Liability of the state for highway traffic noise

The purpose of this paper is to study the extent of the liability of the state for damage attributable to highway noise. The cause of action for noise damage lies either in inverse condemnation or direct condemnation. This paper is divided into two parts. The first deals with the situation where the complaining party was a stranger to the condemnation for highway purposes; and the second relates to the situation where the condemnee in a proceeding to take land for highway purposes seeks damages for diminution in value of the remainder attributable to traffic noise. It is noted that the evolution of the law of liability for noise damage is largely the history of litigation against the railroads for noise damage. By the time the automobile came into common use, the general principle governing liability for noise injury had become firmly established. The rules of law laid down in the railroad cases described in this report can be summarized by stating that noise from the normal operation of a railroad that is shared in common by all abutting property owners is not constitutionally compensable. On the other hand, noise that is not shared in common by all, but is localized and involves a special damage, constitutes compensable injury. If the injury is compensable, it is compensable in a "taking" state or in a "taking or damaging" state. The rules governing liability for noise and highway traffic are very similar to those of railroads and street railways. Normal noise from the movement of traffic that is suffered in common by the general public is not constitutionally compensable. That noise which is localized to a particular piece of property may be constitutionally compensable. In instances where traffic noise is considered as an element of damage in direct condemnation cases, there is ample case law which adheres to the view that traffic noise is not a compensable item of damage where such injury is one suffered in common with other landowners. In Dennison v. State, it was held that noise injury must be compensated because it cannot be separated from other elements of consequential damage. It is concluded that there is, at the present time, no unanimity of judicial opinion or approach on the question where the rules governing general and special damage should be given application to traffic noise when considered as an element of severance damage.