dissenting.
According to the Aeronautics Commission of Indiana Law, Ind.Code § 8-21 — 1-1, et seq., jurisdiction over persons and property involved in aeronautics is vested in the Aeronautics Commission of Indiana. That Commission governs and regulates the “design, construction, extension, operation, improvement, repair, or maintenance of airports, landing fields and other air navigation facilities.. . . ” Ind.Code § 8 — 21—1— 1(a). An airport is “any location either on land or water which is used for the landing and taking off of aircraft.” Ind.Code § 8-21 — 1—1(b). An air navigation facility subject to the jurisdiction of the Commission includes airports and “any structures, mechanisms, lights, beacons, marks, communicating systems, or other instrumentalities or devices used or useful as an aid or constituting an advantage or convenience, to the safe taking off, navigation, and landing of aircraft....” Ind.Code § 8-21-l-l(i).
In order to exercise its jurisdiction effectively the Aeronautics Commission was given authority to regulate the use of navigable airspace including approach zones to public use airports. Public use airports are areas of land or water “designed and set aside for the taking off and landing of aircraft....” In the case before us Hap’s Airport was a public use airport and all aeronautical facilities on it including its runway, as well as the approach zones to it through the air were subject to the control and regulation of the Aeronautics Commission to the end that they be “maintained in a reasonably unobstructed condition for safe flight of aircraft and the comfort and safety of the citizens of the state.” Ind. Code § 8-21-7-2. The highway construction plan of the Highway Commission called *625for the erection of an overpass which would invade the approach zone to Hap’s Airport. It constructed that overpass into this regulated airspace after paying the airport owner some $15,000 in damages, but without procuring the permit required by Ind.Code § 8 — 21—7—3, from the Aeronautics Commission. Hap’s Airport continued to use the runway in its existing location and length, and appellee’s decedent in landing there flew into a truck being driven over the overpass.
In my view, the rights acquired by the State Highway Commission from the airport owner did not relieve it of the responsibility to acquire the permit required by law, because that acquisition did not satisfy the purposes to be served by that requirement. The Aeronautics Commission was vested with jurisdiction over the design, use, and alteration of the existing runway at Hap’s Airport. The Highway Commission had no such jurisdiction. If the permit had been sought, the jurisdiction of the Aeronautics Commission with its expertise, special knowledge, and regulatory powers would have been invoked, to the end that any duties and responsibilities of either the Highway Commission or the airport resulting from the decision of the Aeronautics Commission upon the permit application would have been enforced. The acquisition of rights by the highway department in return for the payment of damages resolved the differences between the Highway Commission and the airport owner, but left the “persons and property in the air and on the ground” using the approach zone without the protections intended to be provided by the permit procedures. The permit requirement for the construction of structures impinging upon regulated airspace was applicable to the highway department, and continued to be so applicable after it acquired the interests of the airport owner. I am in accord with the trial court and the Court of Appeals and vote to affirm the judgment.