Evening Star Newspaper, September 14, 1930, Page 106

¥ 16 THE SUNDAY STAR, WASHINGTON, D: C, SEPTEMBER 14,‘ 1930. Who Owns theAir, And How Much (] Courts Need Wisdom of Solomon to Solve Enigma of “Air Z }‘(’.s‘pass ”_ as Lc’g(ll Staius of Ether Is Widely Contested in America Owing to the Rapi'd Develop- ment of Air Trans- poriation. BY JOHN LEO COONTZ. MAN'S HOME is his castle. Man pos- es the earth from its surface down to its very center. He is lord of his earthly estate, be it ever so small; possessor of all the wealth below . the surface boundary lines. But what about the air? How much air above his real estate property does a man own? It has always been said—and there has been none to deny it—that a property owner's rights above the ground are as exten- sive as those below. The well known expression, “free as the air,” implies the theory that no man controls this element, but, like the waters of the earth, all should enjoy and partake of it at will. But this condition is changed, or is changing. Recently residents adjacent to a flying field near Baltimore, Md., complained to the authori- ties that planes were annoying them by flying back and forth over their property. A hot argument ensued. “The air' is free,” said those who wished to use it. “The air above us is our air,” said the property owners. Immediately there arose the question of who owns the air and, if anybody owns it, how much of it does he own? Aviation has brought to the fore the ques- tion of air ownership. Individuals have claim- ed the “air-space” above their property as their own and the right to prohibit aviation cor- porations from using it. Litigation has resulted to determine the use of “private air.” trespass have United States. States for the Eastern Division, handed down this decision in a case known i as Swetland vs. Curtiss an action on the parties of the first part for an injunction because of illegal trespass and the alleged maintenance of anuh-neebyoneormoteo(u\eputluo(uw second part. The court said, in part: “Accordingly, it is our conclusion that the plaintiffs at this time are entitled to an in- junction-restraining the defendants— “(a) From permitting dust from their oper- ations to fly or drift in substantial and annoy- ing quantities over the property of the plain- tiffs: “(b) From permitting the dropping or dis- tributing of circulars from airplanes as they pass over plaintifl’s property or in proximity thereto; and, “(c) From navigating over the property of plaintiffs or any part thereof unless at alti- gudes of 500 feet or in excess thereof.” In another case, in Massachusetts, tried in the Superior Court of that State—a suit to prohibit an aviation corporation from flying over land and buildings in such manner as to constitute trespass and nuisance—the court held there was trespass below 100 feet, that from 100 feet to 500 feet it was undecided, and from 500 feet up there was no trespass. In these two cases—the only ones of definite fmportance in the United States with respeet to #air rights”—nothing, it will be noted, has been said about the landing or takeoff of planes. The courts have been very careful to confine their decisions to the question of what consti- tutes trespass in the matter of flying over an individual’s prcperty. They have, so to speak, guled within the Commerce Department’s reg- tilation with respect to “safe altitudes of flight,” which decrees that 500 feet shall be the minimum, “except where indispensable to an industrial flying operation.” Flying over cities, towns and settlements comes under a separate regulation. 'l‘HE Federal Government, by an act of Congress, has declared “complete sov= ereignty of the air space over the lands and waters of the United States, including the Canal Zone.” And it further declares that “aircraft of the armed forces of any foreign nation shall &t be navigated in the United States, includ- ing the Canal Zone, except in accordance with an authorization granted by the Secretary of This is in aceordance with the practice of all @ations, -though some go & step farther and ? » 4 £ % p- T 3 £ T D‘ The distribution of ‘circulars from airplane, include commercial craft. Take Bermuda, for instance. Recali the faux pas that Roger Q. Williams, transatlantic flyer, committed last June with respect to this British possession. It created no little stir and brought on Williams a sharp bit of punishment from the Depart- ment of Commerce air regulator, Gilbert C. Budwig. And it brought forth from Williams some rather caustic comment in regard to for- eign trespass with respect to a commercial plane. On June 30 last Williams, accompanied by Harry E. Connor of New York, and Erroll Boyd, a Canadian, made a non-stop flight from New York City to Bermuda and return. He merely flew over the Atlantic, circled over the island and dropped a bag of mail. Back in New York, in the latter part of July, he was informed by Mr. Budwig that his pilot’s license had been suspended for 90 days. Later the suspension was cut to a week. Williams was dumfounded and thought that it was a practical joke. Then & . N taken objection. he discovered that Bermuda officials had taken exception to his flight over the island—though mission to “fly its air.” mix-up, indeed. The question as to what height Williams flew over the island was not brought up, nor was the question of the type of plane he was using. Wiiliams was quoted as saying: “On our flight from Maine to Rome Yancey I over a lot of countries, just the me as other transatlantic airmen have done, was said about it. When we took Pathfinder to Cherbourg to put her on a received an amusing telegram from French air ministry saying that, inasmuch already had flown over 75 per cent of Roger Q. Williams (center), accompanied by Harry E. Conner (right) and Erroll Boyd (left), flew into a legal tangle last June when he circled Bermuda on a non-stop, round-trip flight from New York City. Officials of the British dependency protested against this act, and Williams’ license was temporarily | suspended. s is @ phase of commercialized flying to which many property owners have \ me, because we used Bermuda only as a ref- erence point in our navigation. If we had landed there they might have had real cause for complaint, although, so far as I know, no action of this sort has been taken against Yan- cey and Bill Alexander, who flew out there and landed in a seaplane some time ago.” williams proceeded to point out that other ocean fiyers have passed over any number of foreign states without being called upon the carpet, citing the planes that flew daily be- tween Buffalo and Detroit by way of Canada without protest. Aviation is so young that rio body of law has been developed to cover the controversies which will inevitably arise in the cqurse of its development. . Regulations have not been made as yet regarding the height at which a plane must fly over property in order to be free from an action in trespass. Should the point ever be settled, how is it going to be determined that trespass has aetually occurred? SUPZ’OSE that 500 feet is accepted as the minimum altitude for flying above prop- erty outside of cities and towns. How is the yardstick to be laid on? What about emergency flying at an altitude less than 500 feet? What about taking off and landing? What about night flying? The flying of a plane, more than the opera- tlon of any other mechanical agent of loco- motion, demands that its operation at all times be left to the judgment of the pilot. Its speed for cerain maneuvers must be .in accordance with the science of flight and -not subject to definition by law. Its landing must be into the wind, regardless of the direction. . Aviation is an independent science. A rail- road train runs on a track, an automobile runs on a road, but a plane stays in the air only when propelled. It comes nearer being a law unto itself than any other medium of trans- portation. These recognized facts with respect to avia- tion make a wide gulf between it and other modes of transportation. There are no prece= dents to guide in the matter of *“safe speed.” The demands of a plane to remain aloft take care of that. “Safe altitude” has as much ap- plication to pilot and passengers as to per- sons on the ground. Those who have made a study of air rights confess the questions to be baffling. They point out that time alone can solve them. Aviation is growing by leaps and bounds as a means of commercial transportation. Larger and heavier planes are being contemplated. The number of planes in service is increasing year by year. At present there is room for all, but how about 10 or 20 years hence? If the public is beginning to be “touchy” about the present-day operation of planes over its head, what about the third and fourth gen- erations from now? The Department of Commerce recently an- 5 “Continued on Tmly-}lu( ‘Page