(concurring specially) — I can concur with the result of the majority opinion, but solely on the ground that where one maintains an instrumentality that is potentially dangerous, and can reasonably anticipate harm to trespassers who are not aware of the dangers, there is a duty to give adequate warning. Clark v. Longview Public Service Co. (1927), 143 Wash. 319, 255 Pac. 380; Talkington v. Washington Water Power Co. (1917), 96 Wash. 386, 165 Pac. 87; 99 Wash. 695, 169 Pac. 596.
The complaint alleges that the defendant companies knew their power and telephone lines were in the path of the approach to the airfield, and that the lines and poles were, by reason of color and background, not visible to approaching planes. It alleges further that markers, which could have alerted the pilot of an approaching plane of the danger represented by the presence of the defendants’ lines and poles, were available and standard. These devices, not having been installed by the airport proprietors who, the majority opinion points out, had the primary obligation to warn of hazards in the approach to their landing field, the defendant companies had what is referred to as a secondary duty: to warn incoming aircraft of the hazard represented by their lines. Whether the defendants were negligent in failing to perform that duty, and whether the occupants of the plane were contributorily negligent, were jury questions.
*825I cannot agree with what is said in the majority opinion regarding the “right” of the plane to be where it was and the absence of any trespass.
No one contends that Congress cannot control and regulate the use of the navigable airspace, but I do not concede that an act of the Congress can make all airspace “ ‘needed to insure safety in take-off and landing of aircraft,’ ” a public highway without regard to its present uses. Ackerman v. Port of Seattle (1960), 55 Wn. (2d) 400, 348 P. (2d) 664. Congress cannot appropriate, by fiat, the immediate reaches above the land (so much space above the ground as the owner can occupy or use in connection therewith) without compensation; nor can it, by fiat, appropriate the property rights of the defendants however they may be technically denominated. They were not owners of the fee in the land under their lines, but their poles stood in that land and their lines were lawfully placed in the immediate reaches above it. Whether it be called an easement, a franchise, or something else, they had a right not to have their poles and lines damaged or destroyed by someone trying to fly through them.
I do not question the rights of the owners of municipal airports to condemn such an obstruction; nor do I question the right of the owner of land to maintain an action for constitutional taking by reason of low flying planes. See Ackerman v. Port of Seattle, supra.
Here we are concerned with property rights which have not been condemned or taken — the lawful right to maintain power and telephone lines. It avails nothing to point out that defendants’ property rights ended at the top of their poles and lines, when the action is brought because somebody was flying lower than the top of their poles and lines.
If the plane’s collision with their lines be no trespass, for some technical reason which I am unable to grasp, it was clearly an invasion of their right to maintain their lines where they were. See Kempf v. Spokane & Inland Empire R. Co. (1914), 82 Wash. 263, 144 Pac. 77, L. R. A.
*8261915C 405; Kedziora v. Washington Water Power Co. (1937), 193 Wash. 51, 74 P. (2d) 898.
Weaver, C. J., concurs with Hill, J.December 15, 1960. Petition for rehearing denied.