AIR LAW - LEGAL STATUS OF AIRPLANE FLIGHT

Authors

Philip A. Hart Jr., University of Michigan Law SchoolFollow

Abstract

The classical statement of the extent of the landowner's right to the air space above his land is the maxim, Cujus est solum ejus est usque ad coelum. It is recognized, however, that decisions stating such a rule are not in point upon the status of air navigation today, for when those decisions were rendered flights were made in fancy only. Hence it is that all cases deciding this modern problem have disregarded the literal meaning of this maxim and tried to strike a compromise between the claims of air navigation and the claims of ownership. Three theories have been advanced to this end: (1) that the landowner owns the airspace above to an unlimited height, but is subject to an easement of travel in the public; (2) that he owns the air space within an indeterminate zone, but beyond that zone the ownership is vacant; (3) that his ownership extends no further upward than the earth's surface, including any growth and buildings. This last theory, using the nature of the action given as descriptive of the right, is called the nuisance theory. In any appraisal of these theories, our aim ought to be to determine which best secures the landowner in his legitimate interests, yet, at the same time, secures aerial freedom sufficient to meet the public interest involved.

Recommended Citation

Philip A. Hart Jr., AIR LAW - LEGAL STATUS OF AIRPLANE FLIGHT, 35 Mich. L. Rev. 1023 (1937).
Available at: https://repository.law.umich.edu/mlr/vol35/iss7/5