THE NEED FOR AIR LAWS.

Oamaru Mail, Volume XXXVIII, Issue 10488, 22 June 1910, Page 2

THE NEED FOR AIR LAWS.

A JUDGE'S POINT OF VIEW

(By His Honor Judge Parry.) When The Daily Mail announced the prize, now awarded, for a- flight to .Manchester it became my' duty as county court judge of this circuit to rub up my knowledge of the law of the air. It was a minus quantity when I started, and it was not plus much when I finished.

Such as it is, I give it now to my brethren of the county court bench. And it is important I should be allowed to do so, for we judges of the county court are an overworked race, having little time for original research, and are expected to keep up to date in all branches of the law, except perhaps divorce and libel and slander. These spicy and recondite subjects are too difficult for us, and are rightly retained by the High Court judges as their prerogative. Flying being abroad in Manchester, it. behoved me to look up the subject. I had read many ill-informed conjectures about the law of aviation, written no doubt by the younger members of the Bar in those pauses that are said to be incidental to the largest practice. These brilliant essays had not satisfied me that I knew all upon the subject that could be known. With the courage of an aviator I sped by myself into the unknown, and in the interests of others I set down the result ■ of my adveture. The authorities on the subject are few. There is a Latin maxim, "Cujus est solum ejus est usque ad ccelum," which was current in the days of Coke upon Littleton, and which, being translated, means, "He who possesses land possesses also that which is above it." This has led many a suburban tenant to believe that he can obtain an injunction against the hardy aviator spreading his shadow across the domestic tennis, lawn. And then there is an obiter dictum,' almost a Birrellisin in its wit and force, of Lord Chief Justice Ellenborough that shows ns that we must be careful not to press the Latin maxim too heavily, and that it is not to be construed as a charter of the shrinking stay-at-home citizen against the bold bad aviator who goes hurtling over the back gardens "of the world in the search of fame and reward and higher things. Lord Ellenborough was a Protestant and a member of the Northern Circuit, and his surname was Law. Moreover, he appeared for Warren Hastings, Esq., in a famous trial; but more to our purpose is it to remember that he was in our modern tongue a "sportsman," and as far back as 1815 he foresaw that trouble —legal trouble —would arise between the Latin maxim and aviation, and being a rash lawyer and a big man -ho did not hesitate to "obiter dictate" about it, if one may coin the phrase. The case is reported in the fourth volume of Campbell's P.eports, at Page 220.

One Pickering, the plaintiff, was uncommonly annoyed by the umieighborly action of one Rudd, the defendant, in nailing a board which projected a few inches over friend Pickering's freehold. The good Pickering had heard of the "usque and ccelum" maxim, and he wanted his own heavenly ceiling every inch of it to himself. So he started his action, and Lord Chief Justice Ellenborough stated the law of- England on the subject of aviation. "I do not think," he said, "that it is a trespass to interfere with the column of air superincumbent on the close. I once had occasion to rule on circuit that a man who from the outside of a field discharged a gun into it so that the shot must have struck the soil was guilty of breaking and entering it. A very learned judge who went the circuit with me at first doubted the decision, but I believe he afterwards approved of it, and that it met with the general concurrence of those to whom itwas mentioned. Rut- I am by no means prepared to say that firing a gun across a- field in vacuo, no part of the contents touching it; amounts to a clausum fregit. iSay, if this board overhanging the plaintiff's garden be a trespass it would follow that an aeronaut is liable to an action of trespass quare clausum fregit at the suit of the occupier of every field over which the balloon passes in the course of his voyage."

Now, apart from technicalities, what this means is that if Lord Ellenborough is right the aviator can wander about at his own free will as long as lie does no damage to any individual. .The Latin maxim about the owner of the soil owning the air must be' read with an ej-e on the common law right of the aeronaut to pass and repass peaceably along the King's highway of the air as he does along the high road and the high seas. And there is another authority which states that a person standing on his own land and sending a "leaden messenger at game on. the land of another" does not commit a trespass in pursuit of game.

The layman's notion, that -I have seen frequently stated that anyone could obtain an injunction against an aviator flying over his cabbage patch is. I take it, .wholly misconceived. The Latin maxim of the right of air up to the heavens applies only to the lucky owner of the land in any event. Does he lease it to his lessee and does it pass to the domestic tenant■? I should say not. The ordinary householder probably only rents so much of the air and the heavens as he wants for the ordinary domestic uses of drying his clothes, playing lawn tennis, and letting off fireworks on the Fifth of November. It seems quite probable that the ground landlord could in any case make a separate lease of ' the upper strata of the air to aviators if he chose against the will of his tenant, always paying his taxes for any unearned increment of air that thereby accrued. But it seems beyond doubt that in no case will the courts grant an injunction against an aviator who prorjoses to voyage over your laud, for an injunction will only be granted where the lawis clear and whore serious damage is likely to Arise. Neither of those propositions could, it seems, be maintained. So far, then, the law of the air, like the bulk of the common law of ivngland, seems sane enough, -even if it is rather meagre. But what of the future P Are we to wait until a long series of decisions, wasting time and money and temper, have been arrived at, and then to wait again until some alliterative legal genius like Byles on Bills — some Astbtiry on Aviation, say —arises to lick the legal chaos into shape and make sense of it; and then are we to wait for further years until the Government of a fjiture century codifies the law of the air?

Or is there not a better 'course? Should not our ruling powers begin already to. enact an English law of the. air, protecting the pigmies who still labor on the earth's surface from reckless and ignorant aviators and encouraging the science of aviation in. its serious evolution? Seeing, too, that it is bound to be a business of internationnl character, should not there bo an immediate congress of nations to adopt as far as may be similar local permission and restriction of flying, and an international code of all civilised Powers which shall be known as the Law of the Air?