WHO OWNS THE AIR?

New Zealand Herald, Volume XLVI, Issue 14235, 4 December 1909, Page 5 (Supplement)

WHO OWNS THE AIR?

FLYING MACHINES V. THEORIES. The owner of real estate in fee simple, without restrictions of any kind, has theoretically possession of a pyramidal-shaped property extending to the centre of the earth. It is believed that about 20 miles of this consists of stratified rock, and the rest of gas compressed to the weight and consistency of si eel. No man may tunnel under your land without your permission save by exercising rights of eminent domain. But how about the air'.'

The matter, says a writer in the Philadelphian Inquirer, is now becoming of interest because of the numbers of aeroplanes and airships which are being constructed, aud especially of that form of gliding machine which never rises far from the earth's surface. Has the owner of land rights to the air above him to an unlimited extent? If not, how far do his rights extend - ' These are practical questions which have h:. 1 a few judicial determinations, but not enough to settle the matter. In minor matters, such as the projection of property over a building line or of signs up in ttie air so extending, the courts have been uniform in saying that the rights of the owner of land are paramount and to be protected. But this is all elementary.

Has a man in an airship a right to cross your land against your consent? He may not walk across it, and if he may not fly over it, but dots, what compensation may you legally claim? The books give little light on the subject. In one famous case where target shooting across a vallev took place, where intervening land in the valley was of alien ownership, the.courts held that there was no claim for using the upper stratum of air, but that an action for maintaining a nuisance might lie. This does not help much in the matter in question. It seems likely that the subject will come up at some time in a concrete manner, as wnen an aeroplane falls and injures property beneath or something is dropped to the detriment of those below. But the matter of damage in such cases may be essentially apart from the mere matter of trespass.

The subject has been investigated by a lawyer who conies to the conclusion that a man may not claim rights in the air further than is necessary for himself and the conduct of his business. If he has a nominal claim to that above, he must be content with nominal damages, say six cents for crossing a field, to- collect which would cost many dollars. We are not at all excited over the subject. We are simply interested academically in what is now a theoretical question. If occasion should arise, doubtless legislatures and the courts would intervene to protect such aviators as did no injury to terrestrial rights.