U.S. Supreme Court United States v. Causby, 328
U.S. 256 (1946) United States v.
Causby No. 630 Argued May 1, 1946 Decided May 27, 1946 328
U.S. 256 CERTIORARI TO THE COURT OF
CLAIMS Syllabus Respondents owned a dwelling and a chicken farm near a municipal
airport. The safe path of glide to one of the runways of the
airport passed directly over respondents' property at 83 feet,
which was 67 feet above the house, 63 feet above the barn and 18
feet above the highest tree. It was used 4% of the time in taking
off and 7% of the time in landing. The Government leased the use of
the airport for a term of one month commencing June 1, 1942, with a
provision for renewals until June 30, 1967, or six months after the
end of the national emergency, whichever was earlier. Various
military aircraft of the United States used the airport. They
frequently came so close to respondents' property that they barely
missed the tops of trees, the noise was startling, and the glare
from their landing lights lighted the place up brightly at night.
This destroyed the use of the property as a chicken farm and caused
loss of sleep, nervousness, and fright on the part of respondents.
They sued in the Court of Claims to recover for an alleged taking
of their property and for damages to their poultry business. The
Court of Claims found that the Government had taken an easement
over respondents' property, and that the value of the property
destroyed and the easement taken was $2,000; but it made no finding
as to the precise nature or duration of the easement. Held: 1. A servitude has been imposed upon the land for which
respondents are entitled to compensation under the Fifth Amendment.
Pp. 328 U. S.
260 -267.

															(a) The common law doctrine that ownership of land extends to
the periphery of the universe has no place in the modern world. Pp. 328 U. S.
260 -261.

															(b) The air above the minimum safe altitude of flight prescribed
by the Civil Aeronautics Authority is a public highway and part of
the public domain, as declared by Congress in the Air Commerce Act
of 1926, as amended by the Civil Aeronautics Act of 1938. Pp. 328 U. S.
260 -261, 328 U. S.
266 .

															(c) Flights below that altitude are not within the navigable air
space which Congress placed within the public domain, even though
they are within the path of glide approved by the Civil Aeronautics
Authority. Pp. 328 U.S.
263 -264. Page 328 U. S. 257 (d) Flights of aircraft over private land which are so low and
frequent as to be a direct and immediate interference with the
enjoyment and use of the land are as much an appropriation of the
use of the land as a more conventional entry upon it. Pp. 328 U. S.
261 -262, 328 U. S.
264 -267.

															2. Since there was a taking of private property for public use,
the claim was "founded upon the Constitution," within the meaning
of § 141(1) of the Judicial Code, and the Court of Claims had
jurisdiction to hear and determine it. P. 328 U. S.
267 .

															3. Since the court's findings of fact contain no precise
description of the nature or duration of the easement taken, the
judgment is reversed, and the cause is remanded to the Court of
Claims so that it may make the necessary findings. Pp. 328 U. S.
267 -268.

															(a) An accurate description of the easement taken is essential,
since that interest vests in the United States. P. 328 U. S.
267 .

															(b) Findings of fact on every "material issue" are a statutory
requirement, and a deficiency in the findings cannot be rectified
by statements in the opinion. Pp. 328 U. S.
267 -268.

															(c) A conjecture in lieu of a conclusion from evidence would not
be a proper foundation for liability of the United States. P. 328 U. S.
268 .

															104 Ct.Cls. 342, 60 F. Supp. 751, reversed and remanded.

															The Court of Claims granted respondents a judgment for the value
of property destroyed and damage to their property resulting from
the taking of an easement over their property by low-flying
military aircraft of the United States, but failed to include in
its findings of fact a specific description of the nature or
duration of the easement. 104 Ct.Cls. 342, 60 F. Supp. 751. This
Court granted certiorari. 327 U.S. 775. Reversed and
remanded, p. 328 U. S.
268 . Page 328 U. S. 258 MR. JUSTICE DOUGLAS delivered the opinion of the Court.

															This is a case of first impression. The problem presented is
whether respondents' property was taken within the meaning of the
Fifth Amendment by frequent and regular flights of army and navy
aircraft over respondents' land at low altitudes. The Court of
Claims held that there was a taking, and entered judgment for
respondent, one judge dissenting. 60 F. Supp. 751. The case is here
on a petition for a writ of certiorari which we granted because of
the importance of the question presented.

															Respondents own 2.8 acres near an airport outside of Greensboro,
North Carolina. It has on it a dwelling house, and also various
outbuildings which were mainly used for raising chickens. The end
of the airport's northwest-southeast runway is 2,220 feet from
respondents' barn and 2,275 feet from their house. The path of
glide to this runway passes directly over the property -- which is
100 feet wide and 1,200 feet long. The 30 to 1 safe glide angle
[ Footnote 1 ] approved by the
Civil Aeronautics Authority [ Footnote 2 ] passes over this property at 83 feet, which is
67 feet above the house, 63 feet above the barn and 18 feet above
the highest tree. [ Footnote 3 ]
The use by the United States of this airport is pursuant to a lease
executed in May, 1942, for a term commencing June 1, 1942 and
ending June 30, 1942, with a provision for renewals until June 30,
1967, or six Page 328 U. S. 259 months after the end of the national emergency, whichever is the
earlier.

															Various aircraft of the United States use this airport --
bombers, transports, and fighters. The direction of the prevailing
wind determines when a particular runway is used. The
northwest-southeast runway in question is used about four percent
of the time in taking off and about seven percent of the time in
landing. Since the United States began operations in May, 1942, its
four-motored heavy bombers, other planes of the heavier type, and
its fighter planes have frequently passed over respondents' land
buildings in considerable numbers and rather close together. They
come close enough at times to appear barely to miss the tops of the
trees, and at times so close to the tops of the trees as to blow
the old leaves off. The noise is startling. And, at night, the
glare from the planes brightly lights up the place. As a result of
the noise, respondents had to give up their chicken business. As
many as six to ten of their chickens were killed in one day by
flying into the walls from fright. The total chickens lost in that
manner was about 150. Production also fell off. The result was the
destruction of the use of the property as a commercial chicken
farm. Respondents are frequently deprived of their sleep, and the
family has become nervous and frightened. Although there have been
no airplane accidents on respondents' property, there have been
several accidents near the airport and close to respondents' place.
These are the essential facts found by the Court of Claims. On the
basis of these facts, it found that respondents' property had
depreciated in value. It held that the United States had taken an
easement over the property on June 1, 1942, and that the value of
the property destroyed and the easement taken was $2,000. Page 328 U. S. 260 I. The United States relies on the Air Commerce Act of 1926, 44
Stat. 568, 49 U.S.C. § 171 et seq., as amended by the
Civil Aeronautics Act of 1938, 52 Stat. 973, 49 U.S.C. § 401 et
seq. Under those statutes, the United States has "complete and
exclusive national sovereignty in the air space" over this country.
49 U.S.C. § 176(a). They grant any citizen of the United States "a
public right of freedom of transit in air commerce [ Footnote 4 ] through the navigable air space
of the United States." 49 U.S.C. § 403. And "navigable air space"
is defined as "airspace above the minimum safe altitudes of flight
prescribed by the Civil Aeronautics Authority." 49 U.S.C. § 180.
And it is provided that "such navigable airspace shall be subject
to a public right of freedom of interstate and foreign air
navigation." Id. It is therefore argued that, since these
flights were within the minimum safe altitudes of flight which had
been prescribed, they were an exercise of the declared right of
travel through the airspace. The United States concludes that, when
flights are made within the navigable airspace without any physical
invasion of the property of the landowners, there has been no
taking of property. It says that, at most, there was merely
incidental damage occurring as a consequence of authorized air
navigation. It also argues that the landowner does not own
superadjacent airspace which he has not subjected to possession by
the erection of structures or other occupancy. Moreover, it is
argued that, even if the United States took airspace owned by
respondents, no compensable damage was shown. Any damages are said
to be merely consequential for which no compensation may be
obtained under the Fifth Amendment.

															It is ancient doctrine that at common law ownership of the land
extended to the periphery of the universe -- cujus Page 328 U. S. 261 est solum ejus est usque and coelum. [ Footnote 5 ] But that doctrine has no place in
the modern world. The air is a public highway, as Congress has
declared. Were that not true, every transcontinental flight would
subject the operator to countless trespass suits. Common sense
revolts at the idea. To recognize such private claims to the
airspace would clog these highways, seriously interfere with their
control and development in the public interest, and transfer into
private ownership that to which only the public has a just
claim.

															But that general principle does not control the present case.
For the United States conceded on oral argument that, if the
flights over respondents' property rendered it uninhabitable, there
would be a taking compensable under the Fifth Amendment. It is the
owner's loss, not the taker's gain, which is the measure of the
value of the property taken. United States v. Miller, 317 U. S. 369 .
Market value fairly determined is the normal measure of the
recovery. Id. And that value may reflect the use to which
the land could readily be converted, as well as the existing use. United States v. Powelson, 319 U.
S. 266 , 319 U. S. 275 ,
and cases cited. If, by reason of the frequency and altitude of the
flights, respondents could not use this land for any purpose, their
loss would be complete. [ Footnote
6 ] It would be as complete as if the United States had entered
upon the surface of the land and taken exclusive possession of
it.

															We agree that, in those circumstances, there would be a taking.
Though it would be only an easement of flight Page 328 U. S. 262 which was taken, that easement, if permanent and not merely
temporary, normally would be the equivalent of a fee interest. It
would be a definite exercise of complete dominion and control over
the surface of the land. The fact that the planes never touched the
surface would be as irrelevant as the absence in this day of the
feudal livery of seisin on the transfer of real estate. The owner's
right to possess and exploit the land -- that is to say, his
beneficial ownership of it -- would be destroyed. It would not be a
case of incidental damages arising from a legalized nuisance, such
as was involved in Richards v. Washington Terminal Co., 233 U. S. 546 . In
that case, property owners whose lands adjoined a railroad line
were denied recovery for damages resulting from the noise,
vibrations, smoke, and the like, incidental to the operations of
the trains. In the supposed case, the line of flight is over the
land. And the land is appropriated as directly and completely as if
it were used for the runways themselves.

