Real Estate has Height

Real Estate has Height

  Was the airspace under our noses idly waiting exploitation by drones as a new frontier?, or did this space vest with title to the lands?  The presumption that airspace -which has been occupied for centuries- is nobodies property (res nullis), denies national sovereignty, countless statues, many State and the U.S. Constitutions, 200 years of jurisprudence, and common sense.  Asserting domain over the space under our noses disregards existing uses, and preemptive rights, both of which have been recognized by the U.S. judiciary for almost two century.  Regardless of how the space above public lands may be utilized, the presumption that all space above private property has been mystically transformed into a public thoroughfare for drones disregards property law and “recognized concepts of real property rights”[1].  Granted title, and associated interests, cannot be covertly transferred or ‘taken’ without violating title holders’ due process rights.  Existing property rights cannot be preemptively usurped by technological advancements.[2]  Finally, it is illogical to interpret the FAA’s refusal to incorporate drones into the existing public navigable easement above 400 feet, as having granted the FAA discretionary authority to commit property -held in the private domain- to public use.[3]  Statutes and laws recognize ‘real’ property includes occupancy of airspace[4].


Deeds record property title in two dimensions using meets and bounds defined on the earth’s surface.  However, these maps and ledgers are not the ‘real’ property vested with title.  Property must be three dimensions before it becomes tangible, or ‘real’.  Geometrically, two axis denote a ‘plane’; a theoretical construct which has no weight or mass.  Therefore, a plane is not a tangible asset; a two-axis plane is not ‘real’ property.  Property must have a vertical axis in order to become real estate.  Without this third dimension, real estate and all associated rights, laws, and financial values would be imaginary, theoretical, and meaningless.  The Property Clause[5] of the Constitution would be meaningless if the area under congressional authority was only conceptual or theoretical; or if the transfer of federal property was a meaningless and worthless contract.  Federal Land management agencies[6] jurisdiction would be a mere nullity, if the boundaries of National Parks and Forests had no vertical dimension, and therefore encompassed nothing.  One must ignore existing laws, numerous statutes, property title and all associated rights, before once can be deluded by the fallacy that airspace is a new frontier for exploitation by drones.  That Drone manufacturers successfully marketed this delusion to drone customers, does not create a presumptive right that usurps property rights, national boundaries and centuries of jurisprudence.  

Long before the advent of air travel, the judiciary recognized that domain of the space above lands vests with title to the lands below.[7]  In the U.S. this legal concept derived from common law ‘Whoever owns the soil, owns property that extends both up to Heaven and down to Hell’[8].  Boundaries among nations are delineated by points on the ground, with a vertical boundary for national sovereignty demarked by the Kármán line at an altitude of 100Km (62 miles) above the ground.[9]  The United States declared sovereignty over all airspace above the “territorial United States.”[10] proving that airspace is defined by terrestrial boundaries, not the wind or air.[11] 

Under the Property Clause of the Constitution, the U.S. established the Land Grant Office to disposed of real property[12], which transferred property title to private entities.   The law has always recognized domain across lower altitudes vests with this transfer of property title, and not the wind, water, or air itself; under common law ‘land’ includes the space above it:  

“for [air] is a moveable wandering thing, and must of necessity continue common by the law of nature; so that I can only have a temporary usufructory property therein. But the land, which [air] covers is permanent, fixed, and immoveable: and therefore in this I may have certain substantial property; of which the law will take notice, and not the other. The word ‘land’ includes not only the face of the earth, but everything under it, or over it.” .

Blackstone Commentaries, Vol II p.18

Property rights in the airspace accrue with title delineated at ground level, not with the wind, or from thin air.  Therefore, transfer of title by the United States government through land grants, did not transfer national sovereignty into the abyssRather, title transfer to private entities included domain to the airspace, and still subject to U.S. laws

When assessing the vertical boundary for the airspace vested with land grants and property title, the US Supreme Court balanced common law with common sense.  This, by recognizing boundless height to property “has no place in the modern world”[13], while also recognizing that for property ownership to have any meaning or value, property rights must have a vertical dimension.[14]  The altitude at which property rights have since been recognized to remain vested with land ownership has been declared to be 500 feet.[15] Below which both congress and the court recognizes that aircraft flying through this space violates the rights of the title holder below[16].

