The claim for injunctive relief asserted by the City of Newark under the second count must, therefore, be dismissed because of the insufficiency of the evidence.
Claim of the City of Linden
The claim of the City of Linden was heretofore dismissed, after the trial was under way, because of its failure to answer interrogatories propounded by the defendant.
Claims of Individuals
There were joined as plaintiffs six individuals, four of whom, George W. Reigle, William Panitch, Joseph Spielvogel and Lawrence G. Beisler, offered no evidence in support of the claims asserted by them under the second count. Their claims must, therefore, be dismissed. It should be noted, however, that the claim of the said William Panitch was voluntarily dismissed long before trial. We direct our attention to the remaining claims, that of Anna Biondi and that of Irving S. Jay, each of whom appeared and testified.
Claim of Anna Biondi
This plaintiff lives at 444 Schiller Street, Elizabeth, N.J., in a house which she occupies with her husband, son and mother. The mother is admittedly the owner of the house, which is located approximately 14,700 feet from the start of the take-off run. She testified generally that planes coming from the airport flew 'low' over the house and that she and the members of her family were disturbed by the noise and vibration. She further testified that it was necessary to replace two ceilings in the house, but there was no evidence which would support a determination that there was any causal relation between the damage to the ceiling and the flight of aircraft over the house.
Neither this plaintiff, nor any witness on her behalf, ventured an approximation of the altitudes at which planes passed over the house. There is clearly no evidence which will support a determination that aircraft passed below the navigable airspace and within the immediate reaches of the land. The lack of such evidence is fatal to the claim for relief.
We find in the case of this plaintiff, as in the case of the City of Newark, an additional deficiency in the evidence. Even if we assume that there was a trespass over the lands, there is no evidence which will support a determination that the defendant airlines were the ones guilty. There is no evidence which will enable the Court to establish the identity of the offenders. What has been said concerning the claim of the City of Newark is equally applicable to the claim of this plaintiff.
It further appears that this plaintiff lacks the possessory interest in the land sufficient to qualify her to maintain her claim under the second count. The plaintiff is an occupant of the property, but with her mother, who is admittedly the owner thereof; it would appear from her testimony that the plaintiff is neither the owner nor a tenant in exclusive possession of the property. It follows that the cause of action under the second count, based upon a trespass to realty, could have been asserted only by the mother. It appears that she is the real party in interest.
The claim for injunctive relief asserted by this plaintiff under the second count must be dismissed for the reasons herein stated.
Claim of Irving S. Jay
This plaintiff lives at 333 Itaska Street, Hillside, N.J., in a house which is more than three and a half miles from the start of the take-off run. He testified generally that he and the members of his family were, and are, disturbed by the noise and vibration caused by planes which pass over his house.
He was asked, 'Will you tell us just what happened and what you saw?' He answered: 'Yes. During the period .that I am home I noticed that there are anywhere from thirty to fifty planes until one o'clock it the morning, that is, the period from six o'clock at night to one o'clock in the morning. Some near, some far, some very, very close. These planes come over, both coming from the Airport and going to the Airport. They come over with a terrible roar; they come over, they shake the house; they have caused cracks in the ceiling, they have caused the dishes to jingle in the cupboard, they have caused us to wake up at night. They disturb my sleep and my family's sleep.' (Page 351 of the Transcript). When asked as to the identity of the planes, he answered: 'American, Eastern, TWA and several others like that.' When pressed further, he added: 'United,' and 'Mohawk.' (Page 353 of Transcript). It appears from his testimony that these identifications were made during the summer months. When asked, 'how many of the planes that come over from 6 P.M., to 8 A.M., did you identify?', apparently referring to observations made by the plaintiff during the winter months, he answered, 'I couldn't identify any.' The testimony was otherwise so indefinite that it would be impossible for the Court to determine with any reasonable degree of certainty the frequency with which any one or more of the aircraft of any one or more of the defendant airlines passed over the property of the plaintiff.
A deficiency of evidence, common to the claims of the other plaintiffs, is present here. A careful examination of the plaintiff's testimony discloses that he did not venture an approximation of the altitudes at which planes crossed his property. There is clearly no evidence which will support a determination that aircraft passed below the navigable airspace and within the immediate reaches of the land, a determination of fact which is necessary if the Court is to adjudge any one or more of the defendants guilty of a trespass to realty.
We do not mean to suggest that the plaintiff must prove with mathematical exactitude the altitudes at which aircraft ordinarily passed over his property; this might very well be an impossible task. There must be some evidence, however, which will enable the Court to make a determination that the aircraft flights were at altitudes below the navigable airspace, which is in the public domain, and within the superadjacent airspace immediately above the land. The ultimate determination must be predicated upon a consideration of aircraft altitudes, and therefore some evidence as to altitudes, for example, well-grounded approximations, is necessary. A determination that there has been a continuing trespass may not rest on mere speculation and conjecture.
The claim for injunctive relief asserted by this plaintiff under the second count must, therefore, be dismissed because of the insufficiency of the evidence.
Claims for Damages
There is asserted by each of the plaintiffs a claim for damages. These claims are stated in the second count. There is clearly no evidence to support the claims for damages asserted by the municipalities and, therefore, their claims must be dismissed. The dismissal of these claims for damages may be sustained also on the ground heretofore discussed, to wit, the insufficiency of the evidence to support the charge of trespass to realty.
The claim asserted by the plaintiff Anna Biondi must be dismissed because, as heretofore held, she is not the real party in interest; she is neither the owner of the property nor a person with an exclusive possessory interest therein, and for this reason may not maintain an action in trespass.
The claim for damages here made by the plaintiff Irving S. Jay rests on rather tenuous evidence but must be dismissed because of the lack of jurisdiction and not on the merits. This plaintiff testified that the walls of his home were cracked but offered no other evidence of damage. Therefore, even if we assume that any one or more of the defendant airlines is answerable in damages, we are satisfied from the testimony that the amount of the claim does not exceed $ 3,000 exclusive of interests and costs. The jurisdictional requirements established by statute, 28 U.S.C.A. § 1332(a)(2) are absent.
The defendants shall prepare and submit to the Court, on notice to the plaintiffs, an appropriate order of dismissal.
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