Real Estate Has Height

  Was the airspace under our nose idly waiting exploitation by drones as a new frontier? or did this space vest with title to the lands below?  The presumption that airspace -which has been occupied for centuries- is nobodies property (res nullis), denies national sovereignty, countless statues, many State’s and the U.S. Constitution, 200 years of jurisprudence, and common sense.  Asserted domain over the space under our noses for use by drones disregards existing uses, and preemptive rights, both of which have been recognized by the U.S. judiciary for almost two centuries.  Regardless of how the space above public lands may be utilized, the presumption that all space above private lands has been mystically transformed into an aerial thoroughfare disregards property law and “recognized concepts of real property rights”[1].  Granted title, and associated interests, cannot be covertly transferred or nefariously taken without violating a title holders’ due process rights.  Existing property rights to the lower altitudes is not preemptively usurped by technological advancements.[2]  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 private property to public use.[3]  Statutes and laws recognize that ‘real’ property includes domain over the physical occupancy of airspace[4].

Deeds record ownership on paper delineated using points on the earth’s surface.  However, these plat maps and deed ledgers are not the ‘real’ property that vests with property title.  Property must be three dimensions, before it becomes tangible, or ‘real’.  Geometrically, two axis denote only a ‘plane’; a theoretical construct, which has no weight or mass.  A plane is not a tangible object. It is neither ‘real’, nor real property.  Property must have a vertical axis (Z) 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 US Constitution would be meaningless if the area under congressional authority and national sovereignty was only conceptual or theoretical; the Constitution cannot be construed as being meaningless. Transfer of property via deeds is not and should not be presumed to be a meaningless or worthless transaction.   Jurisdiction for Federal Land management agencies[6] would be a mere nullity, if the boundaries of National Parks and National Forests had no vertical dimension.  One must ignore existing laws, numerous statutes, property title and all associated rights, before being deluded by the fallacy that airspace is nobodies domain. rather a new frontier for free exploitation by drones.  That Drone manufacturers successfully marketed this delusion to drone customers, did not create a presumptive right for drones to occupy property already under landowner domain. Existing valid rights, national boundaries and centuries of jurisprudence were not usurped when man took flight 100 years ago, and these rights are not magically usurped now by an incremental technological advancement.  

Long before the advent of air travel, the judiciary recognized that domain of the airspace 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].  Even boundaries between nations are delineated by points on the ground, with a vertical boundary for national sovereignty delineated by the Kármán line: 100Km (62 miles) above the ground.[9]  The United States declares sovereignty over all airspace above the “territorial United States”[10], again proving that airspace is defined by terrestrial boundaries, not by the presence of wind, nor created out of thin 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 within US Territory to private entities.  Included with land tile, is domain across the lower altitudes. Airspace vests with the land grant and a valid deed, not the wind, water, or air itself. Common law recognized that ‘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

Domain through airspace accrues with title delineated at ground level extending upward, and not from thin air.  Transfer of property title by the United States government through land grants included domain over the lower atmosphere, while retaining national sovereignty and property being subject to U.S. laws, including limits on federal enumerated powers, rights of privacy and property rights recognized under the U.S. Constitution.

When assessing the height which vests 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 value, property rights must have a vertical dimension.[14]  The altitude at which privacy and exclusivity rights remain vested with land ownership has been established by Courts and Congress to be 500 feet.[15] Below which physical occupancy by aircraft has been found to interfere with a landowner rights[16].

Even the “right to transit” by aircraft established by Congress above 500ft is defined only as an ‘easement’ [an interest in property], or a servitude against title to the 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].  Courts and Congress recognize, that the airspace below 400ft (where drones are allowed) was not included with the public easement established for commercial flight. Instead courts found use of this airspace violates privacy and property rights held by landowners.   FAA administrative statutes identify airspace as property, and identify the need for aviation easements when low-altitude flight over real property is authorized or sanctioned.[19].   Drones have no ‘freedom to fly’, nor do inanimate objects hold a “liberty interest” in the occupancy of space held in the private domain. Drone operators hold only a privilege to utilize the high-altitude public easement, and only if authorized by the FAA. Drones hold no, and cannot presume to hold, a liberty, property, or property interest in the airspace that vests with title to the land below. Inanimate Drones hold no “rights” under the Constitution, and implied rights to occupy airspace cannot be presumed valid.

Controlling aircraft under the Commerce Clause is a Federal function which congress granted to the FAA. However, domain over the use and occupancy of low-altitude airspace remains with title holder of the lands below.  The National Park Service prohibits drones and aircraft 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. These restrictions are delineated by interests in terrestrial property, not domain over the wind. Other than the FAA restricting drones where actual airplanes can fly above 500 ft, these restriction are delineated by property title defined at ground level.

Whether the FAA has capitulated to drone advocates, or are exploiting confusion caused by technological changes in order to to expand their own jurisdiction and power, nefarious property grabs exceed statutory limits on authority based on applicable laws and constitutional limitations[21].  The FAA exceeds its statutory authority and the federal enumerated powers, when it sanctions drone use through airspace outside of its domain.  Authorization of drones through private airspace circumvents statutory obligations which preserve landowner existing rights to property, privacy and due process recognized by applicable laws and the US Constitution.  FAA jurisdiction was declared by Congress under the Commerce Clause as the authority to regulate aircraft, and control over the public easement, congress did not grant the FAA absolute domain over airspace down to ground level.  While the 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.”[22] Further, technology advancements in the capability of aircraft did not expand the public easement or navigational servitude, for transit by more modern aircraft[23].  Congress likened Federal authority over aircraft upon jurisdiction 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 National Parkland recognized under the Property Clause.  FAA regulatory jurisdiction over air-crafts, cannot be presumed to grant the FAA discretionary authority over property which vested in title to lands below.

Rights, property, and sovereignty are neither nullified, nor created out of thin air.  Drone enthusiasts 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 a hovering pedestal, requires more scrutiny. A property interest asserted against a valid deed cannot be presumed valid nor do unsupported claims usurp existing rights to privacy and property recognized uner thed due process clause of the Constitution.

[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 valid rights.

[3] Kaiser Aetna v. United States, 444 US 164,173-4 (1979)  It cannot be presumed that the geographic space under Federal authority originating from the Commerce Clause 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), identifies the use of airspace as an interest in ‘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 vertical limit to be 50 miles (or 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.    [we could all own a star for a brief millisecond?]

[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.

[21] Federal Aviation Administration Re-authorization Act of 2016 sec 2128 8,(B) (Ensure “ that unmanned aircraft system activities are performed in a manner consistent with the Constitution and applicable laws”)

[22] [Kaiser Aetna v. United States, 444 US 164,173-4 (1979)]. 

[23] [Montana LLP v Montana 132 US 1215, 1233-4, (2012)]

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