THE GREEN BAG
708
A
CLOSED
CHAPTER
IN
AERITIME
LAW
Being a Pvpcr read before the Bar Association on March 16, 1975 By E. H. A. THE subject of this paper concerns a branch of aeritime law that offers no inducement for investigation save to the student of the development of the law. The practicing lawyer of today is not con fronted with any of the propositions here discussed. It is a closed chapter of our law and as far removed from the domain of the courts today as the question of wager by battle. But although this branch of aeritime law has become obsolete this class of litigation for the space of ten or twelve years consumed much of the attention of the courts and lawyers of this country. It is proposed to discuss the liability of an operator of aerial machines, airships or aircraft of any sort to the property owners over and above whose land he navigates. The earliest case on the subject is the case of Burns v. New York Aerial Naviga tion Company, which was decided in 1936 and is reported in 521 N. Y. 689. The case arose upon demurrer to the petition which alleges that the plaintiff was the owner of a tract of land located in the county of Kings, New York, and the defend ant was the proprietor and owner of an airship which he willfully caused to traverse over and above the land of the plaintiff to the plaintiff's damage in the sum of $10. The trial court sustained the demurrer, but the court of appeals reversed the judgment. In the course of the opinion the court said : — "It is elementary that the owner of real propertv owns the space above the surface and has the same right to its free and unin terrupted use as to the land below. Blackstone (Book 2 p. 18) says 'Land has also in its legal signification an indefinite extent upwards as well as downwards. The word Land includes not only the face of the earth
but everything under it or over it.' Con sequently, as any physical contact, no matter how slight, with the surface of the earth owned by another would be a trespass; it follows that physical contact with the air above the surface is likewise a trespass. "The defendant has submitted no autho rities but has strongly urged that the old notion that the ownership of the soil carried with it ownership of the air above the soil is a fiction which must give way before con siderations of common sense. It has also insisted that this is a case in which by its very nature actual damage is an impossi bility and the courts should not open their doors to a line of litigation that would accomplish nothing. This question while never finally passed upon, has agitated the minds of learned judges for almost two centuries. The authorities are discussed in an J:d text book entitled Pollock on Torts (Am. Ed.) page 423, where it is said: "' It has been doubted whether it is a tres pass to pass over land without touching the soil, as one may in a balloon, or to cause a material object, as shot fired from a gun, to pass over it. Lord Ellenborough thought it was not in itself a trespass to interfere with the column of air superincumbent on the close and that the remedy would be by an action on the case for any actual damage; though he had no difficulty in holding that a man is a trespasser who fires a gun on his own land so that the shot fall on his neigh bor's land. Pickering v. Rudd, 4 Camp. 219. Fifty years later Lord Blackburn inclined to think differently (Kenyon, v. Hart, 6 B. S. 249, 252), and his opinion seems the better. Clearly there can be a wrongful entry on land below the surface, as by mining, and in fact this kind of tres pass is rather prominent in our modern
