The ownership of the airspace over property is vested in the several owners of the lands below. However, this ownership is subject to the statutory right of overflight[i].
The air is generally a public highway and the airspace overhead is part of the public domain[ii]. But, if a landowner is to have full enjoyment of his/her land, s/he must have exclusive control of the immediate reaches of the enveloping atmosphere[iii]. Accordingly, a landowner is protected against intrusions in the airspace immediate and direct as to subtract from the owner’s full enjoyment of the property and to limit his/her exploitation of it[iv].
The rule is that the landowner owns not only as much of the space above the ground as s/he occupies but also as much thereof as s/he may use in connection with the land[v]. However, this right is not fixed. It varies with the varying needs and is coextensive with them[vi].
Thus, a landowner’s property interest in the land extends to the airspace directly over the property, to the extent that the airspace can be used to benefit the underlying land[vii]. The fact that s/he does not occupy it in a physical sense, by the erection of buildings and the like, is not material[viii].
The dividing line between the portion of the airspace in the public domain and the portion protected as an incident of land ownership against invasions by aircraft, is the line delineated by the Federal Aviation Administration as the minimum safe altitude of flight[ix].
The common law stance on the relative rights of the landowner and the aviator to the use of air space above the surface of the earth is that an unprivileged intrusion in the space above the surface of the earth, at whatever height above the surface, is a trespass[x].
An entry above the surface of the earth, in the air space in the possession of another, by a person who is traveling in an aircraft, is privileged if the flight is conducted[xi]:
- for the purpose of travel through the air space or for any other legitimate purpose,
- in a reasonable manner,
- at such a height as not to interfere unreasonably with the possessor’s enjoyment of the surface of the earth and the air space above it, and
- in conformity with such regulations of state and federal aeronautical authorities as are in force in a particular state.
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[xii]. Thus, a temporary invasion of airspace by aircraft over land of another is privileged so long as it does not unreasonably interfere with persons or property on the land[xiii].
Flight by aircraft in the airspace above the land of another is a trespass, only if[xiv]:
- entry into the immediate reaches of the airspace next to the land is involved, and
- entry interferes substantially with the owner’s actual use and enjoyment of his land.
A landowner is entitled to compensation, if the interference caused by the flights is sufficiently direct, sufficiently peculiar, and of sufficient magnitude, to support a conclusion that a taking has occurred[xv].
[i] Drennen v. County of Ventura, 38 Cal. App. 3d 84 (Cal. App. 2d Dist. 1974).
[ii] Lacey v. United States, 219 Ct. Cl. 551 (Ct. Cl. 1979).
[iii] Powell v. United States, 1 Cl. Ct. 669 (Cl. Ct. 1983).
[iv] Hero Lands Co. v. United States, 1 Cl. Ct. 102 (Cl. Ct. 1983).
[v] Newark v. Eastern Airlines, Inc., 159 F. Supp. 750 (D.N.J. 1958).
[vii] Persyn v. United States, 34 Fed. Cl. 187, 195 (Fed. Cl. 1995).
[viii] United States v. Causby, 328 U.S. 256 (U.S. 1946).
[ix] Lacey v. United States, 219 Ct. Cl. 551 (Ct. Cl. 1979).
[x] Guith v. Consumers Power Co., 36 F. Supp. 21 (D. Mich. 1940).
[xii] Long v. Charlotte, 306 N.C. 187 (N.C. 1982).
[xiii] Sneed v. County of Riverside, 218 Cal. App. 2d 205 (Cal. App. 4th Dist. 1963).
[xiv] Drennen v. County of Ventura, 38 Cal. App. 3d 84, 88 (Cal. App. 2d Dist. 1974).
[xv] Twitty v. State, 85 N.C. App. 42, 53 (N.C. Ct. App. 1987).