The Fargo forum and daily republican. [volume] (Fargo, N.D.) 1894-1957, 1910-03-01
THE LAW OF THE AIR.

The New York Evening Post dis
cusses the legal phases OF aviation,
as follows:
On the Mexican frontier, the other
day, an aviator few repeatedly from
Eel Paso to Juarez I'm Mexico, and back
again, his object being to show how
powerless custons officers would be
to prevent smuggling by aeroplane
Such a demonstration may well give a
mental Jar to the devotees OF protec-
tive tariffs. They must see how the
very process of invention makes
against their obsolete notions Practi-
cally, we admit II does not seem prob
able that the development of aerial
| transportation on a large commercial
acale could ever lcac to very consider
able evasions CT the customs laws
Certain classes OF goods in limited
quantities could doubtless be brought
in, especially by navigators Of the sky
flying by night but methods Of de-
lection and punishment could be per-
fected IL such offenders multiplied. II
would be necessary, however to regu-
late the whole business os such trans
portation, and to enact q new law OF
the air.
The first steps towards II have al
ready been taken. In last months
Journal Of international Law. Mr.. Ar
thur X. Kuhn of this city had an in
forming article on TIL Beginners of
an Aerial Law. He gathered together
the evidence showing what attention
jurists have been givir.. to the matter,
together with decisions bearing on the
subject already made by judges. At
the Hague conference certain rules
were adopted looking to something
like a code Of war FOR a.rships, while
about a year ago the F. nca govern
ment determined to call an .nterna-
tionsI congress to deal with the legal
problems of navigation through the
air, in time Of peace as well as in war.
And Mr.. Kuhn adduces the names of
several continental authorities who
have published books or pamphlets
dealing with this new branch Of turis-
prudence.
The comic aspects OF the right of
way, etc. in the air have been served
up to us by newspaper humorists. But
there is already a serious side to the
affair, and the need Of having laws on
the subject will PROFESSIONALLY be
There ls, for example. the whole cues
ton Of the law of tresp. as apple
able to balloons and aeroplanes. The
traditional legal idea of title IN land
includes, as Blackstone said, mot only
the face of the earth, but everything
under 1t or over It." Ownership lit
orally ad coelum would seem to make
an action for trepasJ lie against every
navigator OF the air who passed with
out permission above the prosecutors
land. But the law is not such an ass.
1t does not give the right of property
in airspace. The owner has control
only over that part OF the air which is
strictly "appurtenant" to his land.
Nuisances and dangers in the air
above his property he can enJoin, but
not any use Of the air which does not
interfere with his comfort or safety.
Mr.. Kuhn cites the following from sir
Frederick Pollock:
Clearly II would be a trepass to
sail over another mans land In q. bal
loon (much more IL a comfortable
airship) at a level within the height
Of ordinary buildings, and II might be
a nuisance to keep a balloon hover
ing over the land at even a greater
height"
With the coming into large use of
aeroplanes and dirigibles. II Is prob
able that certain notifications of the
criminal law will have to be made.
They will relate to such questions as
the citizenship Of Offenders and ex-
territorial Jurisdiction. Thus II is pro-
posed by FauchilIe that all crimes
committed on board of aircraft by
either crew or passengers, shall be
subject to the laws OF the nation to
which the airship belongs, no matter
what the nationality OF either the
criminal or his victim. This would
plainly go counter to American no.
tons or local jurisdiction. Even over
offenses committed on foreign war
ships in our waters we assert q con-
current departure to abandon 1t al
together In the case of vessels navi-
eating the air. But all these legal
readJustments to the new conditions
are as yet inchoate. international
lawyers and conferences of jurists will
In time get to work on a code to en-
body the law OF the air. And 1egisIa-
tors will also need to cooperate, since
many OF the questions involved are
administrative. rather than legal. Mr..
Kuhn notes a tendency in European
countries to sub. ect aerial navigation
to the monopolistic control OF the
state. With us In America there would
be apt to come, rather, charters to
private companies, under state and
federal regulation. And if the inter-
state commerce act were to be ap-
piled to common carrier 1y aeroplane,
we presume that railroad lawyers
would agree that the result would be
to place that law only a little more
"up On the air" than 1t is at present
lkT If all else fails-try FGetcheriz-
ing.