Evening star., 1922-03-12
Air Rights of the Owners of Private Property
Must Be Settled Before Aviation Can Progress

lowed a limited ownership. and still
others no private ownership at all in
the air spaces beyond a certain limit.
on the same theory that the air is as
free as the sea beyond the three mile
limit established by international law.
In other words, no common conclu-
sion has been reached. However, the
British air act Of 1920 says that "the
absolute sovereignty and rightful
jurisdiction Of his majesty extends
over the air superintendent on all
parts Of his majesty's dominions and
the territorial waters adjacent there
to-" In England there is no action
for trespass except in case of actual
wrong or damage. In practice Euro
pean countries recognize the princi-
Pile that ownership Of the land does
not convey any exclusive right to the
free and unrestricted use of the air
space above the property.
There is no law on this point in
the United States; there are no court
decisions. The Wadsworth-H Hicks bill.
like others of similar purpose. as
sumes that federal control of the
navigation of the air will obtain. be-
cause there is no law to the contrary.
and that the situation warrants the
surrender of private or state rights
to national jurisdiction. However,
this point is doubtful. 1t may be con-
tended that the landowner has ex-
elusive control Of the space above his
land and that the aircraft is a tres
passer. What then? The courts
must decide.
Is it possible that a constitutional
amendment may be required before
federal control of the air for naviga-
tion purposes is permitted? This
would retard aviation until public
opinion is aroused. To avoid these
pitfalls, if possible, the Wadsworth-
Hicks bill limits federal control in
the air through existing constitution
engaged in interstate and foreign
fight. If private ownership of air
space is sustained, the question of
trespass and damages might be
raised. But would not the interstate
provision of the federal Constitution
protect interstate flights? These are
interesting problems which the courts
would decide, probably.
Obviously, unless the air space is
subject to federal sovereignty above
state sovereignty. legislation in re-
gard to flying is impossible; the lay
ing out of air routes by the Depart
ment of Commerce is impossible. 1t
is said that the modern development
of aircraft challenges the ancient
doctrine of private ownership above
the land, and that often the right OF
society is above private right, such
as the right of passage over naviga- i
BILE rivers privately owned. The logic
Of the situation seems to be that the
public have certain rights in space
over private property when their ex-
ercise does not interfere with the sur
face owner.
Early European conventions sfol-
lowed the maritime law and assumed
the air is free and that sovereignty
extends only to the air spaces that
can be occupied, while the air spaces
above are free. This is the theory of
the Wadsworth-Hicks bill. which ap-
plies maritime law to all cases OF
dispute and damage. However, the
rule in the United States must be es-
tablished- by the courts 1t may give
rise to another controversy between
federal rights and state rights.
If the doctrine OF private ownership
and state sovereignty Is swept away
and federal jurisdiction over the air
spaces is established 1t Will pc In line
with other recent court decisions.
The Supreme Court only rev weeks
ago established the right OF the fed
eral Interstate Commerce commission
| to make rates even within the states