The opinion of the court was delivered by: SMITH
This is a civil action in which the plaintiffs: the Cities of Newark, Elizabeth and Linden, and the Townships of Hillside and Union, and six individuals, seek to enjoin: first, 'the airborne operations of (the named) airlines to and from Newark Airport to the extent that the same constitutes a public and/or a private nuisance,' and second, to enjoin 'the continued airborne operations of said airlines to and from Newark Airport to the extent that the said constitutes a trespass on the property of the plaintiffs.' These prayers for relief are contained in the first and second counts of the amended complaint. There remain as defendants only seven of the twelve air carriers which operate from the Newark Airport, to wit, Eastern Airlines, Inc., American Airlines, Inc., Allegheny Airlines, Inc., National Airlines, Trans World Airlines, Inc., and United Airlines, Inc. The jurisdiction of the Court is based solely on diversity of citizenship.
The first and second counts of the amended complaint assert claims for injunctive relief also against the Port of New York Authority as the lessee and operator of the Newark Airport. These counts were dismissed, on timely motions made by the said defendant, on the ground that they failed to state claims upon which relief could be granted. See Order of Dismissal entered May 19, 1955. We find upon a review of the file, and particularly the jurisdictional allegations of the complaint, that these counts could have been, and should have been, dismissed also because of the absence of diversity of citizenship between the plaintiffs and the said defendant. See Delaware River Joint Toll Bridge Commission v. Stults, D.C.D.N.J.1956, 146 F.Supp. 241, and the cases therein cited, particularly Jacobson v. New York, N.H. & H.R. Co., 1 Cir., 1953, 206 F.2d 153, affirmed per curiam 1954, 347 U.S. 909, 74 S. Ct. 474, 98 L. Ed. 1067. The presence of the Port of New York Authority as a defendant was fatal to the Court's jurisdiction, but since the Port of New York Authority was not an indispensable party, the dismissal of the action as to it cured the defect. The Port of New York Authority was permitted, on timely application, to enter its appearance as an intervenor.
There is included in the amended complaint a third count, which contains a prayer for relief against the Port of New York Authority and the United States of America, to wit, that they or either of them, be compelled to acquired by condemnation the properties of the plaintiff. These properties are neither identified nor described. The claim for relief therein asserted against the United States of America was dismissed on the consent of the parties. See Order of Dismissal entered January 10, 1955. The claim for relief asserted against the Port of New York Authority was dismissed on a timely motion made by the said defendant. See Order of Dismissal entered December 18, 1957. It should be noted that as to this count, as in the others, there was a lack of jurisdiction in the Court.
The action proceeded to trial only against the defendant airlines, the claim for relief as to the other defendants having been dismissed. The Court perceived before the close of the plaintiffs' case that the general character of the testimony and the manner in which it was presented, assuming a right to injunctive relief, would render compliance with the requirements of Rule 65(d) of the Federal Rules of Civil Procedure, 28 U.S.C.A., difficult, if not impossible. We were of the opinion that a prayer for relief specific in terms, supported by a particularization of the alleged enjoinable operations, was essential if the Court were to comply with the said rule. We, therefore, requested the plaintiffs to file such a prayer for relief supported by an informative particularization of the enjoinable operations of the defendant airlines.
The plaintiffs, in response to the Court's request, filed a 'Memorandum of Relief Sought' in which they prayed that the 'defendant airlines' be restrained 'from operating any of their airplanes over the congested residential sections of Newark, Elizabeth, Hillside and Union at an altitude of less than Twelve Hundred Feet from the Ground.' (Emphasis by the Court). The term 'congested residential sections' is defined therein as 'those locations' in which the witnesses reside. The prayer for relief is admittedly based on the 'Noise Abatement Procedures' recommended by the National Air Transport Coordinating Committee, a voluntary group having no official status.
We assume that the only relief now sought by the plaintiffs under the first count of the complaint is that specified in the 'Memorandum of Relief Sought.' This assumption is predicated not only on the specification embodied in the Memorandum but also on the argument advanced by counsel for the plaintiffs in support of it. (See particularly pages 1415, 1416 and 1417 of the Transcript). Mr. Van Riper, appearing on behalf of the plaintiffs, stated at page 1,417: 'So that all that we are asking here -- not the closing of the Airport, not to stop them from flying -- all we are asking them to do is that they follow the recommendations of their own National Air Transport Committee.'
The defendant airlines are air carriers within the meaning of the Civil Aeronautics Act, and particularly Section 401(2) of Title 49 U.S.C.A., and are engaged in interstate air commerce, as defined in Section 401(20) of the said Title, under the authority of Certificates of Public Convenience and Necessity granted by the Civil Aeronautics Board, pursuant to the authority vested in it by Section 401 of the Act, 49 U.S.C.A. 481. Each of the defendants is authorized and required by the express terms of its certificate to maintain air transportation service between 'the co-terminal points New York, N.Y., and Newark, N.J.,' and the intermediate points therein designated. They operate from and to air terminal facilities maintained at the Newark Airport, a public airport classified by the Civil Aeronautics Administrator 'as an available and suitable airport for the purposes for which each of the defendants use said airport.' See Paragraphs 1, 7, 8 and 9 of the Requests for Admissions, a specimen copy of which is marked D-31 in evidence.
