Is the airspace above our heads a common good open to exploitation, including by drones, or is it an extension of the land below, subject to the same ownership rights? Common law established the principle that land ownership extends indefinitely upwards[1]. (“Cujus est solum, ejus est usque ad coelum, is the maxim of the law, upwards; therefore no man may erect any building, or the like, to overhang another’s land: … the word “land” includes not only the face of the earth, but every thing under it, or over it.” Blackstone Commentaries Vol,2 Bk 2 p18). The long-standing legal doctrine that land ownership extended infinitely upwards remained unchallenged until the dawn of aviation in 1903. The subsequent surge in air travel and international pressures[2] compelled the U.S. Congress to establish a public right-of-way in the airspace above the nation’s territory.
The notion that airspace, a domain traversed for centuries, is unclaimed territory defies established law, historical precedent, and common sense. The assumption that the space above our heads can be freely used by drones laughs off the current practices and proactive rights that have been acknowledged by the U.S. judiciary for nearly two centuries. While the space above public lands may be used in various ways, assuming that all space above private lands has suddenly become an aerial highway ignores property law and “recognized concepts of real property rights”[3]. Property rights, including associated interests, cannot be surreptitiously transferred or seized without due process. Existing land ownership inherently encompasses lower airspace rights, unaffected by technological advancements [4]. The FAA’s decision to exclude drones from the navigable airspace above 400 feet does not grant it authority to convert private property to public use [5]. Legal frameworks clearly establish that ‘real’ property includes airspace domain [6].
Deeds employ a two-dimensional representation of land ownership using surface points. However, this cartographic depiction does not constitute the actual property itself. Property exists in three dimensions to be tangible. Geometrically, a plane defined by two axes is a theoretical abstraction without physical substance. It lacks the qualities of a tangible object and thus cannot be considered real property. The vertical dimension is essential for property to exist as real estate. Without this third dimension, property rights, laws, and economic value would be illusory. The Property Clause[7] of the U.S. Constitution would be rendered meaningless if congressional authority and national sovereignty were confined to a theoretical plane. The Constitution cannot be interpreted as a vacuous document. The transfer of property through deeds would be an absurd and valueless act if property were not three-dimensional. Federal land management agencies’ jurisdiction[8] would be nullified if national parks and forests lacked vertical boundaries. To suggest that airspace is a free-for-all for drones requires ignoring established laws, property rights, and the very concept of ownership. The successful marketing of this illusion by drone manufacturers has not created a presumptive right for drones to invade the airspace above private property. Established property rights, national sovereignty, and legal precedent were not compromised when humans first achieved flight a century ago. These rights remain intact despite advancements in technology.
Long before the advent of aviation, legal precedent established that land ownership extends upward [9]. In the United States, this principle is encapsulated by the maxim, ‘Whoever owns the soil, owns property that extends both up to Heaven and down to Hell’ [10]. Even international borders are defined by terrestrial points and a vertical boundary, such as the Kármán line [11]. The United States asserts sovereignty over airspace above the “territorial United States” [12], further confirming that airspace is a derivative of land ownership, not an independent domain [13].
The U.S. Constitution granted Congress authority over federal lands, leading to the establishment of the Land Grant Office. This office facilitated the transfer of public land into private ownership [14]. Such land grants included ownership of the airspace above. Airspace is thus a component of land title, derived from the underlying land and not an independent entity. Common law affirmed this principle by recognizing ‘land’ as encompassing the space above it:
“for [air] is a moveable wandering thing, and must of necessity continue common by the law of nature; so that I can only have a temporary usufructory property therein. But the land, which [air] covers is permanent, fixed, and immoveable: and therefore in this I may have certain substantial property; of which the law will take notice, and not the other. The word ‘land’ includes not only the face of the earth, but everything under it, or over it.”.
Airspace ownership is inherently linked to land ownership, extending vertically upward from the ground. U.S. land grants conveyed property titles that included dominion over the lower atmosphere. While the United States retains national sovereignty over its airspace, these rights are subject to constitutional limitations, including individual privacy and property rights. In determining the extent of airspace associated with land ownership, the U.S. Supreme Court compared historical legal principles with practical realities. While acknowledging the theoretical concept of limitless property rights, the Court recognized such “has no place in the modern world” [15]. To maintain property value, ownership must possess vertical dimensions [16]. Courts and Congress have established 500 feet [17] as the altitude at which landowner rights, including privacy and exclusivity, are protected from aircraft interference [18].
