Cuius est solo, eius est usque ad coelum et ad inferos

Walt Disney has a no fly zone over Disneyland and Disneyworld. In connection with anti-terrorism measures, this was approved by Congress in February and upheld by a federal court in June. Planes must be at least 3,000 feet up. Philip Greenspun (who flies) says, in an article on the stock market:

bq. Ever since the dawn of aviation it has been held that airspace belongs to the public and is to be regulated for the benefit of all by the FAA.

The Disney story is here (Aero-News.Net).

This is news to me. I learnt that if you own land (OK, only the Crown can own land in England and Wales … ), you own it from the centre of the earth to the sky, although someone else may have rights to the subterranean minerals and the Civil Aviation Act creates exceptions for planes flying through ‚your’ airspace. But you can certainly stop someone placing overhead advertising so it enters your airspace.Am I to believe that in the USA, there is no such rule? Well, now Professor Lessig says this (what I thought was the law) was the law in the USA until 1947. He even links an online Blackstone, which I now quote (is this font really the right one to show those old Ss?):

bq. Land hath alfo, in it’s legal fignification, an indefinite extent, upwards as well as downwards. Cujus eft folum, ejus eft ufque ad coelum, is the maxim of the law, upwards; therefore no man may erect any building, or the like, to overhang another’s land: and, downwards, whatever is in a direct line between the furface of any land, and the center of the earth, belongs to the owner of the furface; as is every day’s experience in the mining countries. So that the word “land” includes not only the face of the earth, but every thing under it, or over it. And therefore if a man grants all his lands, he grants thereby all his mines of metal and other foffils, his woods, his waters, and his houfes, as well as his fields and meadows. Not but the particular names of the things are equally fufficient to pafs them, except in the inftance of water; by a grant of which, nothing but a right of fifhing g : but the capital diftinction is this; that by the name of a caftle, meffuage, foft, cromt, or the like, nothing elfe will pafs, except what falls with the utmoft propriety under the term made ufe of; but by the name of land, which is nomen generaliffimum, every thing terreftrial will pafs.

1947 is about the date of the Civil Aviation Act in Britain.

I’m driven to books. I have the Barron’s Dictionary of Real Estate Terms, 4th ed., 1997, ISBN 0 8120 9660 6. It has nice American terms in it: saltbox colonial house, catslide roof, Freddie Mac, grandfather clause. And it has the same definition of land I know:

bq. The surface of the earth; any part of the surface of the earth… Air rights may be limited to some defined altitude. Added improvements are distinguished from land.

And there is a diagram of the extent of land ownership, showing the earth like a cake with a slice cut out, containing mineral rights, surface rights and air rights.

What’s new to me is the possibility of air rights being limited to some defined altitude.

The dictionary also says that air rights can be leased, sold, or donated: for instance, the Met Life Building in NYC is situated in the air rights of Grand Central Station.

Other relevant cases to look at (note to self) might be those against companies who sell aerial photos of your house and garden. There have been some in England and there was a California one recently, although I don’t think they were actually over Barbra Streisand’s (?) house when they photographed it.

The Oxford Dictionary of Law says an owner has rights in as much airspace as is necessary for the ordinary use of his land and the structures on it. Civil aircraft flying at a reasonable height over land do not commit trespass, but damages can be obtained if material loss or damages is caused to people or property.

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