															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. [ Footnote 7 ] That was
the philosophy of Portsmouth Harbor Land &
Hotel Co. v. Page 328 U. S. 263 United States, 260 U. S. 327 . 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." [ Footnote 8 ]
260 U.S. at 260 U. S. 330 . And see Delta Air Corp. v. Kersey, 193 Ga. 862, 20 S.E.2d
245. Cf. United States v. 357.25 Acres of
Land, 55 F. Supp.
461 .

															The fact that the path of glide taken by the planes was that
approved by the Civil Aeronautics Authority does not change the
result. The navigable airspace which Congress has placed in the
public domain is "airspace above the minimum safe altitudes of
flight prescribed by the Civil Aeronautics Authority." 49 U.S.C. §
180. If that agency prescribed 83 feet as the minimum safe
altitude, then we would have presented the question of the validity
of the regulation. But nothing of the sort has been done. The path
of glide governs the method of operating -- of landing or taking
off. The altitude required for that operation is not the minimum
safe altitude of flight which is the downward reach of the
navigable airspace. The minimum prescribed by the authority is 500
feet during the day and 1000 feet at night for air carriers (Civil
Air Regulations, Pt. 61, §§ 61.7400, 61.7401, Code
Fed.Reg.Cum.Supp., Tit. 14, ch. 1) and from 300 to 1000 feet
for Page 328 U. S. 264 other aircraft depending on the type of plane and the character
of the terrain. Id., Pt. 60, §§ 60.350-60.3505,
Fed.Reg.Cum.Supp., supra. Hence, the flights in question
were not within the navigable airspace which Congress placed within
the public domain. If any airspace needed for landing or taking off
were included, flights which were so close to the land as to render
it uninhabitable would be immune. But the United States concedes,
as we have said, that, in that event, there would be a taking.
Thus, it is apparent that the path of glide is not the minimum safe
altitude of flight within the meaning of the statute. The Civil
Aeronautics Authority has, of course, the power to prescribe air
traffic rules. But Congress has defined navigable airspace only in
terms of one of them -- the minimum safe altitudes of flight.

															We have said that the airspace is a public highway. Yet it is
obvious that, 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 principle is recognized when the law gives a remedy in
case overhanging structures are erected on adjoining land.
[ Footnote 9 ] The landowner owns
at least as much of the space above the ground as the can occupy or
use in connection with the land. See Hinman v. Pacific Air
Transport, 84 F.2d 755. The fact that he does not occupy it in
a physical sense -- by the erection of buildings and the like -- is
not material. As we have said, the flight of airplanes, which skim
the surface but do not touch it, is as much an appropriation of the
use of the land as a more conventional entry upon it. We would not
doubt that, if the United States erected Page 328 U. S. 265 an elevated railway over respondents' land at the precise
altitude where its planes now fly, there would be a partial taking,
even though none of the supports of the structure rested on the
land. [ Footnote 10 ] The
reason is that there would be an intrusion so immediate and direct
as to subtract from the owner's full enjoyment of the property and
to limit his exploitation of it. While the owner does not in any
physical manner occupy that stratum of airspace or make use of it
in the conventional sense, he does use it in somewhat the same
sense that space left between buildings for the purpose of light
and air is used. The superadjacent airspace at this low altitude is
so close to the land that continuous invasions of it affect the use
of the surface of the land itself. We think that the landowner, as
an incident to his ownership, has a claim to it, and that invasions
of it are in the same category as invasions of the surface.
[ Footnote 11 ]

															In this case, as in Portsmouth Harbor Land & Hotel Co.
v. United States, supra, the damages were not merely
consequential. They were the product of a direct invasion of
respondents' domain. Page 328 U. S. 266 As stated in United States v. Cress, 243 U.
S. 316 , 243 U. S.
328 ,

															". . . it is the character of the invasion, not the amount of
damage resulting from it, so long as the damage is substantial,
that determines the question whether it is a taking."

															We said in United States v. Powelson, supra, p. 319 U. S. 279 ,
that, while the meaning of "property" as used in the Fifth
Amendment was a federal question, "it will normally obtain its
content by reference to local law." If we look to North Carolina
law, we reach the same result. Sovereignty in the airspace rests in
the State "except where granted to and assumed by the United
States." Gen.Stats.1943, § 63-11. The flight of aircraft is
lawful

															"unless at such a low altitude as to interfere with the then
existing use to which the land or water, or the space over the land
or water, is put by the owner, or unless so conducted as to be
imminently dangerous to persons or property lawfully on the land or
water beneath." Id., § 63-13. Subject to that right of flight,
"ownership of the space above the lands and waters of this State is
declared to be vested in the several owners of the surface
beneath." Id., § 63-12. Our holding that there was an
invasion of respondents' property is thus not inconsistent with the
local law governing a landowner's claim to the immediate reaches of
the superadjacent airspace.

															The airplane is part of the modern environment of life, and the
inconveniences which it causes are normally not compensable under
the Fifth Amendment. The airspace, apart from the immediate reaches
above the land, is part of the public domain. We need not determine
at this time what those precise limits are. Flights over private
land are not a taking, unless they are so low and so frequent as to
be a direct and immediate interference with the enjoyment and use
of the land. We need not speculate on that phase of the present
case. For the findings of the Court Page 328 U. S. 267 of Claims plainly establish that there was a diminution in value
of the property, and that the frequent, low-level flights were the
direct and immediate cause. We agree with the Court of Claims that
a servitude has been imposed upon the land.

															II. By § 145(1) of the Judicial Code, 28 U.S.C. § 250(1), the
Court of Claims has jurisdiction to hear and determine

															"All claims (except for pensions) founded upon the Constitution
of the United States or . . . upon any contract, express or
implied, with the Government of the United States."

															We need not decide whether repeated trespasses might give rise
to an implied contract. Cf. Portsmouth Harbor Land & Hotel
Co. v. United States, supra. If there is a taking, the claim
is "founded upon the Constitution," and within the jurisdiction of
the Court of Claims to hear and determine. See Hollister v.
Benedict & Burnham Mfg. Co., 113 U. S.
59 , 113 U. S. 67 ; Hurley v. Kincaid, 285 U. S. 95 , 285 U. S. 104 ; Yearsley v. W. A. Ross Construction Co., 309 U. S.
18 , 309 U. S. 21 .
Thus, the jurisdiction of the Court of Claims in this case is
clear.

															III. The Court of Claims held, as we have noted, that an
easement was taken. But the findings of fact contain no precise
description as to its nature. It is not described in terms of
frequency of flight, permissible altitude, or type of airplane. Nor
is there a finding as to whether the easement taken was temporary
or permanent. Yet an accurate description of the property taken is
essential, since that interest vests in the United States. United States v. Cress, supra, 243 U. S.
328 -329, and cases cited. It is true that the Court of
Claims stated in its opinion that the easement taken was permanent.
But the deficiency in findings cannot be rectified by statements in
the opinion. United States v. Esnault-Pelterie, 299 U. S. 201 , 299 U. S.
205 -206; United States v. Seminole Nation, 299 U. S. 417 , 299 U. S. 422 .
Findings of fact on every "material issue" are a statutory Page 328 U. S. 268 requirement. 53 Stat. 752, 28 U.S.C. § 288. The importance of
findings of fact based on evidence is emphasized here by the Court
of Claims' treatment of the nature of the easement. It stated in
its opinion that the easement was permanent because the United
States "no doubt intended to make some sort of arrangement whereby
it could use the airport for its military planes whenever it had
occasion to do so." That sounds more like conjecture, rather than a
conclusion from evidence, and if so, it would not be a proper
foundation for liability of the United States. We do not stop to
examine the evidence to determine whether it would support such a
finding, if made. For that is not our function. United States
v. Esnault-Pelterie, supra, p. 299 U. S.
206 .

															Since on this record it is not clear whether the easement taken
is a permanent or a temporary one, it would be premature for us to
consider whether the amount of the award made by the Court of
Claims was proper.

															The judgment is reversed, and the cause is remanded to the Court
of Claims so that it may make the necessary findings in conformity
with this opinion. Reversed. MR. JUSTICE JACKSON took no part in the consideration or
decision of this case.

															[ Footnote 1 ]

															A 30 to 1 glide angle means one foot of elevation or descent for
every 30 feet of horizontal distance.

															[ Footnote 2 ]

															Military planes are subject to the rules of the Civil
Aeronautics Board where, as in the present case, there are no Army
or Navy regulations to the contrary. Cameron v. Civil
Aeronautics Board, 140 F.2d 482.

															[ Footnote 3 ]

															The house is approximately 16 feet high, the barn 20 feet, and
the tallest tree 65 feet.

															[ Footnote 4 ]

															"Air commerce" is defined as including "any operation or
navigation of aircraft which directly affects, or which may
endanger safety in, interstate, overseas, or foreign air commerce."
49 U.S.C. § 401(3).

															[ Footnote 5 ]

															1 Coke, Institutes, 19th Ed. 1832, ch. 1, § 1(4a); 2 Blackstone,
Commentaries, Lewis Ed.1902, p. 18; 3 Kent, Commentaries, Gould Ed.
1896, p. 621.

															[ Footnote 6 ]

															The destruction of all uses of the property by flooding has been
held to constitute a taking. Pumpelly v. Green Bay
Co. , 13 Wall. 166; United States v. Lynah, 188 U. S. 445 ; United States v. Welch, 217 U. S. 333 .

