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Hyde v. Somerset Air Service Inc.

Decided: October 8, 1948.

DONALD F. HYDE AND MARY C. HYDE, HIS WIFE, COMPLAINANTS,
v.
SOMERSET AIR SERVICE, INC., ET AL., DEFENDANTS



On final hearing.

Jayne, J.s.c.

Jayne

Noise which is created by the pursuit of a lawful enterprise has no inevitable immunity from judicial suppression. It may have the characteristics which constitute an actionable nuisance. It must, however, be of that quality which affects injuriously and to an unreasonable degree the health or comfort of persons of ordinary sensibilities in the vicinity and exceeds the bounds of reasonable adjustment to the conditions of the locality. Thus, although the noises may emanate from the conduct of a business duly licensed by the State because of its public advantages, the character, volume, frequency, duration, time, and locality of the noises continue to be relevant factors in determining whether the alleged annoyance surpasses the requirements of the business operations and in fact unreasonably interferes with the ordinary comfort of human existence in the neighborhood. Benton v. Kernan , 130 N.J. Eq. 193, 21 A.2d 755; Vaszil v. Molnar , 133 N.J. Eq. 577, 33 A.2d 743; Kosich v. Poultrymen's Service Corp. , 136 N.J. Eq. 571, 43 A.2d 15; Oechsle v. Ruhl , 140 N.J. Eq. 355, 54 A.2d 462.

The maxim, sic utere tuo ut alienum non laedas , tersely expresses the established doctrine of the law. And so in such cases it is a question of what's what rather than who's who.

Indeed, the Legislature or governmental agencies cannot constitutionally confer upon individuals or private corporations, acting primarily for their own profit, although for public benefit as well, any right to deprive persons of the lawful enjoyment of their property. Pennsylvania R.R. Co. v. Angel , 41 N.J. Eq. 316, 7 A. 432; Kosich v. Poultrymen's Service Corp., supra; Oechsle v. Ruhl, supra.

The present alleged cause of action relates to the asserted objectionable operations of an airport under the management of the defendants in the Township of Branchburg, Somerset County.

Initially, it must be understood that the primitive common law doctrine that ownership of land extended to the periphery of the universe (as expressed in the figurative phrase, cujus est solum, ejus est usque ad caelum) has been substantially disestablished. The air has become a public highway, yet the landowner in the present day owns at least as much of the super-adjacent space above the ground as he can occupy and utilize in connection with his land. The law preserves the proper enjoyment of the land and consequently recognizes the exclusive control of the owner over "the immediate reaches of the enveloping atmosphere." United States v. Causby , 328 U.S. 256, 66 S. Ct. 1062; see, Hinman v. Pacific Air Transport , 84 Fed. (2 d) 755 (C.C.A. 9 th 1936), cert. den. 300 U.S. 654, 57 S. Ct. 431.

Private convenience must often in our modern environments yield to public convenience, but private comfort, health, and safety are still precious in the eyes of the law. Hennessy v. Carmony , 50 N.J. Eq. 616, 25 A. 374; Reilley v. Curley , 75 N.J. Eq. 57, 71 A. 700.

A pertinent exemplification of that quality of our law is found in the statute. R.S. 6:2-6, N.J.S.A.

"Flight in aircraft over the lands and waters of this state is lawful, unless at such a low altitude as to interfere with the then existing use to which the land or water, or the space over the land or water, is put by the owner, or unless so conducted as to be imminently dangerous to persons or property lawfully on the land or the water beneath. * * *"

With like intention the State Aviation Commission was created and invested with the power to promulgate reasonable rules and regulations not only to encourage "the development of aeronautics in this State" ...


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