(concurring).
I think the reason my brethren and I disagree in our view of this case lies in this:
The majority recognizes that the flights of the B-36’s over plaintiffs’ dwelling did interfere with plaintiffs’ use and enjoyment of it. The court finds as a fact:
“* * * After November 1951 the value of the property was diminished (by an amount not shown by the record) by the low flights of B-36 bombers over it. The highest and best use of the property as wheat acreage, and its value therefor, remained the same, but its usefulness for residential purposes was reduced.
“In March 1957, before the commencement of flights by B-52 and KC-135 jet aircraft, the highest and best use of plaintiffs’ premises was still for agricultural purposes with some residual value of the improvements thereon for residential purposes in connection with the operation of an owner-occupied farm.”
If that is true, then there was a taking at that time of an easement of flight over plaintiffs’ property at the lowest altitude at which these planes were accustomed to fly. This is the holding of the Supreme Court in Portsmouth Harbor Land & Hotel Co. v. United States, 260 U.S. 327, 43 S.Ct. 135, 67 L.Ed. 287, and in United States v. Causby, 328 U.S. 256, 66 S.Ct. 1062, 90 L.Ed. 1206. See also Highland Park, Inc. v. United States, 161 F.Supp. 597, 142 Ct.Cl. 269.
In the Causby case the Supreme Court, after having said that the United States conceded that if the flights over plaintiffs’ property rendered it uninhabitable *935there would be a taking, said [328 U.S. 256, 66 S.Ct. 1066]:
“There is no material difference between the supposed case and the present one, except that here enjoyment and use of the land are not completely destroyed. But that does not seem to us to be controlling. The path of glide for airplanes might reduce a valuable factory site to grazing land, an orchard to a vegetable patch, a residential section to a wheat field. Some value would remain. But the use of the airspace immediately above the land would limit the utility of the land and cause a diminution in its value. That was the philosophy of Portsmouth Harbor Land & Hotel Co. v. United States, 260 U.S. 327, 43 S.Ct. 135, 67 L.Ed. 287. In that case the petition alleged that the United States erected a fort on nearby land, established a battery and a fire control station there, and fired guns over petitioner’s land. The Court, speaking through Mr. Justice Holmes, reversed the Court of Claims, which dismissed the petition on a demurrer, holding that ‘the specific facts set forth would warrant a finding that a servitude has been imposed.’ 260 U.S. at page 330, 43 S.Ct. at page 137, 67 L.Ed. 287. And see Delta Air Corp. v. Kersey, 193 Ga. 862, 20 S.E.2d 245, 140 A.L.R. 1352. Cf. United States v. 357.25 Acres of Land, D.C., 55 F.Supp. 461.”
The majority says this was a partial taking and that another taking took place when the all-jet B-52 planes began flying over the property in 1957. This is the point of departure between them and me.
When defendant began flying planes over plaintiffs’ dwelling at an altitude and of a character that interfered with plaintiffs’ use and enjoyment of it to an extent sufficient to diminish the value thereof, it thereby took an easement of flight, not only for planes of the character it was then using, but for any character of planes it might use in the future. See Wilson v. United States, Ct.Cl. No. 114-57, decided November 2, 1960.
Here there was no grant of an easement; defendant took an easement. It asserted the right under its power of eminent domain to invade plaintiffs’ property to an extent sufficient to interfere with plaintiffs’ use and enjoyment of it. But is it to be supposed that the assertion of this right was limited to the use of the B-36’s which defendant was then using? Considering the constant advance in aviation, and in particular the constant improvement in military planes, is it not to be presumed that defendant then asserted the right to fly planes of any character over plaintiffs’ property? If so, defendant then took an easement of flight for planes of any sort. When easements of flight have been taken heretofore, this court has never confined the easement to a particular type of plane, but has said that it covered planes of all types. See Finding 1 in Causby v. United States, 75 F.Supp. 262, 109 Ct.Cl. 768, 769 (on remand from the Supreme Court); Wilson v. United States, supra. Cf. Matson v. United States, 171 F.Supp. 283, 145 Ct.Cl. 225, No. 268-56, decided March 4, 1959.
It is true that there was then no positive evidence of such an intention, but, unless we indulge the presumption suggested, plaintiffs would be required to bring a suit as soon as the first interference occurred; then, when it increased, to bring another one, and so on until their property was completely destroyed. It seems to me that plaintiffs were entitled to wait in order to ascertain to what extent defendant’s activities would interfere with their use and enjoyment of their property and then to sue for the entire reduction in value. United States v. Dickinson, 331 U.S. 745, 67 S.Ct. 1382, 91 L.Ed. 1789; Klein v. United States, Ct.Cl. No. 157-58, decided January 18, 1961, cert. denied 366 U.S. 936, 81 S.Ct. 1661, 6 L.Ed.2d 847.
Flights of planes that do not depreciate the value of one’s property are not *936compensable; hence, in Highland Park, Inc., v. United States, supra, we held a taking did not occur until the advent of the jets, which first depreciated its value; but here a taking had occurred before the all-jets arrived. The question here is the extent of that taking. I think plaintiffs had a right to wait to ascertain the extent, and then to bring their suit.
The flights of the B-36’s and the flights of the B-52’s were párts of a continuous course of conduct, for which plaintiffs are required to bring but one action.
However, plaintiffs do not ask compensation for the decrease in value caused by the B-36’s, and, hence, I concur in the result reached by the majority.