Im sure this case will get settled out of court before it goes any further but I'm thinking the Nordstrom Building owners have a legitimate case for the Airspace trespass. Anyone have any Airspace court cases that state the opposite?
Owners sue for Trespassing Tower Crain over airspace - OR
"The suit contends the crane's arm -- or jib as it's also called -- intrudes upon Nordstrom's airspace and is asking the court for damages, costs and a ruling that forces TMT to operate and maintain the crane in such a way that it no longer trespasses.
Interestingly, experts say, that swing is exactly what makes a tower crane safer."
According to this article......
http://www.bizjournals.com/portland/news/2011/07/12/nordstrom-landlord-sues-over-crane.html
......the site has been shut down since March 2009. There's no reason to leave that crane up over two years at a shut-down site.
There's such a thing called "demobilization", and that's what needs to happen here. Of course, that costs $$$$.
But I'd be willing to bet that if proper safety checks, maintenance, etc., etc., has been going on all along, it would have been cheaper take the crane down. Erection of a crane that size could cost between $20K and $60K, and would take a couple of days to take down, at roughly the same cost.
The Portland Bulding Department, or whatever it's called, needs to get off their duffs and do their job.
Kind of a similar story here in Riverside which ultimately resulted in the crane coming down.
http://www.pe.com/business/local/stories/PE_News_Local_D_crane05.25fec7b.html
The crane was being used on a project adjacent to the 91 freeway in downtown Riverside and would often encroach over Caltrans R/W and they did not have an encroachment permit and Caltrans would not grant them one.
I can understand the claim for costs (attorney's fees) to get the crane removed, but I wonder what the "damages" might be?
Emotional due to the arm swinging over their building?
One instance of damages might be potential customers who are afraid to walk or drive down that street to come into the store.
We had two major crane collapses in a short period here in NYC back in 2008, and aside from the loss of lives, they caused plenty of havoc for the surrounding merchants and residents.
I always thought that airspace was public domain until a claim was made on it. If no claim and the crane was occupying the space first then it would seem to be suit happy lawyers and owners cluttering up the court system unless the airspace was claimed and that claim was in the public records long before the crane was erected. Subject to damages by the crane operator would be legitimate but anything more should be just sucked up by those with a right and opportunity to claim airspace and failed to do so. The courts and government are not in place to provide security from cradle to grave, personal responsibility is the method of security that has served mankind the best down through the ages. Always be winners and losers, that's life.
jud
I wonder how they quantify the damages? As I understand it the practice, damages must be real and not imagined...
I understand the concern of course, jeez crane collapses make the news when they happen. And there might be a real fear for the employees and potentially the customers.
I'm thinking it wouldn't be too hard to show a fall-off in patronage and claim it's based upon the crane.
There could be other things as well....increased insurance costs, problems from safety inspections, OSHA etc., etc., not to mention actual damage, such as debris or fluids falling from the crane itself. Even ice forming during winter storms could become a hazard and liability.
An additional read citing some court cases.
All air space is not strictly "public domain".
We have always had air space rights (i.e., the Latin phrase Cuius est solum, eius est usque ad caelum et ad inferos ("For whoever owns the soil, it is theirs up to Heaven and down to Hell"), just as we have always had subsurface rights, riparian rights or littoral rights. Technologically, they didn't mean a whole lot, until we developed the ability to build taller buildings, which led to a more formalized concept of air rights. Of course, soon after, the invention of air travel greatly curtailed the broadness of that concept.
While the Federal Government does control airspace, there are limits. In 1926 the U.S. Congress passed the Air Commerce Act, which stated that the "navigable air space" of the U.S. was similar to a public highway, open to all users. Navigable air space was defined as the sky above "the minimum safe altitudes of flight" as determined by federal regulators — typically 500 to 1,000 feet above the ground. But, in cities with tall buildings, the altitude may be a different number.
In 1946, the Supreme Court ruled that a property owner "if the landowner is to have full enjoyment of the land, he must have exclusive control of the immediate reaches of the enveloping atmosphere. Otherwise buildings could not be erected, trees could not be planted, and even fences could not be run....[the property owner] owns at least as much of the space above the ground as he can occupy or use in connection with the land," and invasions of that airspace "are in the same category as invasions of the surface." (U.S. v. Causby, 1946)
This is particularly important in urban settings, where skyscrapers can be as high as 1500 feet or more (Tower One at the World Trade Center is going to be 1776 feet to the top of it's spire...I've been up there when helicopters and small planes were flying LOWER than where I was standing.).
Major land transactions often include air rights, which can cost a ton of money. Often, the development of a large project in a city will hinge not on the value of the land, but the value of the air rights. One example is the Met Life (formerly Pan Am) Building, which was erected adjacent to and over the subsurface tracks and platforms at Grand Central Station in New York City. The sale of the air rights staved off bankruptcy for the New York Central Railroad for several years.
