The Law of Noise

In a day of screeching jets, diesel trucks, transistor radios, air hammers and outboard motors, how can a man tell the world to shut up? He can try by suing for damages or asking the courts for an injunction, but he can hardly expect silence. Having coped with human din ever since people first huddled in towns, the law is well aware that one man's noise is another man's music.

Because annoyance is subjective, says Manhattan Lawyer George A. Spater in the Michigan Law Review, courts usually insist on tangible harm before they do anything about noise. Typically, the plaintiff recovers only if noise decreases the value of his property. Recovery for personal injury is rare, says Spater; recovery because of mere sensitivity to noise is impossible.

Although courts readily enjoin deliberately noisy neighbors, loud dance halls and amusement parks, "serious" business is another matter. Unless caused by poor design, for example, ordinary industrial noise is protected on the ground that silencing it would cause undue losses. Even though the test is what a person of "ordinary sensibilities" can tolerate, the law does not automatically protect those who choose to live beside sources of foreseeable noise, however annoying.

Legal Nuisance. Spater notes that governmental noisemakers such as the Air Force are even freer to deafen their neighbors. For one thing, neither federal nor local government can be sued unless it consents. Some state laws specify that no activity called for by statute "can be deemed a nuisance." And while the U.S. Constitution (Fifth Amendment) guarantees just compensation for private property taken for public use, says Spater, "taken" means invaded by physical action--not mere noise.

The same rule holds for public utilities, railroads, or airlines that operate under Government authority and are not guilty of negligence. No one can sue a railroad simply because he is being driven to distraction by the passage of 100-car freight trains. His property must actually be "taken"--a rule that the Supreme Court applied to aircraft in the 1946 case (U.S. v. Causby) of a chicken farmer who was driven off his land by military planes flying as low as 67 ft. above his house near Greensboro, N.C. The court upheld Causby because the physical invasion of his "super-adjacent airspace" made his land uninhabitable. The noise, in fact, so frightened his chickens that 150 of them flew into the nearest walls and were killed. Only after the invasion occurred was Causby allowed to recover $375 for his chickens.

In another case, the court in 1963 refused to review a decision denying recovery to landowners who did not live directly under the path of noisy aircraft. According to that decision (Batten v. U.S.), the Government is not liable for "noise, vibration or smoke without a physical invasion."

New Doctrine. Lawyer Spater argues that Causby and Batten should continue to be controlling decisions in the coming age of "sonic booms" caused by aircraft operating at supersonic speed.

As he sees it, sonic booms cause ground damage only when supersonic aircraft negligently accelerate at low altitudes.

In that case, he says, property owners may properly claim invasion. But "no recovery will be allowed for the mere annoyance caused by sonic booms, even though the annoyance may be severe enough to occasion a decline in property values."

Spater has good reason to urge courts to hold that line. Though his fascinating and well-documented article does not disclose it, he is general counsel of American Airlines.* He is understandably fretful and concerned about two recent state court decisions in Oregon and Washington, flatly holding that airway noise is compensable even though the plaintiff's airspace is not violated.

Spater calls those decisions "a grave abuse of judicial power." According to other air lawyers, however, the Supreme Court may eventually embrace the new doctrine that appears to treat noise alone as damaging, even without a physical invasion.

*In the current University of Washington Law Review, Supreme Court Justice William O. Douglas chides U.S. law reviews for not identifying "special pleaders who fail to disclose that they are not scholars but rather people with axes to grind." Douglas proposes "an editorial policy that puts in footnote No. 1 the relevant affiliations of the author."

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