Successful aviation has evoked some peculiar things in the way of legal action and interpretation of the law.
It is well understood that a man's property cannot be used without his consent. This is an old established principle in common law which holds good today.
The limits of a man's property lines, however, have not been so well understood by laymen. According to eminent legal authorities such as Blackstone, Littleton and Coke, the "fathers of the law," the owner of realty also holds title above and below the surface, and this theory is generally accepted without question by the courts.
Rights of Property Owners.
In other words the owner of realty also owns the sky above it without limit as to distance. He can dig as deep into his land, or go as high into the air as he desires, provided he does not trespass upon or injure similar rights of others.
The owner of realty may resist by force, all other means having failed, any trespass upon, or invasion of his property. Other people, for instance, may not enter upon it, or over or under it, without his express permission and consent. There is only one exception, and this is in the case of public utility corporations such as railways which, under the law of eminent domain, may condemn a right of way across the property of an obstinate owner who declines to accept a fair price for the privilege.
Privilege Sharply Confined.
The law of eminent domain may be taken advantage of only by corporations which are engaged in serving the public. It is based upon the principle that the advancement and improvement of a community is of more importance and carries with it more rights than the interests of the individual owner. But even in cases where the right of eminent domain is exercised there can be no confiscation of the individual's property.
Exercising the right of eminent domain is merely obtaining by public purchase what is held to be essential to the public good, and which cannot be secured by private purchase. When eminent domain proceedings are resorted to the court appoints appraisers who determine upon the value of the property wanted, and this value (in money) is paid to the owner.
How It Affects Aviation.
It should be kept in mind that this privilege of the "right of eminent domain" is accorded only to corporations which are engaged in serving the public. Individuals cannot take advantage of it. Thus far all aviation has been conducted by individuals; there are no flying machine or airship corporations regularly engaged in the transportation of passengers, mails or freight.
This leads up to the question "What would happen if realty owners generally, or in any considerable numbers. should prohibit the navigation of the air above their holdings?" It is idle to say such a possibility is ridiculous--it is already an actuality in a few individual instances.
One property owner in New Jersey, a justice of the peace, maintains a large sign on the roof of his house warning aviators that they must not trespass upon his domain. That he is acting well within his rights in doing this is conceded by legal authorities.
Hard to Catch Offenders.
But, suppose the alleged trespass is committed, what is the property owner going to do about it? He must first catch the trespasser and this would be a pretty hard job. He certainly could not overtake him, unless he kept a racing aeroplane for this special purpose. It would be equally difficult to indentify the offender after the offense had been committed, even if he were located, as aeroplanes carry no license numbers.
Allowing that the offender should be caught the only recourse of the realty owner is an action for damages.
He may prevent the commission of the offense by force if necessary, but after it is committed he can only sue for damages. And in doing this he would have a lot of trouble.
Points to Be Proven.
One of the first things the plaintiff would be called upon to prove would be the elevation of the machine.
If it were reasonably close to the ground there would, of course, be grave risk of damage to fences, shrubbery, and other property, and the court would be justified in holding it to be a nuisance that should be suppressed.
If, on the other hand; the machine was well up in the air, but going slowly, or hovering over the plaintiff's property, the court might be inclined to rule that it could not possibly be a nuisance, but right here the court would be in serious embarrassment. By deciding that it was not a nuisance he would virtually override the law against invasion of a man's property without his consent regardless of the nature of the invasion. By the same decision he would also say in effect that, if one flying machine could do this a dozen or more would have equal right to do the same thing. While one machine hovering over a certain piece of property may be no actual nuisance a dozen or more in the same position could hardly be excused.
Difficult to Fix Damages.
Such a condition would tend to greatly increase the risk of accident, either through collision, or by the carelessness of the aviators in dropping articles which might cause damages to the people or property below. In such a case it would undoubtedly be a nuisance, and in addition to a fine, the offender would also be liable for the damages.
Taking it for granted that no actual damage is done, and the owner merely sues on account of the invasion of his property, how is the amount of compensation to be fixed upon? The owner has lost nothing; no part of his possessions has been taken away; nothing has been injured or destroyed; everything is left in exactly the same condition as before the invasion. And yet, if the law is strictly interpreted, the offender is liable.
Right of Way for Airships.
Somebody has suggested the organization of flying-machine corporations as common carriers, which would give them the right of eminent domain with power to condemn a right of way. But what would they condemn?