															[ Footnote 7 ]

															It was stated in United States v. General Motors Corp., 323 U. S. 373 , 323 U. S.
378 ,

															"The courts have held that the deprivation of the former owner,
rather than the accretion of a right or interest to the sovereign,
constitutes the taking. Governmental action short of acquisition of
title or occupancy has been held, if its effects are so complete as
to deprive the owner of all or most of his interest in the subject
matter, to amount to a taking."

															The present case falls short of the General Motors case. This is not a case where the United States has merely
destroyed property. It is using a part of it for the flight of its
planes. Cf. Warren Township School Dist. v. Detroit, 308 Mich.
460, 14 N.W.2d 134; Smith v. New England Aircraft Co., 270
Mass. 511, 170 N.E. 385; Burnham v. Beverly Airways, Inc., 311 Mass. 628, 42 N.E.2d 575.

															[ Footnote 8 ]

															On remand, the allegations in the petition were found not to be
supported by the facts. 64 Ct.Cls. 572.

															[ Footnote 9 ] Baten's Case, 9 Coke R. 53b; Meyer v. Metzler, 51 Cal. 142; Codman v. Evans, 7 Allen 431, 89 Mass. 431; Harrington v. McCarthy, 169 Mass. 492, 48 N.E. 278. See Ball, The Vertical Extent of Ownership in Land, 76
U.Pa.L.Rev. 631, 658-671.

															[ Footnote 10 ]

															It was held in Butler v. Frontier Telephone Co., 186
N.Y. 486, 79 N.E. 716, that ejectment would lie where a telephone
wire was strung across the plaintiff's property, even though it did
not touch the soil. The court stated, pp. 491-492:

															". . . an owner is entitled to the absolute and undisturbed
possession of every part of his premises, including the space
above, as much as a mine beneath. If the wire had been a huge
cable, several inches thick and but a foot above the ground, there
would have been a difference in degree, but not in principle.
Expand the wire into a beam supported by posts standing upon
abutting lots without touching the surface of plaintiff's land, and
the difference would still be one of degree only. Enlarge the beam
into a bridge, and yet space only would be occupied. Erect a house
upon the bridge, and the air above the surface of the land would
alone be disturbed."

															[ Footnote 11 ] See Bouve, Private Ownership of Navigable Airspace
Under the Commerce Clause, 21 Amer.Bar Assoc.Journ. 416, 421-422;
Hise, Ownership and Sovereignty of the Air, 16 Ia.L.Rev. 169;
Eubank, The Doctrine of the Airspace Zone of Effective Possession,
12 Boston Univ.L.Rev. 414.

															MR. JUSTICE BLACK, dissenting.

															The Fifth Amendment provides that "private property" shall not
"be taken for public use, without just compensation." The Court
holds today that the Government has "taken" respondents' property
by repeatedly flying Army bombers directly above respondents' land
at a height of eighty-three feet where the light and noise from
these planes caused respondents to lose sleep, and their chickens
to be killed. Since the effect of the Court's decision is Page 328 U. S. 269 to limit, by the imposition of relatively absolute
Constitutional barriers, possible future adjustments through
legislation and regulation which might become necessary with the
growth of air transportation, and since, in my view, the
Constitution does not contain such barriers, I dissent.

															The following is a brief statement of the background and of the
events that the Court's opinion terms a "taking" within the meaning
of the Fifth Amendment: since 1928, there has been an airfield some
eight miles from Greensboro, North Carolina. In April, 1942, this
airport was taken over by the Greensboro-High Point Municipal
Airport Authority, and it has since then operated as a municipal
airport. In 1942, the Government, by contract, obtained the right
to use the field "concurrently, jointly, and in common" with other
users. Years before, in 1934, respondents had bought their
property, located more than one-third of a mile from the airport.
Private planes from the airport flew over their land and farm
buildings from 1934 to 1942. and are still doing so. But though
these planes disturbed respondents to some extent, Army bombers,
which started to fly over the land in 1942 at a height of
eighty-three feet, disturbed them more, because they were larger,
came over more frequently, made a louder noise, and, at night, a
greater glare was caused by their lights. This noise and glare
disturbed respondents' sleep, frightened them, and made them
nervous. The noise and light also frightened respondents' chickens
so much that many of them flew against buildings and were
killed.

															The Court's opinion seems to indicate that the mere flying of
planes through the column of air directly above respondents' land
does not constitute a "taking." Consequently, it appears to be
noise and glare, to the extent and under the circumstances shown
here, which make the government a seizer of private property. But
the allegation Page 328 U. S. 270 of noise and glare resulting in damages constitutes at best, an
action in tort where there might be recovery if the noise and light
constituted a nuisance, a violation of a statute, [ Footnote 2/1 ] or were the result of negligence.
[ Footnote 2/2 ] But the Government
has not consented to be sued in the Court of Claims except in
actions based on express or implied contract. And there is no
implied contract here, unless, by reason of the noise and glare
caused by the bombers, the Government can be said to have "taken"
respondents' property in a Constitutional sense. The concept of
taking property, as used in the Constitution, has heretofore never
been given so sweeping a meaning. The Court's opinion presents no
case where a man who makes noise or shines light onto his
neighbor's property has been ejected from that property for
wrongfully taking possession of it. Nor would anyone take seriously
a claim that noisy automobiles passing on a highway are taking
wrongful possession of the homes located thereon, or that a city
elevated train which greatly interferes with the sleep of those who
live next to it wrongfully takes their property. Even the one case
in this Court which, in considering the sufficiency of a complaint,
gave the most elastic meaning to the phrase "private property be
taken," as used in the Fifth Amendment, did not go so far. Portsmouth Harbor Land &
Hotel Co. v. United States , 260 U.S. Page 328 U. S. 271 327. I am not willing, nor do I think the Constitution and the
decisions authorize me, to extend that phrase so as to guarantee an
absolute Constitutional right to relief not subject to legislative
change, which is based on averments that, at best, show mere torts
committed by Government agents while flying over land. The future
adjustment of the rights and remedies of property owners, which
might be found necessary because of the flight of planes at safe
altitudes, should, especially in view of the imminent expansion of
air navigation, be left where I think the Constitution left it --
with Congress.

															Nor do I reach a different conclusion because of the fact that
the particular circumstance which under the Court's opinion makes
the tort here absolutely actionable is the passing of planes
through a column of air at an elevation of eighty-three feet
directly over respondents' property. It is inconceivable to me that
the Constitution guarantees that the airspace of this Nation needed
for air navigation is owned by the particular persons who happen to
own the land beneath to the same degree as they own the surface
below. [ Footnote 2/3 ] No rigid
Constitutional rule, in my judgment, commands that the air must be
considered as marked off into separate compartments by imaginary
metes and bounds in order to synchronize air ownership with land
ownership. I think that the Constitution entrusts Congress with
full power to control all navigable airspace. Congress has already
acted under that power. It has by statute, 44 Stat. 568, 52 Stat.
973, provided that

															"the United States of America is . . . to possess and exercise
complete and exclusive national sovereignty in the Page 328 U. S. 272 air space [over] the United States."

															This was done under the assumption that the Commerce Clause of
the Constitution gave Congress the same plenary power to control
navigable airspace as its plenary power over navigable waters.
H.Rep. No. 572, 69th Cong., 1st Sess., p. 10; H.Rep. No. 1162, 69th
Cong., 1st Sess., p. 14; United States v. Commodore Park,
Inc., 324 U. S. 386 . To
make sure that the airspace used for air navigation would remain
free, Congress further declared that "navigable airspace shall be
subject to a public right of freedom of interstate and foreign air
navigation," and finally stated emphatically that there exists "a
public right of freedom of transit . . . through the navigable
airspace of the United States." Congress thus declared that the air
is free -- not subject to private ownership and not subject to
delimitation by the courts. Congress and those acting under its
authority were the only ones who had power to control and regulate
the flight of planes. "Navigable air-space" was defined as
"airspace above the minimum safe altitudes of flight prescribed by
the Civil Aeronautics Authority." 49 U.S.C. § 180. Thus, Congress
has given the Civil Aeronautics Authority exclusive power to
determine what is navigable airspace subject to its exclusive
control. This power derives specifically from the Section which
authorizes the Authority to prescribe

															"air traffic rules governing the flight of, and for the
navigation, protection, and identification of, aircraft, including
rules as to safe altitudes of flight and rules for the prevention
of collisions between aircraft, and between aircraft and land or
water vehicles."

															Here, there was no showing that the bombers flying over
respondents' land violated any rule or regulation of the Civil
Aeronautics Authority. Yet, unless we hold the Act
unconstitutional, at least such a showing would be necessary before
the courts could act without interfering with the exclusive
authority which Congress gave to the administrative agency. Not
even a Page 328 U. S. 273 showing that the Authority has not acted at all would be
sufficient. For, in that event, were the courts to have any
authority to act in this case at all, they should stay their hand
till the Authority has acted.

															The broad provisions of the Congressional statute cannot
properly be circumscribed by making a distinction, as the Court's
opinion does, between rules of safe altitude of flight while on the
level of cross-country flight and rules of safe altitude during
landing and taking off. First, such a distinction cannot be
maintained from the practical standpoint. It is unlikely that
Congress intended that the Authority prescribe safe altitudes for
planes making cross-country flights while, at the same time, it
left the more hazardous landing and take-off operations
unregulated. The legislative history, moreover, clearly shows that
the Authority's power to prescribe air traffic rules includes the
power to make rules governing landing and take-off. Nor is the
Court justified in ignoring that history by labeling rules of safe
altitude while on the level of cross-country flight as rules
prescribing the safe altitude proper and rules governing take-off
and landing as rules of operation. For the Conference Report
explicitly states that such distinctions were purposely eliminated
from the original House Bill in order that the Section on air
traffic rules "might be given the broadest construction by the . .
. [Civil Aeronautics Authority] . . . and the courts." [ Footnote 2/4 ] In construing the statute
narrowly the Court Page 328 U. S. 274 thwarts the intent of Congress. A proper broad construction,
such as Congress commanded, would not permit the Court to decide
what it has today without declaring the Act of Congress
unconstitutional. I think the Act given the broad construction
intended is constitutional.