Even the “right to transit” by aircraft established by Congress above 500ft is defined as an ‘easement’ -which is an interest in property, creating a servitude against title in lands below.  The US Congress declared “a public right of freedom of transit in air commerce through the navigable airspace of the United States”[17].  Both the Courts and Congress recognize, that the airspace below 500ft was not included with the easement for commercial flight, and that such use violates private rights vested with ownership in the land.[18]  Statutes defining the authority of the FAA identify airspace as property and aviation easements for flight as a property interest vested in landownership[19].   Therefore, drones have no ‘freedom to fly’, nor is a liberty interest held by these inanimate objects; rather drone operators hold only a privilege to utilize the easement to the extent the servitude exists against the real estate, or nation defined by terrestrial boundaries.

Prohibiting aircraft based upon authority defined by the lands below extends beyond private property.  The National Park Service prohibits drones and aircrafts above National Parks.[20]  Temporary Flight Restrictions (TFRs) were placed on drones within ten miles of the 2019 Superbowl in Atlanta, and Washington DC is governed by a Special Flight Rules Area (SFRA) restricting drone within a 15-mile. Both these restrictions are delineated by terrestrial property interests, not domain over the wind.

Whether the FAA has capitulated to drone advocates, or are exploiting confusion by drones to expand their own jurisdiction, the FAA violates obligations under administrative statute and the US Constitution which preserve rights to property, privacy and due process.  F.A.A. jurisdiction was declared by Congress under the Commerce Clause as the authority to regulate aircraft, congress did not grant the FAA absolute domain over airspace down to ground level.  While FAA authority may include regulating aircraft at low altitudes under the authority of the Commerce Clause, “it does not follow that [this space] are also subject to a public right of access.” [Kaiser Aetna v. United States, 444 US 164,173-4 (1979)].  Further, technology advancements in the capability of aircraft does not expand the public easement or navigational servitude, for transit by more modern aircraft. [Montana LLP v Montana 132 US 1215, 1233-4, (2012)].  Congress declared this Federal authority to regulate aircraft is predicated upon jurisdiction similar to authority held by the US Coast Guard over water-crafts on the navigable seas; which is unlike the broad discretionary authority of the National Park Service over real property (National Parks), recognized under the Property Clause.  Therefore, FAA regulatory jurisdiction over air-crafts, cannot be presumed to grant the FAA discretionary authority over real property vested with title to lands below, which includes all the airspace under 400 feet.   

Rights, property, and sovereignty are neither nullified, nor created out of thin air.  The presumptive assertion that all airspace is res nullis (nobodies thing), has never, and does not now, comport with property law, relevant statutes, nor two centuries of jurisprudence.  Presumptive assertions made by drone advocates from hovering pedestal, requires more scrutiny, and cannot covertly usurp existing property rights and interests, without denying landowners’ (private, municipal or State ) rights to due process. 

[1] Batten v. United States, 306 F. 2d 580,585 10th (1962)

[2]  PPL Montana v Montana 132 US 1215,1234 (2012) Capability of present-day craft made possible by technology advancements does not usurp existing property title or lesson associated rights.

[3] Kaiser Aetna v. United States, 444 US 164,173-4 (1979)  Federal authority originating under the Commerce Clause cannot be presumed to mean the space or area is “also subject to a public right of access.”

[4] 49 U.S.C. § 4011026, defining airspace as property; and 26CFR § 1.856-10, (d) & (f), use of space is ‘real’ property.  

[5] US Constitution IV, Article 2,   “Congress shall have the power to dispose of and make all needful Rules and Regulations respecting the Territory or other Property belonging to the United States”.

[6] The US Forest Service, National Park Service and Bureau of land Management.

