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April 26, 1983


Review of a decision of the Court of Appeals. Affirming Beilfuss, C.j. William G. Callow, J. (in Agreement).

The opinion of the court was delivered by: Beilfuss

This is a review of a decision of the court of appeals *fn1 which affirmed the judgment of the circuit court for Waukesha County, MAX RASKIN, Reserve Circuit Judge, presiding, in favor of the plaintiff in a private nuisance action.

In 1969 the plaintiff, Harold Krueger, commenced the operation of Krueger's Lawn Capitol, a lawn and garden supply and equipment store across the road from the Capitol Drive Airport (Airport). In 1977 the defendants, Dean and Lois Mitchell, purchased the Airport which had been in operation over 25 years. The Airport, although privately owned, is open for public use.

Prior to 1978 the Airport had no paved runways, rather the Airport had two grass runways. One runway ran along the west border of the Airport in a north-south direction, and the other runway ran along the north border in an east-west direction. In the fall of 1978 the defendants began construction of a paved runway which would run in a north-east/south-west direction, thus channeling ascending and descending aircraft in a path directly over the plaintiff's building. This paved runway was constructed for safety reasons in that it provided a longer runway distance than the unpaved north-south runway, and because the unpaved runways often became unsafe due to precipitation.

Krueger commenced this action in November of 1978, claiming that the paved runway would create a nuisance. He alleged that because the paved runway, unlike the unpaved runways, channeled flights directly over his business, the noise emanating from the airplanes would interfere with the use and enjoyment of his business. He sought an injunction enjoining the defendants from constructing the runway.

Krueger obtained an ex parte order restraining the Mitchells from continuing work on the runway. Following a hearing the trial court denied the plaintiff's request for a temporary injunction and dissolved the ex parte order. The plaintiff was then allowed to amend his complaint to request damages for the annoyance, inconvenience and discomfort caused by the noise emanating from the planes using the runway. Construction of the paved runway was subsequently completed.

In August of 1980 a jury trial was held. There was no evidence presented that the Airport was operating in violation of the law, and the only damages claimed were the annoyance, discomfort and inconvenience caused by the aircraft noise. The jury returned a verdict finding that the operation of the airport since 1978 constituted a nuisance. It awarded $2,000 for past damages and $10,000 for future damages. The trial court held that the jury could reasonably have found the Airport to constitute a nuisance but that the evidence was insufficient to support the amount of damages awarded. It therefore reduced the award to $500 for past injury and $2,500 for future annoyance, inconvenience and discomfort. The plaintiff accepted this remittitur and judgment was entered in favor of the plaintiff. The defendants appealed.

The court of appeals affirmed. The court concluded that there was sufficient evidence to support the jury's finding that the Airport constituted a nuisance, and the amount of damages awarded by the trial court. It also held that the plaintiff could recover damages for personal inconvenience, annoyance and discomfort caused by a nuisance even in the absence of any showing of monetary loss or bodily injury. We accepted the defendants' petition for review.

The first issue on review is whether Congress, by the enactment of the Federal Aviation Act of 1958 (Act), 49 U.S.C., sec. 1301 et seq., as amended, preempted the field of aviation noise control to the exclusion of private nuisance actions against owners of private airports.

The doctrine of preemption, a corollary to the supremacy clause of the United States Constitution, art. VI, cl. 2, invalidates state or local government regulation that "stands as an obstacle to the accomplishment and execution of the full purposes and objectives of Congress." Hines v. Davidowitz, 312 U.S. 52, 67 (1941). Under the the concept of preemption, federal regulation may preclude state or local action in the same area only if it was the clear and manifest purpose of Congress to supersede state authority. Rice v. Santa Fe Elevator Corp., 331 U.S. 218, 230 (1947). "The principle to be derived from our decisions is that federal regulation of a field of commerce should not be deemed preemptive of state regulatory power in the absence of persuasive reasons -- either that the nature of the regulated subject matter permits no other Conclusion, or that Congress has unmistakably so ordained." Florida Avocado Growers v. Paul, 373 U.S. 132, 142 (1963). Where Congress has not expressly stated its intent to preempt an area of commerce, the Supreme Court has enunciated the grounds for inferring that such intent as follows:

"The scheme of federal regulation may be so persuasive as to make reasonable the inference that Congress left no room for the States to supplement it. Pennsylvania R. Co. v. Public Service Comm'n, 250 U.S. 566, 569; Cloverleaf Butter Co. v. Patterson, 315 U.S. 148. Or the Act of Congress may touch a field in which the federal interest is so dominant that the federal system will be assumed to preclude enforcement of state laws on the same subject. Hines v. Davidowitz, 321 U.S. 52. Likewise, the object sought to be obtained by the federal law and the character of obligations imposed by it may reveal the same purpose. Southern R. Co. v. Railroad Commission, 236 U.S. 439; Charleston & W.C.R. Co. v. Varnville Co., 237 U.S. 597; New York Central R. Co. v. Winfield, 244 U.S. 147; Napier v. Atlantic Coast Line R. Co., supra. Or the state policy may produce a result inconsistent with the objective of the federal statute. Hill v. Florida, 325 U.S. 538." Rice, 331 U.S. at 230.