															No greater confusion could be brought about in the coming age of
air transportation than that which would result were courts by
Constitutional interpretation to hamper Congress in its efforts to
keep the air free. Old concepts of private ownership of land should
not be introduced into the field of air regulation. I have no doubt
that Congress will, if not handicapped by judicial interpretations
of the Constitution, preserve the freedom of the air, and at the
same time, satisfy the just claims of aggrieved persons. The noise
of newer, larger, and more powerful planes may grow louder and
louder and disturb people more and more. But the solution of the
problems precipitated by these technological advances and new ways
of living cannot come about through the application of rigid
Constitutional restraints formulated and enforced by the courts.
What adjustments may have to be made, only the future can reveal.
It seems certain, however, Page 328 U. S. 275 the courts do not possess the techniques or the personnel to
consider and act upon the complex combinations of factors entering
into the problems. The contribution of courts must be made through
the awarding of damages for injuries suffered from the flying of
planes, or by the granting of injunctions to prohibit their flying.
When these two simple remedial devices are elevated to a
Constitutional level under the Fifth Amendment, as the Court today
seems to have done, they can stand as obstacles to better adapted
techniques that might be offered by experienced experts and
accepted by Congress. Today's opinion is, I fear, an opening wedge
for an unwarranted judicial interference with the power of Congress
to develop solutions for new and vital and national problems. In my
opinion, this case should be reversed on the ground that there has
been no "taking" in the Constitutional sense.

															[ Footnote 2/1 ] Neiswonger v. Goodyear Tire & Rubber
Co., 35 F.2d
761 .

															[ Footnote 2/2 ]

															As to the damage to chickens, Judge Madden, dissenting from this
judgment against the Government said,

															"When railroads were new, cattle in fields in sight and hearing
of the trains were alarmed, thinking that the great moving objects
would turn aside and harm them. Horses ran away at the sight and
sound of a train or a threshing machine engine. The farmer's
chickens have to get over being alarmed at the incredible racket of
the tractor starting up suddenly in the shed adjoining the chicken
house. These sights and noises are a part of our world, and
airplanes are now and will be to a greater degree, likewise a part
of it. These disturbances should not be treated as torts in the
case of the airplane any more than they are so treated in the case
of the railroad or public highway."

															104 Ct.Cls. 342, 358.

															[ Footnote 2/3 ]

															The House, in its report on the Air Commerce Act of 1926,
stated:

															"The public right of flight in the navigable air space owes its
source to the same constitutional basis which, under decisions of
the Supreme Court, has given rise to a public easement of
navigation in the navigable waters of the United States regardless
of the ownership of adjacent or subjacent soil."

															House Report No. 572, 69th Congress, First Session, page 10.

															[ Footnote 2/4 ]

															The full statement read:

															"The substitute provides that the Secretary shall by regulation
establish air traffic rules for the navigation, protection, and
identification of all aircraft, including rules for the safe
altitudes of flight and rules for the prevention of collisions
between vessels and aircraft. The provision as to rules for taking
off and alighting, for instance, was eliminated as unnecessary
specification, for the reason that such rules are but one class of
air traffic rules for the navigation and protection of aircraft.
Rules as to marking were eliminated for the reason that such rules
were fairly included within the scope of air rules for the
identification of aircraft. No attempt is made by either the Senate
bill or the House amendment to fully define the various classes of
rules that would fall within the scope of air traffic traffic
rules, as, for instance, lights and signals along airways and at
airports and upon emergency landing fields. In general, these rules
would relate to the same subjects as those covered by navigation
laws and regulations and by the various State motor vehicle traffic
codes. As noted above, surplusage was eliminated in specifying
particular air traffic rules in order that the term might be given
the broadest possible construction by the Department of Commerce
and the courts."

															House Report No. 1162, 69th Congress, 1st Session, p. 12.

															That the rules for landing and take-off are rules prescribing
"minimum safe altitudes of flight" is shown by the following
further statement in the House Report:

															". . . the minimum safe altitudes of flight . . . would vary
with the terrain and location of cities and would coincide with the
surface of the land or water at airports." Id. at p. 14.

Summary:
Here is a summary of the United States v. Causby case:

The Supreme Court ruled that the government imposed a servitude on the respondents' land, entitling them to compensation under the Fifth Amendment. The Court rejected the idea that land ownership extends infinitely upward and instead defined the public airspace as beginning at the minimum safe altitude of flight. While the airspace above this altitude is considered a public highway, flights below it are not within the public domain, even if they are within the path of glide. The Court determined that frequent and low-altitude flights over private land can be considered an appropriation of land use, similar to a conventional entry.

The Court also concluded that the Court of Claims had jurisdiction to hear the case, as the claim was "founded upon the Constitution" due to the taking of private property for public use. This case sets a precedent for balancing property rights with the increasing presence of aircraft in modern life.


U.S. Supreme Court Nectow v. City of Cambridge, 277
U.S. 183 (1928) Nectow v. City of
Cambridge No. 509 Argued April 19, 1928 Decided May 14, 1928 277
U.S. 183 ERROR TO THE SUPREME JUDICIAL COURT
OF MASSACHUSETTS Syllabus The inclusion of private land in a residential district under a
zoning ordinance, with resulting inhibition of its use for business
and industrial buildings to the serious damage of the owner,
violates the Fourteenth Amendment if the health, safety,
convenience, or general welfare of the part of the city affected
will not be promoted thereby. P. 277 U. S.
188 .

															260 Mass. 441 reversed.

															Error to a judgment of the Supreme Judicial Court of
Massachusetts which dismissed a bill brought in that court by
Nectow for a mandatory injunction directing the city and its
building inspector to pass upon an application to erect any lawful
buildings upon his land without regard to an ordinance including it
within a restricted residential district. Page 277 U. S. 185 MR. JUSTICE SUTHERLAND delivered the opinion of the Court.

															A zoning ordinance of the City of Cambridge divides the city
into three kinds of districts -- residential, business, and
unrestricted. Each of these districts is subclassified in respect
of the kind of buildings which way be erected. The ordinance is an
elaborate one, and of the same general character as that considered
by this Court in Euclid v. Ambler Co., 272 U.
S. 365 . In its general scope, it is conceded to be
constitutional within that decision. The land of plaintiff in error
was put in District R-3, in which are permitted only dwellings,
hotels, clubs, churches, schools, philanthropic institutions,
greenhouses and gardening, with customary incidental accessories.
The attack upon the ordinance is that, as specifically applied to
plaintiff in error, it deprived him of his property without due
process of law in contravention of the Fourteenth Amendment. Page 277 U. S. 186 The suit was for a mandatory injunction directing the city and
its inspector of buildings to pass upon an application of the
plaintiff in error for a permit to erect any lawful buildings upon
a tract of land without regard to the provisions of the ordinance
including such tract within a residential district. The case was
referred to a master to make and report findings of fact. After a
view of the premises and the surrounding territory, and a hearing,
the master made and reported his findings. The case came on to be
heard by a justice of the court, who, after confirming the master's
report, reported the case for the determination of the full court.
Upon consideration, that court sustained the ordinance as applied
to plaintiff in error, and dismissed the bill. 260 Mass. 441.

															A condensed statement of facts, taken from the master's report,
is all that is necessary. When the zoning ordinance was enacted,
plaintiff in error was and still is the owner of a tract of land
containing 140,000 square feet, of which the locus here in question
is a part. The locus contains about 29,000 square feet, with a
frontage on Brookline Street, lying west, of 304.75 feet, on Henry
Street, lying north, of 100 feet, on the other land of the
plaintiff in error, lying east, of 264 feet, and on land of the
Ford Motor Company, lying southerly, of 75 feet. The territory
lying east and south is unrestricted. The lands beyond Henry Street
to the north and beyond Brookline Street to the west are within a
restricted residential district. The effect of the zoning is to
separate from the west end of plaintiff in error's tract a strip
100 feet in width. The Ford Motor Company has a large auto
assembling factory south of the locus, and a soap factory and the
tracks of the Boston & Albany Railroad lie near. Opposite the
locus, on Brookline Street, and included in the same district,
there are some residences, and opposite the locus, on Henry Street,
and in the same district, are other residences. The locus is now
vacant, Page 277 U. S. 187 although it was once occupied by a mansion house. Before the
passage of the ordinance in question, plaintiff in error had
outstanding a contract for the sale of the greater part of his
entire tract of land for the sum of $63,000. Because of the zoning
restrictions, the purchaser refused to comply with the contract.
Under the ordinance, business and industry of all sorts are
excluded from the locus, while the remainder of the tract is
unrestricted. It further appears that provision has been made for
widening Brookline Street, the effect of which, if carried out,
will be to reduce the depth of the locus to 65 feet. After a
statement at length of further facts, the master finds:

															"That no practical use can be made of the land in question for
residential purposes, because, among other reasons herein related,
there would not be adequate return on the amount of any investment
for the development of the property."

															The last finding of the master is:

															"I am satisfied that the districting of the plaintiff's land in
a residence district would not promote the health, safety,
convenience, and general welfare of the inhabitants of that part of
the defendant city, taking into account the natural development
thereof and the character of the district and the resulting benefit
to accrue to the whole city, and I so find."