The congressional grant of a “right to transit” for aircraft above 500 feet is, in essence, a limited property interest or easement that burdens underlying land ownership. While Congress established “a public right of freedom of transit in air commerce through the navigable airspace of the United States”[19]. This declaration explicitly excluded airspace below 400 feet, the designated altitude for drone operations. Courts have consistently ruled that activities within this lower airspace, particularly drone flights, can constitute an infringement on landowners’ privacy and property rights. This distinction underscores the principle that airspace ownership remains fundamentally tied to land ownership, even in the age of aviation. Airspace is a form of property, and its use, particularly at lower altitudes, requires specific authorization and often involves the acquisition of easements [20]. Drones, as inanimate objects, possess no “freedom to fly” nor acquire a “liberty interest” inherent rights to occupy airspace, regardless of their purpose. Drone operators, conversely, hold a conditional privilege to utilize the designated public airspace, subject to strict FAA regulations. Importantly, this privilege does not extend to unrestricted use of airspace that is privately owned. The notion of drones possessing constitutional “rights” or implied entitlements to airspace is fundamentally flawed and legally untenable.
Federal authority over airspace is vested in the FAA, but ownership of the air space above private property remains with the landowner. This principle is evident in various regulations, including prohibitions on aircraft and drones within national parks and temporary flight restrictions imposed for specific events [21]. These restrictions are primarily grounded in property rights rather than abstract concepts of air space control. Whether the FAA has yielded to drone advocates or is leveraging technological changes to expand its own jurisdiction and power, these dubious property acquisitions surpass the statutory limits set by applicable laws and constitutional restrictions [22]. The FAA oversteps its statutory authority and federal powers when it permits drone use in airspace beyond its jurisdiction. Authorizing drones to operate in private airspace bypasses statutory obligations that protect landowners’ rights to property, privacy, and due process as recognized by applicable laws and the U.S. Constitution.
Congress established the FAA’s jurisdiction under the Commerce Clause to regulate aircraft, air-commerce and control the public easement, but did not give the FAA absolute authority over airspace down to ground level. The Air Commerce Act of 1926 enacted under Congress’s commerce power, see US v.Causby 328 U.S.256, (1946) note 1a,2a, established “a public right of freedom of transit in air commerce[23] through the navigable airspace of the United States”, codified in 1940 as 49 USC § 1304; which remains under the statutes in 2016. see 49 USC§ 40103.a.2. see US v. Causby 328 U.S.256, (1946) note 1a,2a. However, it erroneously asserted complete federal “possession” of all airspace, including that above private property. The Act stated: “The United States of America is declared to possess and exercise complete and exclusive national sovereignty in the airspace above the United States”. This claim was challenged and ultimately rejected by the Supreme Court in United States v. Causby, 328 US 266 (1946). The Court affirmed that airspace ownership is fundamentally tied to land ownership and cannot be unilaterally seized by the federal government without violating constitutional protections for property and individual rights.
Causby Case Summary U.S. v Causby 328 U.S. 256 (1946) and Causby v U.S. 75 F.262 Ct.Cl (1948):
- Government’s Claim: The U.S. government argued it owned all airspace and land grants didn’t include the space above private property. (Causby v. U.S., 1946)
- Court’s Decision: Disagreed. Low-altitude flights were a “direct invasion of a landowner’s domain”. (Causby v. U.S., 1946)
- Precedence: Cited Portsmouth Harbor v. U.S. (1922) - firing cannons over private land created an easement (limited right to use property). (Causby v. U.S., 1946)
- Government Overreach Rejected: The court rejected the government’s claim to own all airspace down to ground level. (Causby v. U.S., 1946)
- Landowner Compensation: The landowner received compensation for airspace “taken” by flights between 85 and 365 ft. (Causby v. U.S., 1946)
- “Ad Coelum” Doctrine Rejected: The court limited the idea that property rights extend infinitely upwards. (Causby v. U.S., 1946)
- Public Right of Way Established: Congress created a public right-of-way for air travel in “navigable” airspace above a certain altitude. (Causby v. U.S., 1946) - This right doesn’t extend to ground level.
- Private Airspace Defined: The court established a minimum altitude (above 365ft) where landowners have exclusive control. The Court added it would “question the validity of the regulation” had the minimum altitude invaded the privately held property below the altitude of 365ft. (Causby v. U.S., 1946)
- Physical Presence Not Required: Landowners retain control of this private airspace even without structures. (Causby v. U.S., 1946) - Airplane flights at low altitude are considered an appropriation of land use.
