Airspace is Property; a legal history

The altitude at which title to land gives way to an aerial easement.

  • 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 legal principle that property ownership -defined by points on the earth’s surface- extends boundlessly upward remained settled law, until the advent of flight in 1903.  After which, rapid growth in demand for air commerce 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 aircraft, without consideration of vested property rights.
    • It is well established that Federal jurisdiction over commerce is absolute. However, such authority does not create a public right of access. see :Kaiser Aetna v. US, 444 US 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 be presumed 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 mistakenly 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 possession 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 heights 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 no flight traveled through this airspace.
    • 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 previous 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 consistent with Court findings.
    • The Statutory shift from the U.S. government possessing all the airspace, to regulating all flights under the commerce clause, while retaining national sovereignty comports with the Court rulings, which recognizes that domain over the lower altitudes vests with title to land, is not created 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, because ownership of airspace transferred from the US as sovereign contractually via US land grants.
    • Transfer of a landowners’ possessitory interest in airspace back into the public domain would first require notice then 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. Therefore limiting the scope of Federal authority to acquire property, by ipse dixit,
    • This budgeted 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.

[1] 28 Am. Jur.2d 618,2 Blackstone Commentaries 18(1836). See also, United States v. Causby, 328 U.S. 256,260 261(1946), citing I Coke, Institutes, 19th Ed. 1832, ch. 1, § 1(4a); 2 Blackstone, Commentaries, Lewis Ed. 1902, p. 18; 3 Kent, Commentaries, Gould Ed. 1896, p.621

[2] Paris Convention of 1919 (Convention for the Regulation of Aerial Navigation, Oct. 13, 1919, 11 L.N.T.S. 173) and the Pan American Convention on Commercial Aviation, U.S.-Cuba, Feb. 20, 1928, see 47 Stat. 1901)  .

[3] Branning v. United States, 654 F.2d 88, 97-98 (Ct. Cl. 1981). The House report accompanying the 1926 bill stated: “The provisions of the bill are not unique or unprecedented [and]…are those of the marine navigation laws. This is natural for the reason that air space, with its absence of fixed roads and tracks and aircraft with their ease of maneuver, present as to transportation practical and legal problems similar to those presented by transportation by vessels upon the high seas. The declaration of what constitutes navigable air space is an exercise of the same source of power, the intestate commerce clause, … The public right of flight in the navigable air space owes its source to the same constitutional basis which, under the decisions of the Supreme Court, has given rise to a public easement of navigation in the navigable waters of the United States. H.R.Rep. No. 572, 69th cong., Ist Sess. 9-10 (1926).”

[4] Under the 1926 Act, “as used in this Act, the term ‘air commerce’ means transportation in whole or in part by aircraft of persons or property for hire, navigation of aircraft in furtherance of a business, or navigation of aircraft from one place to another for operation in the conduct of a business.  Pub. L. No. 69-254, § 1, 44 Stat. at 568, codified at 49 U.S.C. § 171 (1940). In the Act of 1938 sec,1(3) defines “Air commerce” means interstate, overseas, or foreign air commerce or the transportation of mail by aircraft or any operation or navigation of aircraft within the limits of any civil airway or any operation or navigation of aircraft which directly affects, or which may

endanger safety in, interstate, overseas, or foreign air commerce.   Which remains current today. 49 USC§ 40102.a.3

[5]  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); repealed 1958.   

[6] Compare 52 Stat. 1028 from 1926 and the current 49 USC § 40103(A)(1).  The 1926 Act declared “to possess … the air space above the United States”, while the current statute is consistent with the court: “The United States Government has exclusive sovereignty of airspace of the United States” 49 USC § 40103(A)(1).  The declaration to ‘possess’ was removed, and the adjective above the U.S. was replaced with of the U.S.

[7] United States v. Causby 328 U.S. 256, 266 (1946) (holding that low altitude flight to be a “direct invasion of respondent’s domain”)

[8] “we are mindful of the basic axiom that `[p]roperty interests . . . are not created by the Constitution. Rather, they are created and their dimensions are defined by existing rules or understandings that stem from an independent source such as state law.’  Preseault v. ICC, 494 US 1,20 supra (1990) citing others

[9] Oliver v. United States, 466 US 170 Supra (1984)  note#15  (“unlicensed use of property by others is preemptively unjustified, as anyone who wishes to use the property is free to bargain for the right to do so with the property owner, cf. R. Posner, Economic Analysis of Law 10-13, 21 (1973). For these reasons, the law of trespass confers protections from intrusion by others far broader than those required by Fourth Amendment interests.”

[10] citing “(Lacey v. United States, 219 Ct.Cl. 551, 595 F.2d 614, 616 (1979) (treating 500 feet as line of demarcation between compensable and non-compensable overflights); Matson v. United States, 145 Ct.Cl. 225, 171 F.Supp. 283, 286 (1959) (providing compensation for flights under 500 feet).Aaron v. United States, 160 Ct.Cl. 295, 311 F.2d 798, 801 (1963) (allowing claims based on flights below 500ft, while denying those based on flights over 500ft).”

[11] Acquisition Authority was introduced after Causby in the Federal Aviation Act of 1958, 72 stat 741, sec 303C.  This provides for acquisition of airspace from surface owners near airports, within imposed financial limitations.

[12]https://www.faa.gov/airports/central/airports_resources/media/RPZeasement.pdf

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