															It is made pretty clear that, because of the industrial and
railroad purposes to which the immediately adjoining lands to the
south and east have been devoted and for which they are zoned, the
locus is of comparatively little value for the limited uses
permitted by the ordinance.

															We quite agree with the opinion expressed below that a court
should not set aside the determination of public officers in such a
matter unless it is clear that their action

															"has no foundation in reason, and is a mere arbitrary or
irrational exercise of power having no substantial relation to the
public health, the public morals, the public Page 277 U. S. 188 safety, or the public welfare in its proper sense." Euclid v. Ambler Co., supra, p. 272 U. S.
395 .

															An inspection of a plat of the city upon which the zoning
districts are outlined, taken in connection with the master's
findings, shows with reasonable certainty that the inclusion of the
locus in question is not indispensable to the general plan. The
boundary line of the residential district before reaching the locus
runs for some distance along the streets, and to exclude the locus
from the residential district requires only that such line shall be
continued 100 feet further along Henry Street and thence south
along Brookline Street. There does not appear to be any reason why
this should not be done. Nevertheless, if that were all, we should
not be warranted in substituting our judgment for that of the
zoning authorities primarily charged with the duty and
responsibility of determining the question. Zahn v. Board of
Public Works, 274 U. S. 325 , 274 U. S. 328 , and
cases cited. But that is not all. The governmental power to
interfere by zoning regulations with the general rights of the land
owner by restricting the character of his use is not unlimited,
and, other questions aside, such restriction cannot be imposed if
it does not bear a substantial relation to the public health,
safety, morals, or general welfare. Euclid v. Ambler Co.,
supra, p. 272 U. S. 395 .
Here, the express finding of the master, already quoted, confirmed
by the court below, is that the health, safety, convenience, and
general welfare of the inhabitants of the part of the city affected
will not be promoted by the disposition made by the ordinance of
the locus in question. This finding of the master, after a hearing
and an inspection of the entire area affected, supported, as we
think it is, by other findings of fact, is determinative of the
case. That the invasion of the property of plaintiff in error was
serious and highly injurious is clearly established, and, since a
necessary Page 277 U. S. 189 basis for the support of that invasion is wanting, the action of
the zoning authorities comes within the ban of the Fourteenth
Amendment, and cannot be sustained. Judgment reversed.

Summary: Nectow v. City of Cambridge (1928): The Supreme Court ruled that a city's zoning ordinance, which included private land in a residential district and restricted its use, violated the Fourteenth Amendment as it did not promote the health, safety, convenience, or general welfare of the affected area. The Court found that the ordinance's restriction on the landowner's use of their property was not substantially related to the public interest and caused serious and highly injurious consequences for the landowner.


U.S. Supreme Court Barrows v. Jackson, 346
U.S. 249 (1953) Barrows v. Jackson No. 517 Argued April 28-29,
1953 Decided June 15, 1953 346
U.S. 249 CERTIORARI TO THE DISTRICT COURT OF
APPEAL OF CALIFORNIA, SECOND APPELLATE
DISTRICT Syllabus The enforcement of a covenant forbidding use and occupancy of
real estate by non-Caucasians, by an action at law in a state court
to recover damages from a co-covenantor for a breach of the
covenant, is barred by the Fourteenth Amendment of the Federal
Constitution. Pp. 346 U. S.
251 -260.

															(a) The action of a state court in thus sanctioning a racial
restrictive covenant would constitute state action within the
prohibition of the Fourteenth Amendment. P. 346 U. S.
254 .

															(b) State action in allowing damages for breach of a covenant
not to permit non-Caucasians to use and occupy their property would
deprive such non-Caucasians, unidentified but identifiable, of
equal protection of the laws in violation of the Fourteenth
Amendment. P. 346 U. S.
254 .

															(c) The principle that a person cannot challenge the
constitutionality of a statute unless he shows that he himself is
injured by its operation has no application to the instant case, in
which respondent has been sued for damages totaling $11,600, and in
which a judgment against respondent would constitute a direct
pocketbook injury to her. Pp. 346 U. S.
254 -256.

															(d) Under the peculiar circumstances of this case, the reasons
which underlie the rule denying standing to raise another's
constitutional rights, which is only a rule of practice, are
outweighed by the need to protect the fundamental rights which
would be denied by permitting the damages action to be maintained.
P. 346 U. S.
257 .

															(e) The principle that the right to equal protection of the laws
is a "personal" right, guaranteed to the individual, rather than to
groups or classes, is not here violated, since it is not
non-Caucasians as a group whose rights are asserted by the
defendant in the damages action, but the rights of particular
non-Caucasian would-be users of restricted land. Pp. 346 U. S.
259 -260.

															(f) The provision of Art. I, §10 of the Federal Constitution,
that "No State shall . . . pass any . . . Law impairing the
Obligation of Contracts," is not violated by the refusal of a state
court Page 346 U. S. 250 to enforce a racial restrictive covenant, since that provision
is directed against legislative action only, not against the
judgments of courts. P. 346 U. S.
260 .

															(g) The plaintiffs in an action for damages for breach of a
racial restrictive covenant are not denied due process and equal
protection of the laws by the state court's refusal to enforce the
covenant, since the Constitution confers upon no individual the
right to demand action by the State which would result in the
denial of equal protection of the laws to others. P. 346 U. S.
260 . 112 Cal. App.
2d 534 , 247 P.2d 99, affirmed.

															Petitioners sued respondent in a California state court to
recover damages for an alleged breach of a racial restrictive
covenant. The trial court sustained a demurrer to the complaint.
The district Court of Appeal affirmed. 112 Cal.
App. 2d 534 , 247 P.2d 99. The State Supreme Court denied a
hearing. This Court granted certiorari. 345 U.S. 902. Affirmed, p. 346 U. S.
260 . Page 346 U. S. 251 MR. JUSTICE MINTON delivered the opinion of the Court.

															This Court held in Shelley v. Kraemer, 334 U. S.
1 , that racial restrictive covenants could not be
enforced in equity against Negro purchasers because such
enforcement would constitute state action denying equal protection
of the laws to the Negroes, in violation of the Fourteenth
Amendment to the Federal Constitution. The question we now have is:
can such a restrictive covenant be enforced at law by a suit for
damages against a co-covenantor who allegedly broke the
covenant?

															Petitioners [ Footnote 1 ]
sued respondent at law for damages for breach of a restrictive
covenant the parties entered into as owners of residential real
estate in the same neighborhood in Los Angeles, California. The
petitioners' complaint alleged in part:

															"That by the terms of said Agreement each of the signers
promised and agreed in writing and bound himself, his heirs,
executors, administrators, successors, and assigns, by a continuing
covenant that no part of his said real property, described therein,
should ever at any time be used or occupied by any person or
persons not wholly of the white or Caucasian race, and also agreed
and promised in writing that this restriction should be
incorporated in all papers and transfers of lots or parcels of land
hereinabove referred to; provided, however, that said restrictions
should not prevent the employment by Page 346 U. S. 252 the owners or tenants of said real property of domestic servants
or other employees who are not wholly of the white or Caucasian
race; provided, further, however, that such employees shall be
permitted to occupy said real property only when actively engaged
in such employment. That said Agreement was agreed to be a covenant
running with the land. That each provision in said Agreement was
for the benefit for all the lots therein described."

															The complaint further alleged that respondent broke the covenant
in two respects: (1) by conveying her real estate without
incorporating in the deed the restriction contained in the
covenant; and (2) by permitting non-Caucasians to move in and
occupy the premises. The trial court sustained a demurrer to the
complaint, the District Court of Appeals for the Second Appellate
District affirmed, 112 Cal. App.
2d 534 , 247 P.2d 99, and the Supreme Court of California denied
hearing. We granted certiorari, 345 U.S. 902, because of the
importance of the constitutional question involved and to consider
the conflict which has arisen in the decisions of the state courts
since our ruling in the Shelley case, supra. Like
the California court in the instant case, the Supreme Court of
Michigan sustained the dismissal of a claim for damages for breach
of a racial restrictive covenant, Phillips v. Naff, 332
Mich. 389, 52 N.W.2d
158 . See also Roberts v. Curtis, 93 F. Supp.
604 . The Supreme Court of Missouri reached a contrary result, Weiss v. Leaon, 359 Mo. 1054, 225 S.W.2d 127, while the
Supreme Court of Oklahoma has held that a claim for damages may be
maintained against a white seller, an intermediate straw man, and a
non-Caucasian purchaser for a conspiracy to violate the covenant, Correll v. Earley, 205 Okl. 366, 237 P.2d
1017 . Page 346 U. S. 253 The trial court in the case here held a party to a covenant
restricting use and occupancy [ Footnote 2 ] of real estate to Caucasians could not
maintain a suit at law against a co-covenantor for breach of the
covenant because of our ruling in Shelley, supra. In Shelley, this Court held that the action of the lower
courts in granting equitable relief in the enforcement of such
covenants constituted state action denying to Negroes, against whom
the covenant was sought to be enforced, equal protection of the
laws in violation of the Fourteenth Amendment. This Court said:

															"We conclude, therefore, that the restrictive agreements,
standing alone, cannot be regarded as a violation of any rights
guaranteed to petitioners by the Fourteenth Amendment. So long as
the purposes of those agreements are effectuated by voluntary
adherence to their terms, it would appear clear that there has been
no action by the State, and the provisions of the Amendment have
not been violated. . . ." 334 U. S. 334 U.S.
1, 334 U. S. 13 .

