crest Realty, Inc. v. Rajon Realty Corporation, supra. Connecticut law refrains from extinguishing or impairing property rights by prescription unless the party claiming to have acquired an easement by prescription has met each of these stringent conditions.

Although these principles are firmly rooted in our statutory and common law, the issue of whether an avigation easement may be acquired by prescription is one

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of first impression in this state. At least two other courts have held that an avigation easement may not be acquired by prescription. See Hinman v. Pacific Transport, 84 F.2d 755 (9th Cir. 1936), cert. denied, 300 U.S. 654, 57 S.Ct. 431, 81 L.Ed. 865 (1937); Sticklen v. Kittle, 168 W. Va. 147, 287 S.E.2d 148 (1981). Although we are not aware of any case in which a prescriptive avigation easement has been upheld, several jurisdictions have suggested that such an easement may be acquired under appropriate circumstances. See, e.g., Drennen v. Ventura, 38 Cal.App.3d 84, 112 Cal.Rptr. 907 (1974); Shipp v. Louisville Jefferson County Air Board, 431 S.W.2d 867 (Ky. 1968), cert. denied, 393 U.S. 1088, 89 S.Ct. 880, 21 L.Ed.2d 782 (1969); Petersen v. Seattle, 94 Wash.2d 479, 618 P.2d 67 (1980). Because we conclude that the plaintiff did not acquire a prescriptive avigation easement in the circumstances presented, we need not decide whether an avigation easement may ever be acquired by prescription in this state.

As we have stated, an easement may not be acquired by prescription unless the use of the property is “such as to give a right of action in favor of the party against whom [the adverse use] has been exercised.” Whiting v. Gaylord, supra, 344. For the plaintiff to have acquired a prescriptive avigation easement, therefore, the defendants must have had a right of action against the plaintiff during a fifteen year period when the plaintiff’s use of the airspace over the defendants’ properties was “open, visible, continuous and uninterrupted.” The defendants, however, had no right of action against the plaintiff to stop the overflights because federal law prohibits landowners from obtaining injunctive relief against aircraft using the navigable airspace of the United States.[11] United States v. New Haven, 367 F. Sup. 1338,

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1341 (D.Conn. 1973), aff’d, 496 F.2d 452
(2d Cir.), cert. denied, 419 U.S. 958, 95 S.Ct. 218, 42 L.Ed.2d 174 (1974); East Haven v. Eastern Airlines, Inc., 331 F. Sup. 16, 32-33 (D.Conn. 1971), aff’d, 470 F.2d 148 (2d Cir. 1972), cert. denied, 411 U.S. 965, 93 S.Ct. 2144, 36 L.Ed.2d 685 (1973). In these circumstances, the defendants could not have reclaimed the exclusive use of the airspace above their properties and, therefore, the use of that airspace by the plaintiff can not be considered adverse.[12]

The plaintiff argued, and the District Court agreed, that the right of the defendants to seek compensation from the plaintiff for aircraft flights “so low and so frequent as to be a direct and immediate interference with the enjoyment and use of the land”;[13] United States v. Causby, 328 U.S. 256, 266, 66 S.Ct. 1062, 90 L.Ed. 1206 (1946); Griggs v. Allegheny, 369 U.S. 84, 88-89, 82 S.Ct. 531, 7 L.Ed.2d 585 (1962); constituted a right of action[14] sufficient to satisfy the requirements of our

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law of prescription. We disagree. The certified record does not include any facts to suggest, and the District Court did not find, that the overflights had, in any manner, harmed the defendants’ trees or otherwise interfered with the use and enjoyment of the defendants’ properties. Nor did the defendants so claim. The defendants cannot have been required to have sought compensatory relief in order to have forestalled the plaintiff’s acquisition of a prescriptive avigation easement when the overflights had never interfered with the defendants’ use and enjoyment of their properties. Although we doubt that we would ever require a landowner to assert a constitutional takings claim in order to avoid the acquisition of a prescriptive avigation easement, we are satisfied that these defendants were not obliged to do so.[15]

The first certified question is answered: No, not in these circumstances; because the plaintiff has failed to show that its use was adverse as required by Connecticut law.

No costs will be taxed to either party.

In this opinion the other justices concurred.

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