- Deed Grants Include Airspace: Land grants convey ownership of the airspace above the surface, making property three-dimensional. (Causby v. U.S., 1946)
- Federal Property Definition: The meaning of “property” under the Fifth Amendment is a federal question. (Causby v. U.S., 1946)
- Public Domain Above 365ft: The airspace above a certain altitude is considered public domain, but the exact limit wasn’t defined. (Causby v. U.S., 1946)
- Easement Created: Flights below 365ft were deemed an easement imposed on the landowner’s property. (Causby v. U.S., 1946)
- Compensation Awarded: The Court of Claims defined the “taken” property as the right to fly planes between 83ft and 365ft above the land. (Causby v. U.S., Ct. Cl. 1948)
- No Compensation Below 83ft: No flights occurred in this airspace, so no compensation was awarded.
- No Compensation Above 365ft: Public right-of-way exists above 365ft, so no compensation for flights at that altitude.
The Causby case produced two significant rulings. First, it dismissed the federal government’s claim to “possess” all airspace. Second, it modified the traditional concept of limitless upward property rights, recognizing the need for a public airspace above the altitude of 365. This decision established that property ownership has vertical boundaries. Between 1949 and 1956, courts consistently affirmed the principle that airspace is a component of land ownership by awarding compensation to landowners whose private airspace was used by the government for public purposes. See United States v. 48.10 Acres 144 F.Supp. 258 (1956), S. v. 4.43 Acres, 137 F. Supp. 567(1956), U.S. v. Theimer, 199 F. 2d 501(1952). The Federal Aviation Act of 1958 redefined the boundaries between public airspace and private property, overturning the previous assertion of complete federal control over all airspace. The Act acknowledged airspace as a property right and established the extent to which this right is subject to public air travel. A detailed examination of the 1958 legislation follows:
- Creation of the FAA: The Federal Aviation Agency (FAA) was established in 1958.
- FAA Authority: The FAA was granted authority to “control use of the navigable airspace of the United States, and guard the safety of air commerce.” see Sec.103(b)(1).
- Sovereignty Clarification: The term “of the United States” replaced “above the United States” in defining airspace sovereignty, shifting from a relative to a possessive term.
- Federal Possession Removed: The 1958 Act[24] eliminated the federal government’s claim to “possess” all airspace.
- Airspace as Property: The Act acknowledged airspace as a form of property.
- FAA Acquisition Powers: The FAA was granted limited authority to buy, sell, or condemn airspace for aviation purposes, requiring compensation to landowners.
- Navigable Airspace Defined: Navigable airspace was defined as airspace above minimum flight altitudes and necessary for safe takeoff and landing[25].
- Focus on Commercial Aviation: The initial definition of “aircraft” primarily concerned commercial airplanes.
- Limited FAA Authority: The FAA’s authority to acquire airspace was restricted by budget and the purpose of accommodating aircraft operations.
The Supreme Court has consistently affirmed that land ownership inherently includes control over the immediate airspace above it. Such as in Griggs v. Allegheny, 369 US 84, 89 supra (1962), the US Supreme Court recognized “the use of land presupposes the use of some of the airspace above it. Otherwise no home could be built, no tree planted, no fence constructed, no chimney erected”. Basic human activities like building, planting, and constructing fences require the use of airspace. Subsequent to the 1958 Federal Aviation Act, courts have differentiated between the airspace owned by landowners (lower altitudes) and the public easement for air travel (higher altitudes). This boundary has been established at approximately 500 feet, see Griggs v Allegheny 369 US 84 (1962) note#1; with extensive detail in Aaron v. United States, 311 F.2d 798, 801 Ct. Cl. (1963). Consequently, property deeds implicitly convey ownership of the airspace below this altitude, a zone hereafter referred to as “private airspace”. North Carolina State Law[26] was memorialized in US v. Causby 328 U.S. 256, 266 (1946) (“ownership of the space above the lands and waters of this State is declared to be vested in the several owners of the surface beneath”. NC Gen Stat § 63-12). Holding that flight by airplanes between the altitude of 83 and 365ft invade the landowners’ domain. Similarly, Georgia recognizes “that the owner of land has title to and a right to control the airspace above it to a distance of at least 75 feet above his buildings thereon; but we are not here holding that his title to the air space above his land is limited to an altitude of that height.” Chronster v. Atlanta, 99 Ga. 447,449, 108 S.E.2d 731 (1959).
