Evening star., 1935-07-21
Ownership of
the Air
By Frederic J. HGskin.

a prophecies as Mother Shipton thought
the time would ever come when an issue
could be made over the question of
whether there can be such a thing as
private ownership of the air or any
part of it. Yet this question has risen
to vex tFe legal minds Of the United
States, as we'll as other countries. Even
a comparatively few years ago any
lawyer would have inclined to the view
that when an individual owns a tract
of land he owns it down to the center
of the earth and up to the Heavens
above.
As an incident of the tremendous en-
richment of private property owners
through discovery of rich mineral de-
posits on their lands, the doctrine of
naturalization of the subsoil was intro
duced. In this country the matter first
arose in connection with grants of public
lands. The contention was made, on
behalf of the public, that when the
Government made land grants it was
ignorant Of the vast potential values
involved.
No more public lands are granted
without specific reservation of mineral
rights to any future discoveries. In
European countries there have been
acts Matchmaking the subsoil, the pri-
vate owner being under obligation at
least to share with the Government any
mineral wealth he may at any time
find
There is another analogy involved In
any consideration Of private ownership
of the air. That is in connection with
navigable rivers. In early times If a
man owned a stream he controlled the
stream even to the extent of privately
charging toll for passage. But it soon
became the rule in this and other coun-
tries that so essentially public were
streams naturally navigable that no
private rights could be held against the
public interest. There are now strict
laws against bridging, building piers,
docks or other structures over or in
navigable streams without specific
authority. Pollution of streams is con-
trolled by law and, in general, the
public right to such streams is insisted
upon.
Nuisance Question Arises.
1t has long been recognized that the
master of ship has no exclusive right
to body of water he plies and, by the
same token, the pilot of an airplane
has no right to the exclusive use of the
air he traverses. But, it is urged, both
the ship master and the airplane pilot
have rights of passage and, while thev
cannot claim ownership. no one can bar
their way, always provided they do not
tranSgreSS any existing navigation rules.
The question of the private ownership
Of the air is not an idle one. It Is
possible for many law suits to arise over
it. We are told that the structures OF
the future will rise to heights now un-
dreamed of Already the Empire State
Building in New York City scars 1885
feet into the air. and it is conceivable
that private property owners might de-
sire to erect structures even higher II
a private land owner on the bank Of
navigable stream or a harborside desires
to build some structure which will
utilize portion of the bed Of the
waterway, he must get special authority.
In the future will it be necessary for
such an owner to 60 to Congress for
special act to enable him to raise an
edifice into the air above his own
property?
The advertising world has developed
the most amazing advertising devices.
Sky-writing through the agency of air
planes is employed with increasing fire.
quency. BY the same token is it not
conceivable that some advertising pro-
moter might wish, by some perhaps yet
undiscovered device, to anchor an aerial
sign possibly 1000 feet aloft and leave
it there more or less permanently? If
the doctrine of public rather than pri-
vate ownership of the air prevails, the
person desiring to undertake such an
enterprise would have to receive spe-
ciflc authority even though he owned in
fee simple the underlying land.
There arises also the nuisance ques-
tion. The first case in which the air
plane nuisance was brought forcihly
to the attention of the public was on
the occasion of the dedication cere-
monies at the Lincoln Memorial at
Washington. An alrplane pilot, think
ing. doubtless. to add to the dedication
spectacle. stunted over the great con-
course of people gathered. At times he
swooped so low that the noise of his
engines and propellers effectually
drowned out the voices of the speakers
and frightened the spectators.
Inasmuch as this was a public occs-
sion, there was no difficulty experienced
in laying down rules against such flying,
But SuppoSing a private Landowner
objected to the droning of airplaneS over
his property. The question of what
redress he has arises. Then, too, there
is always the danger Of accident. Occa-
sionally one may read in the newspapers
of some freak accident. of how family
has been disturbed and, perhaps, in
jured by an airplane crashing through
the house roof. There is always some
danger of tools or other heavy objects
falling from passing aircraft and doing
damage to persons or property below.
Precedents Not Yet Established.
To what extent the owner of private
property can deny the right Of aircraft
to pass over his land is almost sure TO
be contested in the courts and, indeed,
has been in a limited manner. So new
is the question, so scant the legal eX-
perience. that it seems new body OF
precedents will have to be built up. That
the trespass or nuisance question has
not been settled seems obvious. In the
case of SHETLAND versus Curtiss AirportS
Corp. the Circuit Court of Appeals for
the sixth circuit held that the rule of
nsvigable air space laid down in the
navigation rules of the Secretary of
Commerce docs not determine the
rights of the surface owner either as to
trespass or nuisance"
The general rule of the commerce
regulations is that safe navigable air
space must be regarded as not under