Bombers, Chickens, and Who Owns the Sky

September 24, 2015
Case Summaries

Unless you have been trapped on a deserted island, you have probably heard of drones - and not just the ones that our military uses to drop bombs.  Small unmanned, remotely controlled aircraft of varying sizes and complexity.  I’ve tried to fly a small one.  It was fun.  Until I crashed it into the middle of my swimming pool.  There is a reason I never accomplished my childhood dream of being an astronaut.

But drones are not just fun playthings for hobbyists.  Many entrepreneurs and established businesses like Amazon and Google envision the day when drones are used to deliver packages, to take photographs, assist in surveying, or for a host of other creative business opportunities.  Yet the commercial use of drones flies into a host of regulatory and legal obstacles.

If Air Delivery Co. wants to deliver a package by drone from point A to the Sam Smith residence at Point B, the most efficient air path will go over property owned by neither Air Delivery Co. or Sam Smith at a relatively low altitude.  For more than 700 years, this would have violated those property rights under the common law principle of “Cuius est solum, eius est usque ad coelum et ad inferos” (“whoever's is the soil, it is theirs all the way to Heaven and all the way to hell.”)  Thus, the answer of who owns the sky was: “Whoever owns the ground beneath it”.  

Before you rush out to sue Southwest Airlines for trespassing when it flies over your property at 20,000 feet, however, consider the outcome of low flying bombers, terrified chickens, and the death of a common law principle.

Hitler was still in power, Pearl Harbor was only six months in the past, the Allies had not yet landed at Normandy, and the United States military needed the airport outside Greensboro, North Carolina for its bombers, transports, and fighters.  Landings and take-offs repeated day and night. Day after day.  Although no munitions were ever dropped by accident, the bombers still claimed their own victims.  

Seven hundred yards away from the airport’s runway sat the home of Thomas Lee and Tinie Causby, and close by stood the barn and chicken coops that housed their livelihood - chickens.  Beginning in May 1942, the bombers and other military planes passed directly over the Causby farm in large numbers and close together.  Frequently they passed less than 70 feet above their house and less than 20 feet above their tallest tree.  The noise and nighttime glare was bad enough.  But the chickens… those poor chickens.  Frightened out of their respective minds, the Causby’s chickens flew into the walls killing themselves in the process.  As many as six to ten chickens a day committed poultrycide.  Before the Causby’s gave up on their chicken business one month later, the casualty count was 150 chickens, one commercial chicken farm, nights of lost sleep, and the Causby’s peace of mind.

Ultimately, the Causby’s sued the federal government under the takings clause of the Fifth Amendment, claiming that under the common law principle of “Cuius est solum, eius est usque ad coelum et ad inferos,” the federal government had taken their property without their permission and  thus owed the Causby’s fair value of the property.  The case came before the United States Supreme Court in 1946 - raising this legal issue for the first time in American history.

In United States v. Causby, 328 U.S. 256 (1946) the Supreme Court rang the death knell on the common law principle, stating that the “doctrine has no place in the modern world.”  

The air is a public highway, as Congress has declared. Were that not true, every transcontinental flight would subject the operator to countless trespass suits. Common sense revolts at the idea.

Causby, 328 U.S. At 261.

Yet it is obvious that, 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.

In 1926, Congress had declared that the skies above 500 feet belonged to the public domain.  Twenty years later, the Supreme Court in Causby, held that the owners of the land owned the sky, at least up to 83 feet (the elevation at which the planes passed over the property).  The question then remains - who owns the sky between 83 feet and 500 feet?  

The coming “Drone Wars” over the commercial use of drone technology will undoubtedly provide answers to this question.

Randy Merritt

Randy Merritt has practiced law for nearly twenty years in Los Angeles and now in Elk Grove.  Always searching for new opportunities to learn, Randy spends much of his free time reading about a  broad variety of subjects, including history, communication, public policy, and anything written by Stephen King and Neil Gaiman.  When he isn't reading, writing, or spending time with his family, Randy enjoys another of his passions - baseball.  Click on the picture for more information about Randy.

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