The airspace below 500 feet is exclusively owned by landowners and is not subject to the public right of transit[27]. Any government use of this airspace requires explicit permission or just compensation. Courts have consistently upheld this principle, awarding damages to landowners for airspace infringements. The FAA’s authority to acquire airspace for airport operations reinforces the concept of private airspace ownership. If all airspace were public property, such acquisition powers would be unnecessary. The FAA’s suggested template for avigation easements[28] underscores the concept of private airspace ownership. By requiring landowners to relinquish future property rights and waive liability for potential damages, the FAA implicitly acknowledges that they are acquiring a new interest in the land. This process would be unnecessary if the government already possessed unrestricted rights to the airspace. The public’s right to fly is restricted to airspace above a specific altitude. Legal precedent, statutes, and regulations consistently recognize that landowners own the airspace above their property up to a certain height. As drone operations occur below this designated altitude, they infringe upon established property rights and constitute a violation of landowners’ constitutional protections.
Although the FAA’s authority may extend to regulating aircraft at low altitudes under the Commerce Clause, “it does not follow that [this space] are also subject to a public right of access” [29]. Furthermore, technological advancements in aircraft capabilities did not expand the public easement or navigational servitude for the transit of more modern aircraft [30]. Congress compared the FAA’s authority over aircraft to the Coast Guard’s jurisdiction over maritime vessels. Unlike the broad powers granted to the National Park Service over parklands, the FAA’s regulatory role over aircraft does not extend to discretionary control over underlying land ownership.
Rights, property, and sovereignty are fundamental concepts with established legal foundations. The unfounded claim by drone proponents that airspace is unowned territory contradicts centuries of legal precedent and statutory law. Such assertions, made from a position of assumed authority, require careful examination. Claims against established property rights cannot be made without substantial evidence and must respect constitutional guarantees of privacy and due process.
References
[1]: 28 Am. Jur.2d 618,2 Blackstone Commentaries 18(1836). See also, United States v. Causby, 328 U.S. 256,260 261(1946), citing I Coke, Institutes, 19th Ed. 1832, ch. 1, § 1(4a); 2 Blackstone, Commentaries, Lewis Ed. 1902, p. 18; 3 Kent, Commentaries, Gould Ed. 1896, p.621.
[2]: Paris Convention of 1919 (Convention for the Regulation of Aerial Navigation, Oct. 13, 1919, 11 L.N.T.S. 173) and the Pan American Convention on Commercial Aviation, U.S.-Cuba, Feb. 20, 1928, see 47 Stat. 1901).
[3]: Batten v. United States, 306 F. 2d 580, 585 (10th Cir. 1962).
[4]: PPL Montana v Montana 132 US 1215,1234 (2012) Capability of present-day craft made possible by technology advancements does not usurp existing property title or lesson associated valid rights.
[5]: Kaiser Aetna v. United States, 444 US 164,173-4 (1979) It cannot be presumed that the geographic space under Federal authority originating from the Commerce Clause is “also subject to a public right of access”.
[6]: 49 U.S.C. § 4011026, defining airspace as property; and 26CFR § 1.856-10, (d) & (f), identifies the use of airspace as an interest in ‘real’ property.
[7]: US Constitution IV, Article 2, “Congress shall have the power to dispose of and make all needful Rules and Regulations respecting the Territory or other Property belonging to the United States”.
[8]: The US Forest Service, National Park Service and Bureau of land Management.
[9]: Portsmouth v U.S, 260 U.S. 327 (firing cannonballs over private property is an appropriation of said property) . Even when the “space” is occupied by water “title necessarily carries with it control over the waters above them whenever the lands are subjected to use.” Illinois Central v. Illinois, 146 US 387 @452 – US Supreme Court 1892.
[10]: ‘Cuius est solum, eius est usque ad coelum et ad inferos’ W, Blackstone Commentaries (1765), Bury v. Pope, Cro. Eliz. 118 [78 Eng. Rep. 375] (1587), Baron Bernstein of Leigh v Skyviews and General Ltd [1978] QB 479: quoting Bouvé, Private Ownership of Airspace, 1 Air Law Rev. 232, 246–248,see also Corpus Juris Civilis, Accursius.
[11]: Fédération Aéronautique Internationale is the international body defining the boundary of ‘space’. While the US Air Force and NASA define the vertical limit to be 50 miles (or 80 kilometres) above sea level.
[12]: Section 6(a) of the Air Commerce Act of 1926, Pub. L. No. 69-254, 44 Stat. 568, 572, as amended by the Civil Aeronautics Act of 1938, Pub. L. No. 75-706, 52 Stat. 973, codified at 49 USC § 176 (a) (1940).
