## Facts

- The Port of Portland owned and operated Portland International Airport and had acquired surrounding land by eminent domain, but not the plaintiffs’ property.
- Plaintiffs were residential landowners living near the airport: about 6,000 feet beyond one runway end under its glide path, and about 1,500 feet beyond a second runway end and roughly 1,000 feet lateral to that runway’s glide path.
- With increased jet traffic, plaintiffs claimed aircraft noise made their property effectively unusable for residential purposes.
- Some aircraft passed directly over plaintiffs’ land, but plaintiffs asserted the loudest noise came largely from jet flights not predominantly directly overhead.
- Plaintiffs sued for inverse condemnation, alleging airport-related operations caused a compensable taking under the Oregon Constitution.
- A jury returned a verdict for the Port, necessarily finding no taking.
- At trial, the court limited evidence about interference from flights near but not directly above plaintiffs’ land and instructed the jury in a manner that effectively tied liability to intrusion into a defined column of airspace and a fixed “500-foot” approach.

## Issues

1. Whether severe, frequent aircraft noise associated with a public airport can constitute a compensable taking through substantial interference with use and enjoyment of land, even without a physical intrusion into a precisely bounded airspace above the property.
2. Whether the trial court erred by (a) effectively adopting a rigid “500-foot rule” and a geometric “cube-of-airspace” trespass model, and (b) excluding evidence of disturbance from aircraft flying near, but not directly over, the plaintiffs’ land.

## Decision

- The Oregon Supreme Court reversed and remanded for a new trial.
- The court held that a nuisance-like invasion (including aircraft noise) can constitute a taking if it is so substantial that it effectively ousts the owner from beneficial use and enjoyment.
- The court held the existence of a taking by aircraft noise is a factual question for the jury based on the totality of interference.
- The court rejected a categorical rule that flights above a fixed altitude (such as 500 feet) or outside a geometrically defined airspace cannot be compensable.
- The court concluded the challenged instructions and evidentiary limitations improperly narrowed the jury’s inquiry and could have affected the verdict.

## Legal Principles

- Property rights affected by aircraft operations are not determined solely by an abstract, fixed-height geometric column of airspace.
- Government-caused interference with land use and enjoyment may be a compensable taking when the interference is sufficiently substantial, even absent a classic physical trespass.
- Whether interference from airport operations rises to the level of a constitutional taking is ordinarily a fact question for the jury, considering frequency, intensity, proximity, and practical effect on use.
- Altitude-based “safe harbor” rules are not dispositive; the proper inquiry centers on substantial interference and its consequences for beneficial enjoyment.
- In assessing whether interference constitutes a taking, the factfinder may weigh the gravity of harm to the owner against the social utility of the public activity.

## Conclusion

The court ordered a new trial because the jury was improperly directed to focus on a rigid altitude/trespass framework and was not allowed to fully consider whether the cumulative noise and disturbance from airport operations—including nearby jet flights—substantially interfered with plaintiffs’ property so as to amount to a compensable taking.


Thornburg v. Port of Portland, 376 P.2d 100 (Or. 1962)