															That is to say, the law applicable in that case did not make the
covenant itself invalid, no one would be punished for making it,
and no one's constitutional rights were violated by the
covenantor's voluntary adherence thereto. Such voluntary adherence
would constitute individual action only. When, however, the parties
cease to rely upon voluntary action to carry out the covenant and
the State is asked to step in and give its sanction to the
enforcement of the covenant, the first question Page 346 U. S. 254 that arises is whether a court's awarding damages constitutes
state action under the Fourteenth Amendment. To compel respondent
to respond in damages would be for the State to punish her for her
failure to perform her covenant to continue to discriminate against
non-Caucasians in the use of her property. The result of that
sanction by the State would be to encourage the use of restrictive
covenants. To that extent, the State would act to put its sanction
behind the covenants. If the State may thus punish respondent for
her failure to carry our her covenant, she is coerced to continue
to use her property in a discriminatory manner, which, in essence,
is the purpose of the covenant. Thus, it becomes not respondent's
voluntary choice, but the State's choice that she observe her
covenant or suffer damages. The action of a state court at law to
sanction the validity of the restrictive covenant here involved
would constitute state action as surely as it was state action to
enforce such covenants in equity, as in Shelley,
supra. The next question to emerge is whether the state action in
allowing damages deprives anyone of rights protected by the
Constitution. If a state court awards damages for breach of a
restrictive covenant, a prospective seller of restricted land will
either refuse to sell to non-Caucasians or else will require
non-Caucasians to pay a higher price to meet the damages which the
seller may incur. Solely because of their race, non-Caucasians will
be unable to purchase, own, and enjoy property on the same terms as
Caucasians. Denial of this right by state action deprives such
non-Caucasians, unidentified but identifiable, of equal protection
of the laws in violation of the Fourteenth Amendment. See
Shelley, supra. But unlike Shelley, supra, no non-Caucasian is before
the Court claiming to have been denied his constitutional rights.
May respondent, whom petitioners seek to coerce by an action to pay
damages for her failure to honor her Page 346 U. S. 255 restrictive covenant, rely on the invasion of the rights of
others in her defense to this action?

															Ordinarily, one may not claim standing in this Court to
vindicate the constitutional rights of some third party. Reference
to this rule is made in varied situations. See Joint
Anti-Fascist Refugee Comm. v. McGrath, 341 U.
S. 123 , 341 U. S.
149 -154 (concurring opinion). The requirement of
standing is often used to describe the constitutional limitation on
the jurisdiction of this Court to "cases" and "controversies." See Coleman v. Miller, 307 U. S. 433 , 307 U. S. 464 (concurring opinion). Apart from the jurisdictional requirement,
this Court has developed a complementary rule of self-restraint for
its own governance (not always clearly distinguished from the
constitutional limitation) which ordinarily precludes a person from
challenging the constitutionality of state action by invoking the
rights of others. See Ashwander v. Tennessee Valley
Authority, 297 U. S. 288 , 297 U. S.
346 -348 (concurring opinion). The common thread
underlying both requirements is that a person cannot challenge the
constitutionality of a statute unless he shows that he himself is
injured by its operation. [ Footnote
3 ] This principle has no application to the instant Page 346 U. S. 256 case in which respondent has been sued for damages totaling
$11,600, and in which a judgment against respondent would
constitute a direct, pocketbook injury to her.

															There are still other cases in which the Court has held that,
even though a party will suffer a direct substantial injury from
application of a statute, he cannot challenge its constitutionality
unless he can show that he is within the class whose constitutional
rights are allegedly infringed. Bode v. Barrett, 344 U. S. 583 , 344 U. S. 585 ; Jeffrey Mfg. Co. v. Blagg, 235 U.
S. 571 , 235 U. S. 576 ; New York ex rel. Hatch v. Reardon, 204 U.
S. 152 , 204 U. S.
160 -161; see also Tennessee Elec. Power Co. v.
Tennessee Valley Authority, 306 U. S. 118 , 306 U. S. 144 .
[ Footnote 4 ] One reason for
this ruling is that the state court, when actually faced with the
question, might narrowly construe the statute to obliterate the
objectionable feature, or it might declare the unconstitutional
provisions separable. New York ex rel. Hatch v. Reardon,
supra, at 204 U. S.
160 -161; Wuchter v. Pizzutti, 276 U. S.
13 , 276 U. S. 26 -28
(dissenting opinion). It would indeed be undesirable for this Court
to consider every conceivable situation which might possibly arise
in the application of complex and comprehensive legislation. Nor
are we so ready to frustrate the expressed will of Congress or
that Page 346 U. S. 257 of the state legislatures. Cf. Southern Pacific Co. v.
Gallagher, 306 U. S. 167 , 306 U. S.
172 .

															This is a salutary rule, the validity of which we reaffirm. But,
in the instant case, we are faced with a unique situation in which
it is the action of the state court which might result in a denial
of constitutional rights and in which it would be difficult if not
impossible for the persons whose rights are asserted to present
their grievance before any court. Under the peculiar circumstances
of this case, we believe the reasons which underlie our rule
denying standing to raise another's rights, which is only a rule of
practice, are outweighed by the need to protect the fundamental
rights which would be denied by permitting the damages action to be
maintained. Cf. Quong Ham Wah Co. v. Industrial Acc.
Comm., 184 Cal. 26, 192 P. 1021.

															In other unique situations which have arisen in the past, broad
constitutional policy has led the Court to proceed without regard
to its usual rule. In Pierce v. Society of Sisters, 268 U. S. 510 , a
state statute required all parents (with certain immaterial
exceptions) to send their children to public schools. A private and
a parochial school brought suit to enjoin enforcement of the act on
the ground that it violated the constitutional rights of parents
and guardians. No parent or guardian to whom the act applied was a
party or before the Court. The Court held that the act was
unconstitutional because it "unreasonably interferes with the
liberty of parents and guardians to direct the upbringing and
education of children under their control." Pierce v. Society
of Sisters, supra, at 268 U. S. 534 -535. In short, the schools were permitted
to assert in defense of their property rights and constitutional
rights of the parents and guardians. See also Joint
Anti-Fascist Refugee Comm. v. McGrath, supra, at 341 U. S. 141 , 341 U. S.
153 -154; Columbia Broadcasting System v. United
States, 316 U. S. 407 , 316 U. S.
422 -423; Helvering
v. Page 346 U. S. 258 Gerhardt, 304 U. S. 405 ; Truax v. Raich, 239 U. S. 33 ; United States v. Railroad
Co. , 17 Wall. 322; Quong Ham Wah Co. v.
Industrial Acc. Comm., supra; cf. United States v. Jeffers, 342 U. S. 48 , 342 U. S. 52 ; Federal Communications Comm'n v. Sanders Brothers Radio
Station, 309 U. S. 470 ; Wuchter v. Pizzutti, supra. There is such a close relationship between the restrictive
covenant here and the sanction of a state court which would punish
respondent for not going forward with her covenant, and the purpose
of the covenant itself, that relaxation of the rule is called for
here. It sufficiently appears that mulcting in damages of
respondent will be solely for the purpose of giving vitality to the
restrictive covenant, that is to say, to punish respondent for not
continuing to discriminate against non-Caucasians in the use of her
property. This Court will not permit or require California to
coerce respondent to respond in damages for failure to observe a
restrictive covenant that this Court would deny California the
right to enforce in equity, Shelley, supra; or that this
Court would deny California the right to incorporate in a statute, Buchanan v. Warley, 245 U. S. 60 ; or
that could not be enforced in a federal jurisdiction because such a
covenant would be contrary to public policy:

															"It is not consistent with the public policy of the United
States to permit federal courts in the Nation's capital to exercise
general equitable powers to compel action denied the state courts
where such state action has been held to be violative of the
guaranty of the equal protection of the laws. We cannot presume
that the public policy of the United States manifests a lesser
concern for the protection of such basic rights against
discriminatory action of federal courts than against such action
taken by the courts of the States." Hurd v. Hodge, 334 U. S. 24 , 344 U. S. 35 -36. See also Roberts v. Curtis, supra. Page 346 U. S. 259 Consistency in the application of the rules of practice in this
Court does not require us in this unique set of circumstances to
put the State in such an equivocal position simply because the
person against whom the injury is directed is not before the Court
to speak for himself. The law will permit respondent to resist any
effort to compel her to observe such a covenant, so widely
condemned by the courts, since she is the one in whose charge and
keeping reposes the power to continue to use her property to
discriminate or to discontinue such use. The relation between the
coercion exerted on respondent and her possible pecuniary loss
thereby is so close to the purpose of the restrictive covenant, to
violate the constitutional rights of those discriminated against,
that respondent is the only effective adversary of the unworthy
covenant in its last stand. She will be permitted to protect
herself and, by so doing, close the gap to the use of this
covenant, so universally condemned by the courts.

															Petitioners argue that the right to equal protection of the laws
is a "personal" right, guaranteed to the individual, rather than to
groups or classes. For instance, discriminatory denial of sleeping
and dining-car facilities to an individual Negro cannot be
justified on the ground that there is little demand for such
facilities by Negroes as a group. McCabe v. Atchison, T. &
S.F. R. Co., 235 U. S. 151 , 235 U. S.
161 -162. See Sweatt v. Painter, 339 U.
S. 629 , 339 U. S. 635 .
This description of the right as "personal," when considered in the
context in which it has been used, obviously has no bearing on the
question of standing. Nor do we violate this principle by
protecting the rights of persons not identified in this record. For
instance, in the Pierce case, the persons whose rights
were invoked were identified only as "present and prospective
patrons" of the two schools. Pierce v. Society of Sisters,
supra, at 268 U. S. 535 .
In the present case, it is not non-Caucasians Page 346 U. S. 260 as a group whose rights are asserted by respondent, but the
rights of particular non-Caucasian would-be users of restricted
land.