[13]: 19 CFR 122.49b for purposes of national security ‘Territorial Airspace of the United States’ means the airspace over the United States, its territories, and possessions, and the airspace over the territorial waters.
[14]: IV: Property Clause: “The Congress shall have power to dispose of… Property belonging to the United States”.
[15]: United States v. Causby 328 U.S. 256 (1946). Ending the concept of a vertically boundless property right based upon fixed points and lines on a spinning world extending upward indefinitely. [we could all own a star for a brief millisecond?].
[16]: US v Causby, 328 U.S. 256, 264, (1946).(“if the landowner is to have full enjoyment of the land, he must have exclusive control of the immediate reaches of the enveloping atmosphere. Otherwise, buildings could not be erected, trees could not be planted, and even fences could not be run” …“The fact that he does not occupy [space] in a physical sense — by the erection of buildings and the like — is not material. As we have said, the flight of airplanes, which skim the surface but do not touch it, is as much an appropriation of the use of the land as a more conventional entry upon it.”).
[17]: Griggs v Allegheny 369 US 84 supra (1962) @note#1; see Aaron v. United States, 311 F.2d 798, 801 Ct. Cl. (1963); Brown v United States 3 F.3d 1100 Ct Cl. (1996).
[18]: Griggs v. Allegheny County, 369 US 84,89 supra (1962) (“We see no difference between its responsibility for the air easements necessary for operation of the airport and its responsibility for the land on which the runways were built. Nor did the Congress…see 49 U. S. C. § 1109 for the payment of project costs,’ including the ‘costs of acquiring land or interests therein or easements through or other interests in air space.’ § 1112”).
[19]: codified in 1940 as 49 USC § 1304; which remains in the current statutes see 49 USC§ 40103.a.2.
[20]: 49 U.S.C § 40110, Adams v. United States, 230 Ct. Cl. 628 (Ct. Cl. 1982).
[21]: June 19,2014, Policy Memorandum 14-05, The NPS prohibits drone flight over National Parks under 36 CFR 1.5.
[22]: Federal Aviation Administration Re-authorization Act of 2016 sec 2128 8,(B) (Ensure “ that unmanned aircraft system activities are performed in a manner consistent with the Constitution and applicable laws”).
[23]: Under the 1926 Act, “as used in this Act, the term ‘air commerce’ means transportation in whole or in part by aircraft of persons or property for hire, navigation of aircraft in furtherance of a business, or navigation of aircraft from one place to another for operation in the conduct of a business. Pub. L. No. 69-254, § 1, 44 Stat. at 568, codified at 49 U.S.C. § 171 (1940). In the Act of 1938 sec,1(3) defines “Air commerce” means interstate, overseas, or foreign air commerce or the transportation of mail by aircraft or any operation or navigation of aircraft within the limits of any civil airway or any operation or navigation of aircraft which directly affects, or which mayendanger safety in, interstate, overseas, or foreign air commerce. Which remains current today. 49 USC§ 40102.a.3.
[24]: Compare 52 Stat. 1028 from 1926 and the current 49 USC § 40103(A)(1). The 1926 Act declared “to possess … the air space above the United States”, while the current statute is consistent with the court: “The United States Government has exclusive sovereignty of airspace of the United States” 49 USC § 40103(A)(1). The declaration to ‘possess’ was removed, and the adjective above the U.S. was replaced with of the U.S.
[25]: United States v. Causby 328 U.S. 256, 266 (1946) (holding that low altitude flight to be a “direct invasion of respondent’s domain”).
[26]: “we are mindful of the basic axiom that `[p]roperty interests . . . are not created by the Constitution. Rather, they are created and their dimensions are defined by existing rules or understandings that stem from an independent source such as state law.’ Preseault v. ICC, 494 US 1,20 supra (1990) citing others.
[27]: Oliver v. United States, 466 US 170 Supra (1984) note#15 (“unlicensed use of property by others is preemptively unjustified, as anyone who wishes to use the property is free to bargain for the right to do so with the property owner, cf. R. Posner, Economic Analysis of Law 10-13, 21 (1973). For these reasons, the law of trespass confers protections from intrusion by others far broader than those required by Fourth Amendment interests”.
[28]: https://www.faa.gov/airports/central/airports_resources/media/RPZeasement.pdf
[29]: [Kaiser Aetna v. United States, 444 US 164,173-4 (1979)].
[30]: [Montana LLP v Montana 132 US 1215, 1233-4, (2012)].
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