New-York tribune., 1922-07-30
Who Owns the Air?
lrespass Action Against Flyers by
PENNSYLVANIA Farmer
To the Editor of The Tribune.

1o Inc Goltor OF Inc Tribune.
Sir: An interesting case Of so-called
air trespass has come before the courts
OF Pennsylvania. Some gypsy flyers
rented a tract of land which they used
for flying field. The owner of the
adjoining farm objected to the noise
Of the airplanes flying over his prop
erty and brought an action for .~es-
pass. The justice of the peace fr ID
the aviators s1o0 each. A few days
later the decision was reversed by a
judge, who held that as the airmen
had not set foot on the complainant's
ground they had not violated the ex-
listing trespass act. 1t was also IN
dictated that there was no trespass law
in Pennsylvania under which airmen
could be fined
The information against the hyers
was made under the game act Of 1905,
which forbids trespassing on land that
lss..uaatsd decision has ayer been
rendered in Pennsylvania as to tres
pass where only the air above posted
I property is involved. The owner Of
the property has been made liable TO-
the costs of the case pending appeal to
the higher courts.
The question Of the ownership Of the
air, while never finally adjudcated in
this country, seems to be obvious from
common usage. Ever sincs the rights
Of property have been established the
use of the air by birds, bees and carrier
| pigeons, regardless Of their owner
ship, has not been questioned. Even
pol!uting the air by chemical plants
has been permitted. Now, radio is
establishing another precedent ty zon-
ing the air for different classes of wave
flengths..
"Who owns the air?" is a question
that has been discussed from many
points of view. While the unobstructed
and peaceful use of the air has always
rested in the owner of the land, the
right of tenancy has never been ex-
tended to prevent the free use of the
! air above property No owner of land
has ever prevented the public from
looking or hearing through the air
above his property, and the very men
tlon Of this prohibition sounds absurd.
! The convention for the regulation of
air navigation as signed by the United
States and practically all the leading
nations Of the world states under
General Principles: "The high con-
tracing parties recognize that every
power has complete and exclusive SOW
ereignty over the space above its terri
tory" While this may apply only to
international relations, it makes it
obvious that the regulations for the
use Of the air must rest in the Federal
government alone.
The right Of eminent domain has
long been used to acquire for public
use, rights of way and land for public
betterment, SO that no matter what
legal quibbling may cloud the broad
issue, 1t will always be possible for the
government to retain control of the
air. "Free as. air" is no longer a
maxim, but is becoming a reality sane
toned by law.
The sea has always been free. A
leading legal authority has stated
THE sea is an element which belongs
to all men, like the air."
1t will be unfortunate if case in
volving flying, where noise of planes
and the nuisance from crowds bring
in the question of local police power,
is used to influence public sentiment
about the fundamental freedom Of the
air for commercial air transportation.
L. D. GARDNER,
Publisher Aviation"
New York, July 26. 1922.