Each of the defendants is the holder of an 'Air Carrier Operating Certificate' issued to it by the Civil Aeronautics Administrator, pursuant to the provisions of § 40.10, et seq., of the Civil Air Regulations, 14 C.F.R., and particularly § 40.13, of the said Regulations, 14 C.F.R. Each of the defendants is required by the express terms of the said certificate to conduct 'all operations * * * in accordance with the terms and provisions of the Operations Specification,' prescribed by the Civil Aeronautics Administrator, the 'Civil Aeronautics Act, and the Civil Air Regulations.' These specifications are subject to amendment by the Administrator, pursuant to the authority vested in him by § 40.21 of the Civil Air Regulations, 14 C.F.R.
It should be noted that the Operations Specifications issued to each of the defendants are comprehensive and prescribe in detail, in addition to other conditions, not only the en route limitations but also the procedures to be followed in the take-off and approach patterns. It should be noted further that § 40.10 of the Regulations, supra, prohibits the operation of an airplane 'in violation of the terms of an air carrier operating certificate' of which the operations specifications are an integral part. It should be noted also that the operations specifications must conform to the standards prescribed by the pertinent regulations, § 40.10, et seq.
There can be no doubt that the defendant airlines, like all certificated air carriers, are subject to an elaborate and uniform system of regulations and controls. They operate under the authority granted by the Civil Aeronautics Board and are under the obligation to conduct their operations in compliance with the regulations promulgated by the Board under the authority vested in it by the Civil Aeronautics Act. They may operate only under the terms and conditions prescribed by the Civil Aeronautics Administrator and embodied in the operations specifications.
It was further stipulated: 'Each flight to or from Newark Airport by the defendant airlines was, while approaching, landing at, taxiing on, taking off from and departing from Newark Airport, under the control of an air traffic controller appointed by the Civil Aeronautics Administration and was operated in accordance with instructions received from such controller.' See Page 1516 of the Transcript.
Federal Regulation of Air Commerce
The enactment of the Civil Aeronautics Act, 49 U.S.C.A. § 401 et seq., was a proper exercise by Congress of the power granted by the Commerce Clause of the Constitution, Article I, Section 8, Clause 3. This legislation clearly evidenced the intent of Congress to preempt the exclusive power of regulation and control in the field of interstate air commerce. There was created thereunder a Civil Aeronautics Board, 49 U.S.C.A. § 421, charged with the responsibility of, and vested with the authority to: first, encourage and develop in the public interest 'an air-transportation system properly adapted to the (present and future) needs of the foreign and domestic commerce of the United States, of the Postal Service, and of the national defense'; and second, regulate 'air commerce in such manner as to best promote its development and safety.' See Declaration of Policy, Section 2 of the Act, 49 U.S.C.A. § 402; see also Section 601 of the Act, 49 U.S.C.A § 551. The Board was empowered to supervise and control by rule, regulation and order the entire field of interstate air commerce. Section 205 of the Act, 49 U.S.C.A. § 425. It was also made the final arbiter of the public interest.
Section 3 of the Act, 49 U.S.C.A. § 403, provides: 'There is recognized and declared to exist in behalf of any citizen of the United States a public right of freedom of transit in air commerce through the navigable airspace of the United States.' The term 'navigable airspace' is defined in general terms in Section 10 of the Air Commerce Act of 1926, 49 U.S.C.A. § 180, as follows: '* * *, the term 'navigable airspace' means airspace above the minimum safe altitudes of flight prescribed by the Civil Aeronautics Authority, * * *.' The term is not otherwise defined by statute, but is defined by regulation.
The Civil Aeronautics Board, pursuant to the authority vested in it to prescribe and revise from time to time 'air traffic rules governing the flight of * * * aircraft, including rules as to safe altitudes of flight,' Section 601(a)(7) of the Act, 49 U.S.C.A. § 551(a)(7), promulgated §§ 60.17, 14 C.F.R., which prescribed minimum safe altitudes. This rule defined the 'navigable airspace' in the manner contemplated by the statutes hereinabove cited.
The pertinent provisions of the applicable regulation read as follows:
' § 60.17 Minimumsafe altitudes. Except when Necessary for Take-Off or Landing, no person shall operate an aircraft below the following altitudes. (Emphasis by the Court).
'(a) Anywhere. An altitude which will permit, in the event of the failure of a power unit, an emergency landing without undue hazard to persons or property on the surface;
'(b) Over congested areas. Over the congested areas of cities, towns or settlements, * * *, an altitude of 1,000 feet above the highest obstacle within a horizontal radius of 2,000 feet from the aircraft.'
The rule seems to recognize impliedly that in the glide path which must be followed in both take-off and landing, the minimum altitude ...