Rights in Airspace and Relative Rights of Surface Proprietors

The landowner has exclusive control of the immediate reaches of the enveloping atmosphere[i], even though the airspace is a public highway[ii].  S/he owns at least as much above the ground as s/he can occupy or use in connection with the land[iii].  The right of an owner of lands extends downward and upward indefinitely[iv].

Thus, flight of an aircraft over land is lawful, unless the flight is at such a low altitude as to interfere with the existing use to which the land is put by the owner, or unless the flight is conducted in a manner imminently dangerous to persons or property lawfully on the land[v].

Any aircraft flying over the land and the structures on the land of another is a trespasser[vi].  However, privileged overflight through public airspace does not constitute a trespass.

A temporary invasion of the air space by aircraft is a privilege.  So long as it does not interfere unreasonably with the possessor’s enjoyment, it is privileged[vii].

Overflights which do not enter the plaintiff’s airspace may still unreasonably interfere with the landowner’s use of the land.  In such a case, the liability will rest upon the basis of nuisance rather than trespass[viii].

A nuisance does not necessarily involve a physical intrusion on the land or an interference with the plaintiff’s possession in the land.

The term navigable airspace means airspace above the minimum safe altitudes of flight prescribed by the Civil Aeronautics Authority[ix].  It also includes airspace needed to insure safety in take-off and landing of aircraft.  An airplane flying within such limits is not a trespasser with respect to the property below, but is privileged to travel this modern highway[x].  Federal Aviation Regulation prescribes a minimum altitude, if the operation is conducted without hazard to persons or property on the surface[xi].

Since, the occupant of the soil is entitled to be free from danger or annoyance by any use of the superincumbent space and for any infringement of this right, s/he may apply to the law for appropriate redress or relief[xii].

A landowner must be compensated for any of his/her property that has been taken or appropriated and declared to be within the public domain of navigable airspace[xiii].

The courts will afford redress to a nuisance, which annoys and disturbs one in the possession of his/her property, rendering its ordinary use or occupation physically uncomfortable to him/her, by giving damages against the wrong-doer[xiv].  When the cause of the annoyance and discomfort are continuous, courts of equity will interfere and restrain the nuisance.

A court of equity possesses jurisdiction to enjoin repeated trespasses on land, as well as to enjoin a nuisance.  The court has power to grant a restraining order preventing actual or threatened trespasses of a continuing and permanent character[xv].

A landowner has a right of action for compensation against the appropriate body or agency.  But that does not purport to affect the status of flying aircraft.  A plane is privileged to fly within navigable airspace without attaching to itself labels wholly inapplicable and unrealistic.

Where planes fly frequently over the land of a property owner, either in interstate or in intra-state commerce, below the minimum safe altitudes of flight and so low or in such manner as to endanger the life or property, they may be enjoined by a state court as unlawful trespasses or as a nuisance.  Also, the usefulness of the property may be injured or destroyed  to such an extent as to amount to a taking, for which an appropriate state or federal court may award damages[xvi].

Further, it is not legally possible to obtain an easement by prescription through the airspace above another’s land[xvii].

[i] United States v. Causby, 328 U.S. 256 (U.S. 1946).

[ii] Cheskov v. Port of Seattle, 55 Wn.2d 416 (Wash. 1960).

[iii] Antonik v. Chamberlain, 81 Ohio App. 465 (Ohio Ct. App., Summit County 1947).

[iv] Thrasher v. Atlanta, 178 Ga. 514 (Ga. 1934).

[v] Brenteson Wholesale v. Arizona Pub. Serv. Co., 166 Ariz. 519 (Ariz. Ct. App. 1990).

[vi] La Com v. Pacific Gas & Electric Co., 132 Cal. App. 2d 114 (Cal. App. 1st Dist. 1955).

[vii] Id.

[viii] Brenteson Wholesale v. Arizona Pub. Serv. Co., 166 Ariz. 519 (Ariz. Ct. App. 1990).

[ix] Antonik v. Chamberlain, 81 Ohio App. 465 (Ohio Ct. App., Summit County 1947).

[x] Mills v. Orcas Power & Light Co., 56 Wn.2d 807 (Wash. 1960).

[xi] 14 CFR 91.119.

[xii] Thrasher v. Atlanta, 178 Ga. 514 (Ga. 1934).

[xiii] Mills v. Orcas Power & Light Co., 56 Wn.2d 807 (Wash. 1960).

[xiv] Swetland v. Curtiss Airports Corp., 55 F.2d 201 (6th Cir. Ohio 1932).

[xv] Gardner v. County of Allegheny, 382 Pa. 88 (Pa. 1955).

[xvi] Id.

[xvii] Hinman v. Pacific Air Transport, 84 F.2d 755 (9th Cir. Cal. 1936).


Inside Rights in Airspace and Relative Rights of Surface Proprietors