[7]  Portsmouth v U.S, 260 U.S. 327 (firing cannonballs over private property is an appropriation of said property) . Even when the “space” is occupied by water “title necessarily carries with it control over the waters above them whenever the lands are subjected to use.”  Illinois Central v. Illinois, 146 US 387 @452 – US Supreme Court 1892

[8] ‘Cuius est solum, eius est usque ad coelum et ad inferos’ W, Blackstone Commentaries (1765), Bury v. Pope, Cro. Eliz. 118 [78 Eng. Rep. 375] (1587), Baron Bernstein of Leigh v Skyviews and General Ltd [1978] QB 479: quoting Bouvé, Private Ownership of Airspace, 1 Air Law Rev. 232, 246–248,see also Corpus Juris Civilis, Accursius

[9] Fédération Aéronautique Internationale is the international body defining the boundary of ‘space’.  While the US Air Force and NASA define the limit to be 50 miles (80 kilometres) above sea level. 

[10] Section 6(a) of the Air Commerce Act of 1926, Pub. L. No. 69-254, 44 Stat. 568, 572, as amended by the Civil Aeronautics Act of 1938, Pub. L. No. 75-706, 52 Stat. 973,  codified at 49 USC § 176 (a) (1940)  

[11] 19 CFR 122.49b for purposes of national security ‘Territorial Airspace of the United States’ means the airspace over the United States, its territories, and possessions, and the airspace over the territorial waters.

[12] IV: Property Clause: “The Congress shall have power to dispose of… Property belonging to the United States”

[13] United States v. Causby 328 U.S. 256 (1946). Ending the concept of a vertically boundless property right based upon fixed points and lines on a spinning world extending upward indefinitely.        

[14]US v Causby, 328 U.S. 256, 264, (1946).(“if the landowner is to have full enjoyment of the land, he must have exclusive control of the immediate reaches of the enveloping atmosphere. Otherwise, buildings could not be erected, trees could not be planted, and even fences could not be run” …“The fact that he does not occupy [space] in a physical sense — by the erection of buildings and the like — is not material. As we have said, the flight of airplanes, which skim the surface but do not touch it, is as much an appropriation of the use of the land as a more conventional entry upon it.”)

[15] Griggs v Allegheny 369 US 84 supra (1962) @note#1; see Aaron v. United States, 311 F.2d 798, 801 Ct. Cl. (1963); Brown v United States 3 F.3d 1100 Ct Cl. (1996). 

[16] Griggs v. Allegheny County, 369 US 84,89 supra (1962) (“We see no difference between its responsibility for the air easements necessary for operation of the airport and its responsibility for the land on which the runways were built. Nor did the Congress…see 49 U. S. C. § 1109 for the payment of project costs,’ including the ‘costs of acquiring land or interests therein or easements through or other interests in air space.’ § 1112 “)

[17] codified in 1940 as 49 USC § 1304; which remains in the current statutes see 49 USC§ 40103.a.2. 

[19] 49 U.S.C § 40110,  Adams v. United States, 230 Ct. Cl. 628 (Ct. Cl. 1982) ]

[20]June 19,2014, Policy Memorandum 14-05, The NPS prohibits drone flight over National Parks under 36 CFR 1.5.

Airspace is Property; a Legal History

Airspace is Property; a Legal History

The altitude at which property title -defined by points on the earths service- gives way to an areal easement for overhead flight.

  • At common law, he who owns the soil, owns up to the heavens.[1]  {“Cujus est solum, ejus est usque ad coelum, is the maxim of the law, upwards; therefore no man may erect any building, or the like, to overhang another’s land: … the word “land” includes not only the face of the earth, but every thing under it, or over it.” Blackstone Commentaries Vol,2 Bk 2 p18}.
  • The concept that property ownership -defined by points on the earth’s surface- extends boundlessly upward remained unchallenged for a mellenium, until the advent of flight in 1903.  After which, rapid growth in demand for air travel, commerce needs, pressure over property concerns, and international pressure[2] forced the U.S. Congress to Act and declare a public easement for air-travel at higher altitudes above US territorial bounds.
  •  Federal authority to control air-travel was premised upon maritime laws, and the Commerce Clause.  Congress likened federal authority over navigable airspace to their authority over navigable waters.[3] 
    • Federal authority to control areal navigation and establish a public right-of-way was declared under the Commerce Clause, and importantly not the Property Clause, of the US Constitution.
    • The distinction allowed for regulation of air-commerce and aircrafts and importantly not deliniated by real property.
    • It is well established that Federal jurisdiction over commerce is absolute. However, such authority does not create a public right of access to property vested with title.

