Evening star., 1913-02-17
AEROPLANES IN WAR AERIAL LAW POINT
Aviation Involved in Case Be-
fore Supreme Court.
COLLATERAL ISSUE ONLY
Real Contention Affects Battery
Practice on Maine Range-Ques-
tion Debated in Europe.

The much-diSputed right of an aviator
to fly over land of private owner may be
touched upon. if not specifically consid
cred. by the Supreme Court for the first
time, shortly after the court convenes
next week. The point promises to arise
in one of the most novel cases to come
before the court in years. 1t embraces
the question of whether the government
has taken property. within the mean
ing of the Constitution. by firing cannon
over 1t, as a practice exercised in time of
peace.
The case concerns the operation of Bat
terry Bohlen. in Maine. near Portsmouth,
n H. The Portsmouth Harbor Land and
Hotel Company owns a strip of land
along the scashore on which hotel and
cottages have been built as summer
resort. The battery is directly back of
the land with only a narrow frontage on
the seashore. Should shots from the fort
be fired over the governments own prop
erty. it is claimed they would come dam
gerously near either lighthouse or the
populous New Hampshire shore. The
company asserts that the government not
only has shot across it's lanl, making it
undesirable for a summer resort, but
that shooting across its land is the only
practical way the guns may be dis
charged. Under such situation, 1T is
claimed, it's property has been taken
by the government The company lays
claim to dominion above the surface Of
the land as we'll as under it.
Involves Rights in Aviation.
This involves a question that has come
before the courts more frequently OF re-
cent years in connection with flying aero
planes over land not owned by the avia-
tor. The English courts have had simi-
lar cases before them several times and
have held. as a general principle, that
while proprietors rights theoretically
extend into the air an indefinite distance
above his property, the landlord cannot
exact damages for aeroplanes and bal
looms passing above his ground unless he
can prove some material damage as the
result of the flight
In France there was recently a suit by
some property owners owing to the pu-
pills of a commercial aerOplane school
flying over and frequently landing on
their ground. In this case the court held
that the persistent landings constituted
a nuisance that could be enjoined.
Along the same lines the municipal au-
thorities in Berlin have held that flying
over the city constitutes danger to the
populat ton and such flying is forbidden
by police regulation.
In the case of shooting over property,
probably the same general rules will hold.
In one case recently United States NOR
tar battery created a small panic in
summer resort by making a mistake In
laying it's guns and dropping shells into
we'll populated settlement. In this case,
however, material damage with jeopardy
of life was susceptible of proof
Law Of the Air.
The international congress of law has
considered the law of the air at its ses-
sons for the past three years and has
even raised the question of the nationality
of a person born in an airship. This so
far has been merely an academic ques-
tion as there has been no such concrete
case on record. The congress wanted to
determine in advance whether the ma
tionality of such person should depend on
the flag flown by the afrship. the nation
ality of the child's parents or the country
passed over at the time.
This advanced point has not yet been
settled, and, in fact, the International
congress has not yet made any definite
recommendations in the line OF aerial law.