(dissenting).
It is agreed that subsequent to the establishment of the homes of these plaintiffs, the Government constructed these runways and warm-up pads nearby, for Jet Engine operation, and that, as a direct result of this operation, the “plaintiffs have suffered a substantial interference of the use and enjoyment of their properties * * with consequent substantial diminution of the values of such properties. It seems also agreed that the right asserted, i. e., the peaceful *586enjoyment of their homes, is a constitutionally protected property right, and that the admitted injury to such right is peculiar to these plaintiffs, who are similarly situated. In any event, “the constitutional provision is addressed to every sort of interest the citizen may possess,” (see United States v. General Motors, 323 U.S. 373, 65 S.Ct. 357, 89 L.Ed. 311) and certainly includes the right to the peaceful possession of residential property. The economic interest asserted here, is no different from that “taken” in Causby and Griggs.
Both the trial Court and this Court have denied compensation, upon the premise that an actual physical invasion of the property damaged is a sine qua non to a constitutional taking, and the injury is, therefore, merely consequential; hence, not constitutionally compensable. It is my thesis that a constitutional taking does not necessarily depend on whether the Government physically invaded the property damaged.
It is true that, in the very nature of things, most constitutional takings are accompanied by actual physical invasion. See Transportation Company v. Chicago, 99 U.S. 635, 25 L.Ed. 336; Pennsylvania Coal Co. v. Mahon, 260 U.S. 393, 43 S.Ct. 158, 67 L.Ed. 322; Portsmouth Harbor Land & Hotel Company et al. v. United States, 260 U.S. 327, 43 S.Ct. 135, 67 L.Ed. 287; United States v. General Motors, supra; United States v. Causby, 328 U.S. 256, 66 S.Ct. 1062, 90 L.Ed. 1206; United States v. Dickinson, 331 U.S. 745, 67 S.Ct. 1382, 91 L.Ed. 1789; United States v. Kansas City Life Insurance Co., 339 U.S. 799, 70 S.Ct. 885, 94 L.Ed. 1277; Griggs v. Allegheny County, 369 U.S. 84, 82 S.Ct. 531, 7 L.Ed. 2d 585; and, Nunnally v. United States, 4 Cir., 239 F.2d 521. But, the Government may surely accomplish by indirect interference, the equivalent of an outright physical invasion. “If regulation goes too far it will be recognized as a taking.” Pennsylvania Coal Co. v. Mahon, supra, 260 U.S. p. 415, 43 S.Ct. p. 160. Thus, a “taking” was effected in Armstrong v. United States, 364 U.S. 40, 80 S.Ct. 1563, 4 L.Ed.2d 1554, by the destruction of the liens on property through governmental acquisition of title. The closing of a gold mine, by force of a wartime governmental regulation, without physical invasion was held not to be a constitutional taking in United States v. Central Eureka Mining Co., 357 U.S. 155, 78 S.Ct. 1097, 2 L.Ed.2d 1228, but not without recognizing that “action in the form of regulation can so diminish the value of property as to constitute a taking.” There was forceful argument in dissent to the effect that to make the property owner’s right to compensation turn on the physical act of taking, was to “permit technicalities of form to dictate consequences of substance.” (See Mr. Justice Harlan’s dissent, p. 181, 78 S.Ct. p. 1110.) It is admitted that the compensable damage in Richards v. Washington Terminal, 233 U.S. 546, 34 S.Ct. 654, 58 L.Ed. 1088, was not accompanied by an actual invasion, though the case is said to have been decided on the invasion theory. The facts and reasoning there are analogous to our situation, and serve to prove the recognition of a constitutional taking by indirect interference. The principal is analogous to trespass and nuisance. See cases collected in Harvard Law Review, June 1961 p. 1581.
As I view the precedents, especially in the context of their contrariety, the de-cisional process involves an analysis and evaluation of competing interests, i. e., the public versus private, within the framework of our social order — a jurisprudence of interest, if you please, in which the State imposes its will, subject only to the constitutional covenant that it will pay “just compensation” for “private property” which is “taken.” The critical and definitive words are, to be sure, constitutional language which, as we know, are subject to formulations, depending upon a point of view. We start with the agreed proposition that not every governmental interference, which adversely affects a private economic interest, amounts to a constitutional taking. See United States v. Willow River Power Co., 324 *587U.S. 499, 65 S.Ct. 761, 89 L.Ed. 1101; Armstrong v. United States, supra; and, Nunnally v. United States, supra. “Frustration and appropriation are essentially different things.” Omnia Company v. United States, 261 U.S. 502, 43 S.Ct. 437, 67 L.Ed. 773. As I reason, the constitutional test in each case is first, whether the asserted interest is one which the law will protect; if so, whether the interference is sufficiently direct, sufficiently peculiar, and of sufficient magnitude to cause us to conclude that fairness and justice, as between the State and the citizen, requires the burden imposed to be borne by the public and not by the individual alone.
Indeed, my brothers impliedly embrace this theory when they indicate that if the governmental interference in this case had rendered the plaintiffs’ homes totally uninhabitable, the damages would have been compensable, as for a constitutional taking. But, they then say, that since there is “nothing, more than an interference with use and enjoyment” of the property, the admitted damages are merely “consequential.” This leaves me in doubt as to whether compensation is denied because the interest asserted is not one which the law will protect, as in United States v. Willow River Power Co., supra, or whether the interference with a protectable property right was not sufficiently direct, peculiar and grave to justify a conclusion of “taking.” If the decision is based on the latter premise, I must inquire at what point the interference rises to the dignity of a “taking?” Is it when the window glass rattles, or when it falls out; when the smoke suffocates the inhabitants, or merely makes them cough; when the noise makes family conversation difficult, or when it stifles it entirely? In other words, does the “taking” occur when the property interest is totally destroyed, or when it is substantially diminished ?
My point of view leads me to conclude, contrary to my brothers, that the interference shown here was sufficiently substantial, direct and peculiar to impose a servitude on the plaintiffs’ homes, quite as effectively as the over-flights in Caus-by and Griggs, and the smoke and gases in Richards. I would, therefore, hold the damages constitutionally compen-sable.