"New and Romantic"

An ancient maxim, attributed to Accursius (1182-1260) and much quoted by legalists, reads: Cuius est solum eius est usque ad coelum (He who owns the soil owns above it to the sky). Until recently this principle of property ownership was generally accepted, and air rights above property still sell for vast sums.* But the advent of air transport has vastly complicated Accursius' ancient tenet. When aircraft pass over a man's land or over foreign territory, is it trespass?

In England in 1920 Parliament decided: "No action shall lie in respect of trespass or in respect of nuisance by reason of flight of aircraft over any property." The U. S. Bureau of Air Commerce has made transport flight illegal below 1,000 ft. above congested areas, 500 ft. elsewhere, except when landing. As yet, however, no final Federal decision has clarified the mass of contradictory lower court opinions on property rights v. air rights.

The question first arose in the U. S. in 1822 when a man named Swan crashed his balloon on a Mr. Guille's farm in New York State. Crowds rushed in, spoiled Guille's flowers and the court ordered Swan to pay damages. In 1930, Frederick & Raymond Swetland tried to enjoin Curtiss Airports Corp. of Cleveland from infringing on their property rights, claiming that low-flying Curtiss planes disturbed them, by their noise and by dropping leaflets. The court ordered the airmen to cease dropping things. In 1934, on the other hand, Clovis Thrasher sued the city of Atlanta, Ga., charging that it permitted planes to fly too low, endangering him. and annoying him by the dust they stirred up. He lost the case. And in the same year a similar suit was dismissed in Pennsylvania with the ruling: "Invasions of the air space are trespass only when they interfere with proper enjoyment of reasonable use of the surface." Last week another court decision on a similar plea added no conclusion to the situation but gave it a fresh slant.

Mr. & Mrs. F. R. Hinman each sued United Air Lines for $90,000, claiming that its planes flew sometimes as low as five feet above the 72 Hinman acres next to Union Air Terminal, Burbank, Calif. The Hinmans declared that they had sole rights to the "stratum of air superadjacent to and overlying" their land and "extending to such an altitude as the plaintiff may reasonably expect to occupy." Denied by lower courts, the suit was appealed to California's Supreme Court which last week held that there had been no effective precedent and that aircraft should be treated leniently as "a new and romantic industry." Concluded the Court: "The air, like the sea, is by its nature incapable of private ownership, except insofar as one may actually use it."

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