      see :Kaiser Aetna v. United States, 444 U. S. 16 4, 179-180 S.Ct (1979)

    • Therefore the existence of federal authority to control flight as an element of commerce does not diminish, nor can it presume to diminish, property title or existing property rights without first providing for due process and just compensation as safeguarded by the Vth Amendment of the US Constitution.
  • In 1926, Congress passed the Air Commerce Act under authority derived from the Commerce Clause. see US v. Causby 328 U.S. 256, (1946) note 1a, 2a
  • The 1926 Act provided for “a public right of freedom of transit in air commerce[4] through the navigable airspace of the United States”, codified in 1940 as 49 USC § 1304; which remains under the statutes in 2016. see 49 USC§ 40103.a.2. see US v. Causby 328 U.S. 256, (1946) note 1a, 2a
  • The 1926 Act had also wrongly asserted Federal possession of all airspace above the United States.  The Act stated :”The United States of America is declared to possess and exercise complete and exclusive national sovereignty in the airspace above the United States[5].   This erroneous claim was ultimately repealed.
  • The Federal assertion of “possession” to all the airspace down to ground level was reviewed, then rejected, by the US Supreme Court in United States v. Causby, 328 US 266 (1946).   [Airspace had already been granted with title to landowners, and congress could not declare to possess this space without violating the US constitution which preserves privacy, property and due process rights]
  • A review of the holdings in U.S. v Causby 328 U.S. 256 (1946) and Causby v U.S. 75 F.262 Ct.Cl (1948)  is provided below:
    • As the plaintiff, the U.S. government claimed to still posses all airspace, arguing that US land grants excluded any interest in the space above private lands. id 260
    • The Court disagreed.  The Court held that low altitude flights to be a direct invasion of [a landowner’s] domain”)id 260
    • The Court found legal precedence in Portsmouth Harbor v. United States, 260 US 327, 229, (1922) (firing cannon balls over private land institutes an implied servitude over the property).  [see many citations at footnotes 9, 10 and 11.]
    • The Court had rejected the Federal Government’s assertion to ‘possess’, and have exclusive control, over all the airspace down to ground level.  The landowner was awarded compensation for the airspace taken when the federal government authorized flights over his property at hights between 85 and 365 ft. id 260
    • The court also rejected the landowner’s claim that all rights to property extend indefinitely upward; ending the ad coelum doctrine in the U.S.. id 261
    • The Court recognized that Congress nullified the concept that property rights had no vertical boundary by authorizing a right-of-way through the “navigable” airspace@260-261.  This, while also recognizing this public right does not extend down to ground level . id 263-271.
    • The Causby Court memorialized a public right of transit at altitudes above 365feet.  The Court added it would “question the validity of the regulation” had the minimum altitude invaded the privately held property below the altitude of 365ft. id
    • The Court ruled:“it is obvious that, if the landowner is to have full enjoyment of the land, he must have exclusive control of the immediate reaches of the enveloping atmosphere. Otherwise buildings could not be erected, trees could not be planted, and even fences could not be run.” id
    • The presence of a ‘structure’ or a ‘person’ was not required for the landowner to retain domain over this private airspace.  The court noting:  “The fact that he does not occupy [the space] in a physical sense — by the erection of buildings and the like — is not material.  As we have said, the flight of airplanes, which skim the surface but do not touch it, is as much an appropriation of the use of the land as a more conventional entry upon it. id 264 {emphasis added}
    • The Court confirmed Deeded land grants include the ‘space’ above earth’s surface, i.e. that property is three dimensional.  Although property laws are often predicated on state laws, the Causby Court held “[t]he meaning of ‘property’ as used in the Fifth Amendment was a federal question” id 264.  This ended any need for a state-by-state review as to the lowest altitude which vests with deeded title to lands.
    • The Court added that: “The airspace, apart from the immediate reaches above the land, is part of the public domain. … “We need not determine at this time what those precise limits are.” id.   Finding both that the public domain exists above 365 ft, but that that public domain does not extend down to ground level.