Under these principles, in order for common law nuisance actions based on aircraft noise to be preempted by the Act, Congressional intent to do so must be clear. The United States Supreme Court addressed the issue of federal preemption of aviation noise control in City of Burbank v. Lockheed Air Terminal, 411 U.S. 624 (1973). In Burbank, the court held that Congress, by the 1968 and 1972 amendments to the Act, had given "full control over aircraft noise" to the Federal Aviation Administration (FAA) "pre-empting state and local control." Id. at 633. The court relied on the pervasive nature of the federal scheme for aviation noise abatement, stating:

"Control of noise is of course deep-seated in the police power of the States. Yet the pervasive control vested in EPA and in FAA under the 1972 Act seems to us to leave no room for local curfews or other local controls. What the ultimate remedy may be for aircraft noise which plagues many communities and tens of thousands of people is not known. The procedures under the 1972 Act are under way. In addition, the Administrator has imposed a variety of regulations relating to takeoff and landing procedures and runway preferences. The Federal Aviation Act requires a delicate balance between safety and efficiency, 49 U.S.C. § 1348(a), and the protection of persons on the ground. 49 U.S.C. § 1348(c). Any regulations adopted by the Administrator to control noise pollution must be consistent with the 'highest degree of safety.' 49 U.S.C. § 1431(d) (3). The interdependence of these factors requires a uniform and exclusive system of federal regulation if the congressional objectives underlying the Federal Aviation Act are to be fulfilled." Id. at 638-39.

The Mitchells contend that the preemption found in Burbank extends to private nuisance actions against airport owners and that they can not be held liable in the absence of evidence that the airport was operating in violation of federal law. We conclude that their reliance on Burbank is misplaced. While the decision speaks in broad terms of the preemption of any state or local control of aircraft noise, the court, in footnote 14 of the opinion, specifically limited its holding to the attempt by a state or local government to regulate aircraft noise through its police power, stating:

"But, we are concerned here not with an ordinance imposed by the City of Burbank as 'proprietor' of the airport, but with the exercise of police power. While the Hollywood-Burbank Airport may be the only major airport which is privately owned, many airports are owned by one municipality yet physically located in another. For example, the principal airport serving Cincinnati is located in Kentucky. Thus, authority that a municipality may have as a landlord is not necessarily congruent with its police power. We do not consider here what limits, if any, apply to a municipality as a proprietor." (Emphasis supplied.) 411 U.S. at 636, n 14.

After an intensive examination of the legislative history of the amended Act, the court drew a careful distinction between the police power of a local government and the proprietorial powers of an airport owner. The extent of the proprietor's power to regulate aircraft noise was expressly not decided in Burbank. Thus we must independently examine the legislative history of the aviation noise abatement amendments to the Act to determine if Congress intended to preempt nuisance actions against an airport proprietor.

The Federal Aviation Act, which describes the federal government's powers and duties with respect to air commerce, was originally enacted in 1958. The Act declared that the United States of America possessed and exercised complete national sovereignty in the airspace of the United States, sec. 1508(a), *fn2 and the FAA was given broad authority to promulgate regulations governing the use of navigable airspace to provide for the safety of aircraft and persons and property on the ground, and to effect the efficient use of the airspace, sec. 1348. As originally enacted, the Act contained no provision specifically dealing with the regulation of aircraft noise.

The Act was amended in 1968 to add sec. 1431, which authorized and required the Administrator of the FAA to prescribe rules and regulations to control and abate aircraft noise "n order to afford present and future relief and protection to the public from unnecessary aircraft noise. . . ." *fn3 The Senate Report filed by the commerce committee concurred in the views set forth by then Secretary of Transportation Boyd as to whether the proposed amendment would "'to any degree preempt State and local government regulation of aircraft noise and sonic boom.'" Burbank, 411 U.S. at 635.

The letter as quoted by the Burbank court stated:

"'The courts have held that the Federal Government presently preempts the field of noise regulation insofar as it involves controlling the flight of aircraft . . . . H.R. 3400 would merely expand the Federal Government's role in a field already preempted. It would not change this preemption. State and local governments will remain unable to use their ...

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