															It is contended by petitioners that for California courts to
refuse to enforce this covenant is to impair the obligations of
their contracts. Article I, § 10, of the Federal Constitution
provides: "No State shall . . . pass any . . . Law impairing the
Obligation of Contracts. . . ." The short answer to this contention
is that this provision, as its terms indicate, is directed against
legislative action only.

															"It has been settled by a long line of decisions that the
provision of § 10, Article I, of the Federal Constitution,
protecting the obligation of contracts against state action, is
directed only against impairment by legislation, and not by
judgments of courts. . . ." Tidal Oil Co. v. Flanagan, 263 U.
S. 444 , 263 U. S.
451 .

															It is finally contended that petitioners are denied due process
and equal protection of the laws by the failure to enforce the
covenants. The answer to that proposition is stated by the Court in Shelley, supra, in these words:

															"The Constitution confers upon no individual the right to demand
action by the State which results in the denial of equal protection
of the laws to other individuals. . . ." 334 U. S. 334 U.S.
1, 334 U. S. 22 .

															The judgment is Affirmed. MR. JUSTICE REED and MR. JUSTICE JACKSON took no part in the
consideration or decision of this case.

															[ Footnote 1 ]

															Petitioner Pikaar was not a signer of the covenant, but is
successor in interest of a signer.

															[ Footnote 2 ]

															There is no question of restraint of sale here, as agreements
restraining sale of land to members of defined racial groups have
long been held unenforceable in California because they contravened
the State's statutory rule and public policy against restraints on
alienation. Wayt v. Patee, 205 Cal. 46, 269 P. 660; Title Guarantee & Trust Co. v. Garrott, 42 Cal. App.
152, 183 P. 470.

															[ Footnote 3 ] See Frothingham v. Mellon, 262 U.
S. 447 , 262 U. S.
486 -489 (federal taxpayer sought to challenge a federal
statute in the enforcement of which federal revenues were applied); Doremus v. Board of Education, 342 U.
S. 429 , 342 U. S. 434 (state taxpayer unable to show that there was "a measurable
appropriation or disbursement of . . . funds occasioned solely by
the [state] activities complained of"); Tileston v.
Ullman, 318 U. S. 44 (doctor sought a declaratory judgment that a state statute would
deprive certain of his patients of their lives without due process
of law); Tyler v. The Judges of the Court of Registration, 179 U. S. 405 , 179 U. S. 410 (landowner sought to challenge the notice provisions for a land
registration proceeding in which he had not made himself a party,
although he had notice of the proceedings, and even though "his
interest in the land would remain unaffected" if the act were
subsequently declared unconstitutional); Gange Lumber Co. v.
Rowley, 326 U. S. 295 ; Alabama Power Co. v. Ickes, 302 U.
S. 464 , 302 U. S.
478 -480; cf. McCabe v. Atchison, T. & S.F. R.
Co., 235 U. S. 151 , 235 U. S.
162 -164 (four Negroes who sought to enjoin enforcement
of discriminatory state action denied relief on the ground that
they failed to allege that they themselves had suffered, or were
about to suffer, discriminatory treatment for which there was no
adequate remedy at law). And compare Doremus v. Board of
Education, supra, with Illinois ex rel. McCollum v. Board of
Education, 333 U. S. 203 , 333 U. S. 206 , 333 U. S.
234 .

															[ Footnote 4 ] Cf. Goldstein v. United States, 316 U.
S. 114 ; Hale v. Henkel, 201 U. S.
43 , 201 U. S. 69 -70,
and the lower court cases which restrict to the person whose
premises were invaded the right to have illegally seized evidence
excluded. The rights in these cases are obviously closely linked to
the person of the individual.

															MR. CHIEF JUSTICE VINSON, dissenting.

															This case, we are told, is "unique." I agree with the
characterization. The Court, by a unique species of Page 346 U. S. 261 arguments, has developed a unique exception to an otherwise
easily understood doctrine. While I may hope that the majority's
use of "unique" is but another way of saying that the decision
today will be relegated to its precise facts tomorrow, I must voice
my dissent.

															The majority seems to recognize, albeit ignore, a proposition
which I thought was made plain in the Shelley case.
[ Footnote 2/1 ] That proposition is
this: these racial restrictive covenants, whatever we may think of
them, are not legal nullities so far as any doctrine of federal law
is concerned; it is not unlawful to make them; it is not unlawful
to enforce them unless the method by which they are enforced in
some way contravenes the Federal Constitution or a federal
statute.

															Thus, in the Shelley case, it was not the covenants
which were struck down, but judicial enforcement of them against
Negro vendees. The question which we decided was simply whether a
state court could decree the ouster of Negroes from property which
they had purchased and which they were enjoying. We held that it
could not. We held that such judicial action, which operated
directly against the Negro petitioners and deprived them of their
right to enjoy their property solely because of their race, was
state action and constituted a denial of "equal protection."
[ Footnote 2/2 ] Page 346 U. S. 262 This case is different.

															The majority identifies no non-Caucasian who has been injured or
could be injured if damages are assessed against respondent for
breaching the promise which she willingly and voluntarily made to
petitioners, a promise which neither the federal law nor the
Constitution proscribes. Indeed, the non-Caucasian occupants of the
property involved in this case will continue their occupancy
undisturbed, regardless of the outcome of the suit. The state court
was asked to do nothing which would impair their rights or their
enjoyment of the property.

															The plain, admitted fact that there is no identifiable
non-Caucasian before this Court who will be denied any right to
buy, occupy or otherwise enjoy the properties involved in this
lawsuit, or any other particular properties, is decisive to me. It
means that the constitutional defect, present in the Shelley case, is removed from this case. It means that
this Court has no power to deal with the constitutional issue which
respondent seeks to inject in this litigation as a defense to her
breach of contract. It means that the covenant, valid on its face,
can be enforced between the parties -- unless California law or
California policy forbids its enforcement -- without running afoul
of any doctrine ever promulgated by this Court, without any
interference from this Court. Page 346 U. S. 263 I turn, first, to the matter of our power to decide this case.
The majority states the issue:

															". . . May respondent, whom petitioners seek to coerce by an
action to pay damages for her failure to honor her restrictive
covenant, rely on the invasion of the rights of others in her
defense to this action?"

															Logically, this issue should be met where such an issue is
usually met -- at the "threshold"; [ Footnote 2/3 ] this decision should precede any
discussion of the merits of respondent's constitutional claim. Yet
it is not amiss to point out that the majority has failed to put
first things first; it decides the merits and then, comforted by
its decision on the merits, resolves its doubts that it has power
to decide the merits.

															A line of decisions -- long enough to warrant the respect of
even the most hardened skeptic of the strength of stare
decisis as an effective limitation upon this Court's exercise
of jurisdiction in constitutional cases -- establishes the
principle [ Footnote 2/4 ] which
should stay this Court from deciding Page 346 U. S. 264 what it decides today -- from doing what it does today -- from
imposing a novel constitutional limitation upon the power of the
courts of the several states to enforce their own contract laws as
they choose. This deep-rooted, vital doctrine demands that the
Court refrain from deciding a constitutional issue until it has a
party before it was has standing to raise the issue. [ Footnote 2/5 ] The majority agrees that this
is a "salutary" principle, and supplies us with but a small
sampling of the cases to show that it has been rigorously applied
in many varied situations, and surely no sophistry is required to
apply it to this case. Accordingly, respondent must show, at the
outset, that she, herself, and not some unnamed person in an Page 346 U. S. 265 amorphous class, is the victim of the unconstitutional
discrimination of which she complains. [ Footnote 2/6 ]

															Respondent makes no such showing. She does not ask the Court to
protect her own constitutional rights, nor even the rights of the
persons who now occupy her property. Instead, she asks the Court to
protect the rights of those non-Caucasians -- whoever they may be
-- who might, at some point, be prospective vendees of some other
property encumbered by some other similar covenant. Had respondent
failed to designate herself as the agent of this anonymous,
amorphous class, the majority certainly would have no power to
vindicate its rights. Yet, because respondent happens to have
decided to act as the self-appointed agent of these principals whom
she cannot identify -- in order to relieve herself of the
obligations of her own covenant -- the majority finds itself able
to assert Page 346 U. S. 266 the power over state courts which it asserts today. I do not
think that such tenuous circumstances can spawn the broad
constitutional limitation upon state courts which springs from
today's decision. [ Footnote
2/7 ]

															Yet we are told that the rule which restricts our power to
impose this constitutional limitation is but a rule of
"self-restraint." So is every other jurisdictional limitation which
depends, in the last analysis, solely upon this Court's willingness
to govern its own exercise of power. And certainly to characterize
the rule as self-imposed does not mean that it is self-removable by
a simple self-serving process of argument. Yet the majority's
logic, reduced to its barest outlines, seems to proceed in that
fashion. We are told that the reasons for the self-imposed rule,
which precludes us from reaching the merits, have been dissipated
in this case, but the only reason why the reasons do not exist is
because the Court first holds for respondent, and, having thus
decided the merits, it feels free to abandon the rule which should
preclude it from reaching the merits. In my view, respondent
cannot Page 346 U. S. 267 surmount the hurdle of our well established rule by proceeding
with an argument which carries her in a circle right back to her
precise point of departure. If it should be, as the majority
assumes, that there is no other way that the rights of unidentified
non-Caucasians can be vindicated in court, that is only an
admission that there is no way in which a substantial case or
controversy can be predicated upon the right which the majority is
so anxious to pass upon. I cannot assent to a manner of vindicating
the constitutional rights of persons unknown, which puts personal
predisposition in a paramount position over well established
proscriptions on power.

