Page:Harvard Law Review Volume 32.djvu/607

NOTES 571 damage, need concern the aviator but little. A litigious owner will find it expensive seeking nominal damages, especially where statutes make costs at law discretionary.^^ Further, he will be an ingenious land- owner who can keep the trespassing airplane oflf without seriously endangering the aviator's life; whatever means he employs will be far from reasonable.^2 Then, too, there will be practically no basis for an injunction to prevent the repeated trespasses, since the sum total of the damage would be nominal and the danger of an easement's arising the slightest, when we consider the difficulty of establishing twenty years' ad- verse user of a particular lane at a fixed height as well as within a certain width.i3 If we rigorously apply Coke's maxim, the result is that the law will frown upon the aviator, but unless he causes actual damage it will connive at the formal wrong. This branding of the inoffensive aviator as a tortfeasor, even if only in form, may be an embarrassing annoyance to one who acclaims the elasticity of the common law. Fortunately there are no binding decisions which stamp the aviator a trespasser; and of the cases adopting Coke's maxim unqualifiedly it may be said that the particular situation of a passage by an airplane was not considered. They have, then, only an inferential bearing on our problem, so that the courts may feel free to invoke general principles and practical considera- tions in balancing the interest of the aviator in the unrestrained develop- ment of a beneficial enterprise and that of the landowner in the free use of his superincimibent air space. During the past decade foresighted lawyers have been discussing the problem, and several have ventured a theory upon which the balance should be struck. It has been suggested that although, according to the maxim, the landowner does own the air space up to the heavens, there is also a right of public passage, as long as the enjoyment of the land- owner is not interrupted; a situation similar to the right of passage over navigable rivers privately owned.^^ The similarity, however, is slightly incomplete, for on rivers it is the navigator who is not to be interfered with by the bed-owner; ^^ here, the owner is to be left undisturbed. Another theory construes Coke's maxim as securing to the landowner only a right of user, and maintains that the aviator is within the circle of law-abiding citizens, until he causes actual damage.^^ This doctrine, however, imposes absolute Habihty for any interference with the land- owner's use. A third doctrine asserts that " the scope of possible trespass is limited by that of effective possession," ^^ just as possession is at the basis of pro- i| See Bliss, N. Y. Ann. Code, §§ 3228, 3230 (if the defendant does not dispute plaintiff's ownership). ^ See 36 Law Mag. and Rev. 20. Cf. Corbett v. Hill, 9 Eq. Cas. 671 (1870) (the owner of the soil may build over a window projecting riglitf ully) ; Keats v. Hugo, 115 Mass. 204, 217 (1874) (similarly as to eaves). " Valentine, 22 Juridical Rev. 86, 96; Hazeltine, The Law of the Air, 77. ^ See Gould, Waters, §§ 88-89. " Hazeltine, The Law of the Air, 57; Blewett Lee, 7 Am. Jour, of Int. Law, 474; 51 Solicitor's Journal, 771; Salmond, Law of Torts, 4 ed,, 190; i Wigmore, Select Cases on the Law of Torts, 560. " Pollock, Torts, 10 ed., 363.