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”. 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. 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. Statutes and laws recognize ‘real’ property includes occupancy of airspace.
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 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 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. 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’. 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. The United States declared sovereignty over all airspace above the “territorial United States.” proving that airspace is defined by terrestrial boundaries, not the wind or air.
Under the Property Clause of the Constitution, the U.S. established the Land Grant Office to disposed of real property, 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 abyss. Rather, 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”, while also recognizing that for property ownership to have any meaning or value, property rights must have a vertical dimension. The altitude at which property rights have since been recognized to remain vested with land ownership has been declared to be 500 feet. Below which both congress and the court recognizes that aircraft flying through this space violates the rights of the title holder below.
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”. 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. Statutes defining the authority of the FAA identify airspace as property and aviation easements for flight as a property interest vested in landownership. 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. 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.
 Batten v. United States, 306 F. 2d 580,585 10th (1962)
 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.
 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.”
 49 U.S.C. § 4011026, defining airspace as property; and 26CFR § 1.856-10, (d) & (f), use of space is ‘real’ property.
 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”.
 The US Forest Service, National Park Service and Bureau of land Management.
 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
 ‘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  QB 479: quoting Bouvé, Private Ownership of Airspace, 1 Air Law Rev. 232, 246–248,see also Corpus Juris Civilis, Accursius
 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.
 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)
 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.
 IV: Property Clause: “The Congress shall have power to dispose of… Property belonging to the United States”
 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.
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.”)
 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).
 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 “)
 codified in 1940 as 49 USC § 1304; which remains in the current statutes see 49 USC§ 40103.a.2.
 49 U.S.C § 40110, Adams v. United States, 230 Ct. Cl. 628 (Ct. Cl. 1982) ]
June 19,2014, Policy Memorandum 14-05, The NPS prohibits drone flight over National Parks under 36 CFR 1.5.