															But even if the merits are to be reached, even if we must decide
whether enforcement of this covenant in a lawsuit of this kind is
state action which contravenes the Fourteenth Amendment, I think
that the absence of any direct injury to any identifiable
non-Caucasian is decisive. The Shelley case, resting on
the express determination that restrictive covenants are valid
between the parties, dealt only with a state court's attempt to
enforce them directly against innocent third parties whose right to
enjoy their property would suffer immediate harm.

															In this case, the plaintiffs have not sought such relief. The
suit is directed against the very person whose solemn promise
helped to bring the covenant into existence. The plaintiffs ask
only that respondent do what she in turn had a right to ask of
plaintiffs -- indemnify plaintiffs for the bringing about of an
event which she recognized would cause injury to the plaintiffs. We
need not concern ourselves now with any question of whether this
injury is fancied or real. The short of that matter is that the
parties thought that any influx of non-Caucasian neighbors would
impair their enjoyment of their properties, and, whether right or
wrong, each had the right to control the use of his property
against that event, and to exact a promise from his or her neighbor
that he or Page 346 U. S. 268 she would act accordingly. And that is precisely what
petitioners and respondent did. Moreover, we must, at this pleading
stage of the case, accept it as a fact that respondent has thus far
profited from the execution of this bargain; observance of the
covenant by petitioners raised the value of respondent's
properties. By this suit, the plaintiffs sought only to have
respondent disgorge that which was gained at the expense of
depreciation in her neighbors' property.

															The majority speaks of this as an attempt to "coerce" respondent
to continue to abide by her agreement. Yet the contract has already
been breached. The non-Caucasians are in undisturbed occupancy.
Furthermore, the respondent consented to the "coercion" -- if
"coercion" there be -- by entering into the covenant. Plaintiffs
ask only that respondent now pay what she legally obligated herself
to pay for an injury which she recognized would occur if she did
what she did.

															Of course, there may be other elements of coercion. Coercion
might result on the minds of some Caucasian property owners who
have signed a covenant such as this, for they may now feel an
economic compulsion to abide by their agreements. But visiting
coercion upon the minds of some unidentified Caucasian property
owners is not at all the state action which was condemned in the Shelley case. In that case, the state court had directed
"the full coercive power of government" against the Negro
petitioners -- forcefully removing them from their property because
they fell in a class discriminatorily defined. But, in this case,
where no identifiable third person can be directly injured if
respondent is made to disgorge enough to indemnify petitioners, the
Court should not undertake to hold that the Fourteenth Amendment
stands as a bar to the state court's enforcement of its contract
law. Page 346 U. S. 269 Obviously we can only interfere in this case if the Fourteenth
Amendment compels us to do so, for that is the only basis upon
which respondent seeks to sustain her defense. While we are limited
to enforcement of the Fourteenth Amendment, the state courts are
not; they may decline to recognize the covenants for other reasons.
Since we must rest our decision on the Constitution alone, we must
set aside predilections on social policy and adhere to the settled
rules which restrict the exercise of our power of judicial review
-- remembering that the only restraint upon this power is our own
sense of self-restraint. [ Footnote
2/8 ]

															Because I cannot see how respondent can avail herself of the
Fourteenth Amendment rights of total strangers -- the only rights
which she has chosen to assert -- and since I cannot see how the
Court can find that those rights would be impaired in this
particular case by requiring respondent to pay petitioners for the
injury which she recognizes that she has brought upon them, I am
unwilling to join the Court in today's decision.

															[ Footnote 2/1 ] Shelley v. Kraemer, 334 U. S. 1 (1949).

															[ Footnote 2/2 ]

															The state action which we struck down was epitomized in this
language, 334 U.S. at 334 U. S. 19 :

															"We have no doubt that there has been state action in these
cases in the full and complete sense of the phrase. The undisputed
facts disclose that petitioners were willing purchasers of
properties upon which they desired to establish homes. The owners
of the properties were willing sellers; and contracts of sale were
accordingly consummated. It is clear that, but for the active
intervention of the state courts, supported by the full panoply of
state power, petitioners would have been free to occupy the
properties in question without restraint."

															"These are not cases, as has been suggested, in which the States
have merely abstained from action, leaving private individuals free
to impose such discriminations as they see fit. Rather, these are
cases in which the States have made available to such individuals
the full coercive power of government to deny to petitioners, on
the grounds of race or color, the enjoyment of property rights in
premises which petitioners are willing and financially able to
acquire and which the grantors are willing to sell. . . ."

															[ Footnote 2/3 ] Compare Montgomery Building & Construction Trades
Council v. Ledbetter Erection Co., 344 U.
S. 178 , 344 U. S. 179 (1952); United Public Workers v. Mitchell, 330 U. S.
75 , 330 U. S. 86 (1947).

															[ Footnote 2/4 ]

															The principle derives, of course, from the nature of the
judicial power conferred by Art. III of the Constitution. At a very
early stage in this Court's history, Chief Justice Marshall put the
matter thus:

															". . . The article does not extend the judicial power to every
violation of the constitution which may possibly take place, but to
'a case in law or equity' in which a right, under such law, is
asserted in a Court of justice. If the question cannot be brought
into a Court, then there is no case in law or equity, and no
jurisdiction is given by the words of the article. . . ." Cohens v.
Virginia , 6 Wheat. 264, 19 U. S. 405 (1821). And see the discussion of this principle and its
ramifications in Mr. Justice Brandeis' concurring opinion in Ashwander v. Tennessee Valley Authority, 297 U.
S. 288 , 297 U. S. 341 (1936).

															[ Footnote 2/5 ]

															MR. JUSTICE FRANKFURTER, concurring in Coleman v.
Miller, 307 U. S. 433 , 307 U. S. 461 (1939), sets forth the basis of the principle which I believe the
Court has failed to observe today:

															"In endowing this Court with 'judicial Power' the Constitution
presupposed an historic content for that phrase and relied on
assumption by the judiciary of authority only over issues which are
appropriate for disposition by judges. . . ."

															" * * * *" ". . . It is our ultimate responsibility to determine who may
invoke our judgment and under what circumstances. . . . The scope
and consequences of our doctrine of judicial review over executive
and legislative action should make us observe fastidiously the
bounds of the litigious process within which we are confined. No
matter how seriously infringement of the Constitution may be called
into question, this is not the tribunal for its challenge except by
those who have some specialized interest of their own to vindicate,
apart from a political concern which belongs to all. Stearns v.
Wood, 236 U. S. 75 ; Fairchild v.
Hughes, 258 U. S. 126 ."

															" * * * *" "We can only adjudicate an issue as to which there is a claimant
before us who has a special, individualized stake in it. One who is
merely the self-constituted spokesman of a constitutional point of
view can not ask us to pass on it. . . ."

															[ Footnote 2/6 ] Tyler v. Judges of the Court of Registration, 179 U. S. 405 (1900), while not the first, is generally cited as the leading case
on this aspect of the rules governing our exercise of jurisdiction.
The Court said:

															"The prime object of all litigation is to establish a right
asserted by the plaintiff or to sustain a defense set up by the
party pursued. Save in a few instances where, by statute or the
settled practice of the courts, the plaintiff is permitted to sue
for the benefit of another, he is bound to show an interest in the
suit personal to himself, and even in a proceeding which he
prosecutes for the benefit of the public, as, for example, in cases
of nuisance, he must generally aver an injury peculiar to himself,
as distinguished from the great body of his fellow citizens."

															179 U.S. at 179 U. S. 406 .
This historic view has been voiced again and again and applied in
various situations down through the decades. See, e.g.,
Lampasas v. Bell, 180 U. S. 276 (1901); Cronin v. Adams, 192 U. S. 108 (1904); The Winnebago, 205 U. S. 354 (1907); Rosenthal v. New York, 226 U.
S. 260 (1912); McCabe v. Atchison, T. & S.R. R.
Co., 235 U. S. 151 (1914); Jeffrey Manufacturing Co. v. Blagg, 235 U.
S. 571 (1915); Sprout v. City of South Bend, 277 U. S. 163 (1928); Tileston v. Ullman, 318 U. S.
44 (1943); Gange Lumber Co. v. Rowley, 326 U. S. 295 (1945); Bode v. Barrett, 344 U. S. 583 (1953).

															[ Footnote 2/7 ]

															Similarly, I think that respondent's reliance, in her brief, on Buchanan v. Warley, 245 U. S. 60 (1917), as a precedent to show that she has met the minimum
requirements on standing, is misplaced. In that case, a white
vendor attacked a zoning ordinance which prohibited the sale of his
property to any Negroes. The Court held he had standing to attack
the ordinance, since his constitutional attack was founded on the
theory that the ordinance unconstitutionally abridged his right to
sell his property to any willing purchaser, and not on the theory
that it abridged the Negro vendee's right to buy property without
being subject to discrimination by the state. The Court then held
the statute invalid as an unreasonable classification.

															Similarly, in Pierce v. Society of Sisters, 268 U. S. 510 (1925), upon which the majority relies, a private school challenged
a state law forbidding private education on the theory that the
statute unreasonably abridged its (the school's) property rights.
It was the assertion of the school's property rights which the
Court considered in determining the validity of the statute.

															[ Footnote 2/8 ] See Mr. Justice Stone dissenting in United States
v. Butler, 297 U. S. 1 , 297 U. S. 78 -79
(1936).

Summary: In Barrows v. Jackson, the Supreme Court ruled that a state court's enforcement of a covenant prohibiting non-Caucasians from using and occupying real estate violates the Fourteenth Amendment. The Court held that such an action constitutes state action and deprives non-Caucasians of equal protection under the law. The Court also addressed standing, finding that the respondent, sued for damages for breach of the covenant, had a direct and personal stake in the case. The Court further clarified that the right to equal protection is guaranteed to individuals, not groups, and that the state's refusal to enforce the covenant does not violate the Constitution's contract clause or deprive the covenantors of due process or equal protection.