## Facts

- Bernard, Inc. operated a small, noncommercial airport with a roughly 2,500-foot runway, in operation since 1918.
- After 1948, a residential subdivision (Cedar Hills) was developed north of the airport; about 68 homeowners later sued.
- The closest homes were about 1,000 feet north of the runway; other plaintiffs lived farther north within the area affected by operations.
- With fair-weather winds commonly from the north, many takeoffs were directed northward, producing frequent overflights over the neighborhood, including early Sunday morning flights.
- Plaintiffs alleged aircraft often passed 50–300 feet above rooftops, creating noise and vibration that substantially interfered with residential use and posed hazards.
- The airport disputed the asserted low altitudes and maintained that flights were conducted carefully and lawfully.

## Issues

1. Whether the airport’s flight operations over plaintiffs’ properties constituted a private nuisance by substantially and unreasonably interfering with use and enjoyment of land.
2. Whether injunctive relief was appropriate, and if so, whether it should restrict all overflights or only certain low or patterned flights.
3. How equity should balance a long-established airport’s operations against later residential development in the affected flight path.

## Decision

- The Oregon Supreme Court held that the airport’s operations constituted a nuisance to the extent aircraft made frequent, low overflights causing substantial interference with plaintiffs’ use and enjoyment of their homes.
- The court rejected an absolute remedy closing the airport or prohibiting all relevant flights, and instead required a qualified injunction directed at the nuisance-producing manner of operation.
- The court modified the trial court’s decree to tailor restrictions to reduce low, direct overflights (including by requiring higher altitudes and altered patterns when practicable) while allowing continued airport operations.
- Disposition: modified and remanded.

## Legal Principles

- A private nuisance exists when conduct causes a substantial and unreasonable interference with another’s use and enjoyment of land; aircraft noise, vibration, and low hazardous overflights can meet that standard.
- Compliance with aviation regulations and careful operation does not necessarily bar nuisance relief where the practical effect of operations substantially interferes with neighboring property.
- Injunction is an available remedy for nuisance, but equitable relief should be confined to what is reasonably necessary to abate the interference; courts may impose partial or conditional restrictions rather than order cessation of an entire activity.
- “Coming to the nuisance” or priority in time is not a complete defense; it is a factor in assessing reasonableness and shaping equitable relief.

## Conclusion

The court treated frequent, low overflights over nearby residences as an actionable private nuisance and approved injunctive relief, but required that the decree be narrowly drawn to curb the nuisance-causing flight practices while permitting the airport to continue operating under reasonable operational limits.


Atkinson v. Bernard, Inc., 223 Or. 624, 355 P.2d 229 (Or. 1960)