The Hammers use a portion of their 291 acres for flying gas-powered remote controlled planes four to five days per week. In addition, Mr. Hammer, who built two runways for the remote controlled planes, hosts two annual weekend flying events attracting hundreds of enthusiasts. The Aviation Cadet Museum (ACM), a museum commemorating military aviators and located on 73 acres, operates a privately held public access airport on its land, and the take offs and landings from this airport pass directly through airspace over the Hammer’s property. At the time the ACM was established, it was aware of the use taking place on the Hammer property. ACM received a letter from the FAA indicating no objection to their proposed use of the property for an airport runway, but they indicated that such determination did not preempt nor waive an local ordinances, including zoning. The South end of the ACM runway is approximately 500 feet from the north edge of Hammer’s flying area for the radio controlled planes, and the ACM runway has no lights delineating a field and no navigation system. The Hammers filed suit to enjoin the ACM form using its property as an airport alleging that the use constitutes a nuisance and violates their surface rights to the enjoyment of their property. They later amended their complaint to include a claim of common-law trespass. ACM counterclaimed for nuisance claiming that the radio controlled planes were hazardous to pilots attempting to land full-scale planes at its airport. ACM sought to enjoin the Hammers from flying radio controlled planes on their land in the flight path of ACM’s airport.
The Circuit Court found that ACM’s airfield was a nuisance and issued an injunction to prevent ACM from allowing planes to depart and land therefrom until such time, if any, that it can demonstrate to the court that it could operate in a manner that did not constitute a nuisance and would not trespass on the Hammer property. ACM appealed, arguing that with only 24 take-offs and landings per year, the use of its property as an airport was not a nuisance.
The Arkansas Supreme Court, reviewed the testimony in the record which the Circuit Court relied on, demonstrating that the use of the ACM airfield was dangerous not just to the Hammer’s property and the remote controlled plane operators (as well as the pilots of the full scale planes), but with respect to a public road that planes flew over at dangerously low altitudes, and that nearby residents complained of the noise from the planes using the ACM airport. The Supreme Court said that “the planes flew at an altitude low enough to interfere with the then-existing use of the Hammers’ property and posed a danger to the persons on the land beneath. Such flight amounted to a nuisance.” Therefore, the circuit court did not abuse its discretion in issuing an injunction enjoining ACM from using its airfield for allowing planes to land and depart therefrom.
Aviation Cadet Museum, Inc. v. Hammer, 2008 WL 1747086 (Ark. 4/17/2008).
The opinion can be accessed at: http://courts.arkansas.gov/opinions/2008a/20080417/07-830.pdf
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