712
THE GREEN BAG
v. Transatlantic & Pacific Airship Co., 24 South Texas 63, Kanmore v. U. S. & Philip pine Aerial Ass. 76 Honolulu 25. However, as in most instances, the U. S. courts had jurisdiction because the air companies were foreign corporations, these decisions of the state courts offered no diffi culty, and we find that in the spring of 1939 practically every aircraft line of importance was tied up by injunction and in many instances its officers and employees were confined in federal jails for contempt. It looked for a time as if the air companies would have to go out of business or make terms with the railroad. But the air com panies saw relief in sight if the power of eminent domain was conferred upon them. The battle was transferred to the legisla tures, public sentiment being with the air craft companies forced the governors of each state to call the legislature in extra session, and in less than two months after the decision was announced the legislatures of 66 states had promptly passed acts grant ing to air lines the right of eminent domain. This relief was at once utilized and when ever an injunction was in force to prevent the operation of airships condemnation pro ceedings were resorted to and of course the injunction became inoperative. The value of the property right taken was in most cases found to be nominal. The procedure was not so costly to the aerial companies as their defense to the actions of trespass since one suit forever disposed of a land owner and effectually put a quietus upon litigation either by trespass or injunc tion, while there was practically no limit to the number of actions of trespass a land owner might bring. Nevertheless costs in condemnation suits under the common form of assessment of damages by commissioner; with an appeal to a jury in every case the costs of which had to be borne by the con demning company, proved burdensome. To avoid this expensive procedure, the air companies induced Congress to pass in 1940, what was known as the Corbin Composite Condemnation Act. Briefly this law pro
vided that any company operating aerial craft and engaged in interstate commerce could file in any United States Circuit Court a proposed route not more than ten miles in width, giving the name of all the underlying property owners and upon paying into court the sum of one cent on account of the damage to each of said property owners the right to use said route would at once vest in the com pany and all actions legal or equitable by the property owner should be forever barred. The effect of this law would have been to put an end to all legal and equitable pro ceedings against the aerial companies and relieve them from the necessity of exercising the right of eminent domain against each property owner. Its constitutionality, how ever, was vigorously attacked in the courts. The test case was Thompson v. National Fast Air Line, 832 U. S. 512, in which it was finally held by a divided court of twelve to eleven that the Corbin Act was unconsti tutional, since it deprived a property owner of his property without due process of law. This decision, however, was not handed down until 1944, and as at that time the railroads had gone out of existence its prac tical effect was nil. With the collapse of the railroads, suits by property owners ceased. There no longer was any induce ment to engage in expensive litigation to protect theoretical rights and to recover nominal damages. We find a few cases reported as late as 1949, but none after that year, and I have not been able to find a single decision of any of the questions here discussed during the last 25 years. It is truly a closed chapter of aeritime law, a chapter of the greatest importance to the lawyer of the thirty-five years ago, and interesting to-day to the student of the common law because it presents a situation in which the protection of a merely theoret ical legal right was resorted to as the means of destroying the practical value of the greatest invention in the history of the world. St. Louis, Mo., November, 1907.