    • The Court ultimately held that a “servitude ha[d] been imposed upon the land” by allowing overhead flights below 365ft. id 267 .
    • The Court of Claims defined the property interest that had been taken from the landowner, “as the right to fly [] planes through the airspace over plaintiffs’ property at altitudes between 83 feet and 365 feet above the surface of the ground.” Causby v. U.S., 75 F. 262, 261 Ct. Claims. (1948).
    • The Court did not grant the landowner compensation below 83 feet because not flights were taken below that altitude.
    • Compensation was not granted for flights above the altitude of 365 feet. The Court recognized a public right-of-way burdens property title above 365ft. adding “The result of [the US Supreme court ruling] is to vest in the United States the right to fly its airplanes at any altitude above 365 feet with impunity.” id 264 Causby v. U.S., 75 F. 262, 264 Ct. Claims. (1948).
  • The findings in  US v Causby was twofold. First, the rejection of the Federal assertion to “possess”  all airspace above the United States down to ground level.  Secondly, it rejected the common law doctrine that property ownership extends indefinitely upward; thereby recognizing the right of air transit above the altitude of 365 feet above private lands.  The Court established that real property has height while also recognizing a vertical boundary to property ownership.
  • Between 1949 and 1956, the Courts expounded on the extent to which property in airspace vested with title to land by repeatedly providing landowners compensation when a Federal agency allowed public use of landowners’ private airspace. see United States v. 48.10 Acres 144 F.Supp. 258 (1956),S. v. 4.43 Acres, 137 F. Supp. 567(1956), U.S. v. Theimer, 199 F. 2d 501(1952).
  • The Federal Aviation Act of 1958, modified the altitude at which title was burdened by the public easement for air travel, repealing the federal popossessory claim to all the airspace down to ground level. see FAA 1958, section.301.
  • The 1958 Act recognized that airspace is property and the extent to which property title is burdened by the public’s right of transit or flight.  A review of the 1958 statutory modification follows:
    • The 1958 Act established the Federal Aviation Agency (the FAA)
    • The Act provided the FAA authority to “control use of the navigable airspace of the United States, and guard the safety of air commerce.” see Sec.103(b)(1) {emphasis added}
    • Similarly, the 2016 statute provides that: “The United States Government has exclusive sovereignty of airspace of the United States” 49 USC § 40103(A)(1) {emphasis}.
    • The adjective “above the United States” previously used in the 1929 Act, was replaced with “of the United States”. Above being a relative location; Of being a possessory interest.  The 1929 assertion that the Untied States “possess” the airspace was also removed in the revised 1958 Act[6]
    • These changes in statutory language are not, and cannot be presumed to be, meaningless. They are a result of the US v Causby court ruling and are consistant with Court findings.
    • The Statutory shift from the U.S. government possessing all the airspace, to controlling all flights under the commerce clause, and protecting public sa, comports with the Court rulings, which recognizes that domain over the lower altitudes vests with title to land, not from thin air.[7]
    • Therefore, airspace of the United States, no longer includes, nor can be presumed to include, all the airspace above the territorial United States, becuase ownership of airspace transfered from the US government via land grants.
    • Transfer of a landowers’ possessory property interest in airspace back into the public domain requires just compensation under the U.S. Constitution, article Vth.  
    • The 1958 Act recognized airspace as property and granted the FAA the right to buy, sell and condemn airspace ‘as needed’. 72 stat 741, sec 303C.  But, only to accommodate the take-off and landing of planes.
    • Congress did not grant authority to the FAA to acquire property for any other purpose.  FAA was also financially constrained from taking all airspace. Thefore limiting the scope of Federal authority from aquiring airspace and property.
    • This provision -to compensate landowners for the use of airspace- would have been meaningless had all airspace been subject to a public easement for air travel, or if the FAA had the authority to expand public property interests without providing for ‘just compensation’.
    • Section 101 (24) of 1958 Act defines navigable airspace as: “airspace above the minimum altitudes of flight prescribed by regulations issued under this act, and shall include airspace needed to insure safety in take-off and landing of aircraft.” Section 101 (24) of 1958 72 Stat. 739.   Currently, 49 USC § 1301 (24).
    • “[F]light prescribed by regulations” under the 1958 Act only included commercial airplanes, and cannot be presumed to include types of aircraft not considered in 1958.
    • Expanding the the definition of “aircraft” to include present day use provides no basis to expand what constitutes ‘navigable”. see PPL Montana v Montana
  • In Griggs v. Allegheny, 369 US 84, 89 supra (1962), the US Supreme Court again recognized “the use of land presupposes the use of some of the airspace above it.  Otherwise no home could be built, no tree planted, no fence constructed, no chimney erected”. And, reconfirmed a landowner’s domain includes the lower altitude “airspace”. id
  • After 1958, Courts repeatedly differentiated between unencumbered property in the lower-altitude airspace, with the public servitude which burdens land title at higher altitudes. Through case law and legislation, the lower boundary for this “navigable airspace” was fixed at the altitude of five-hundred feet (500ft). see Griggs v Allegheny 369 US 84 (1962) note#1; with extensive detail in Aaron v. United States, 311 F.2d 798, 801 Ct. Cl. (1963)
  • It is now well settled law that the low-altitude space vests with land title. Therefore, property interests in low-altitude space -within the metes and bounds of any deed- are included with property grants.   (herein the “Private Zone” or “Private Airspace”)
  • North Carolina State Law[8] was memorialized in US v. Causby 328 U.S. 256, 266 (1946). (“ownership of the space above the lands and waters of this State is declared to be vested in the several owners of the surface beneath.” NC Gen Stat § 63-12). Holding that flight by airplanes between the altitude of 83 and 365ft invade the landowners’ domain. id
  • Similarly, Georgia recognizes “that the owner of land has title to and a right to control the airspace above it to a distance of at least 75 feet above his buildings thereon; but we are not here holding that his title to the air space above his land is limited to an altitude of that height.” Chronster v. Atlanta, 99 Ga. 447,449, 108 S.E.2d 731 (1959).
  • The Private Zone below 365 feet is not encumbered by, and cannot be presumed to be encumber by, a public right of transit.[9]  Landowner permission or finical compensation for FAA authorizing such use would be required under the US and State Constitutions.
  • Since 1962, the Court continues to recognize interference with landowner rights when aircraft flew below 500 feet. see Argent v. U.S. 124 F.3rd 1277,1281 (1997) citing many[10]. Brown v United States 3 F.3d 1100 Ct Cl. (1996). also Branning v. U.S., 654 F.2d 88, 97-8 (1981).
  • 49 U.S. Code § 40110[11] provides for the FAA to acquire or dispose of all property, “including airspace”, when necessary for overflights ‘near airports’. This statutory provision would be unnecessary if all airspace above the United States territory remained federal property, and did not vest with title to the lands.  It would be unconstitutionally to interpret this statute as being meaningless, and all space public
  • The FAA even provides a Suggested Template for Avigation Easements[12] used when compensating landowners for having taken and easement in the airspace for use by aircraft.  The template requires property owners to sign over all future building property interests, and waives all future liability from “future types of aircraft” for any potential claim including physical damage to property.  Such easements and provisions would be meaningless had all airspace been within the FAA’s authority or pre-burdened by an easement or servitude for overhead flight.
  • These statutes confirm that the public right to fly does not extend down to ground level.
  • Case law, Governing statutes and Agency procedures acknowledge that the airspace at lower altitudes vests with property title as defined by the two-dimensionsal metes and bounds of a deed to lands.
  • Because public flyover rights are limited to the terms of the original easement outlined by the 1958 Act, any right to fly below 500 feet, or in an aircraft other than a plane, cannot be presumed to preempt the property rights of the landowner.
  • Therefore Drones flying below 400 feet while above private lands violates the constitutionally protected rights of a the landowners.
Continue reading “Airspace is Property; a Legal History”