defendant. Defendant had sought to build upon his property so that the building would protrude over the projecting part of the plaintiff's building. It was held that trespass could not be sustained for the encroachment upon the column of air over this part of the building, because the rights in the column of air were in the defendant as owner of the soil beneath, and not in the plaintiff. It is a reasonable conclusion that the court recognized that rights in the airspace must be strictly appurtenant to the soil beneath. In the present period wherein the old strictness in respect of the forms of action is largely disregarded, it is difficult to determine whether or not the cases most nearly analogous apply to the problem now in hand. Thus in Clifton v. Bury, 45 the plaintiff complained of damage to his land by reason of the shooting over it done from the Wimbledon rifle ranges close by. Though the bullets sped clear across one of his farms situated in a declivity about seventy-five feet below the range, the court found for the plaintiff. It has been said 46 that this case impliedly overrules the dictum of Lord Ellenborough in Pickering v. Rudd, but a careful reading of the opinion of Sir Henry Hawkins will show that the gravamen of the action was the actual interference with the enjoyment of the soil: 47 certainly it will cause no unreasonable alarm which renders the occupation of that part of the farm less enjoyable than the plaintiff is entitled to have it.48 If the view favored by the writer be adopted, then the dictum of Lord Ellenborough is quite maintainable, though it may have led him to a wrong conclusion in the particular case. Each case must rest upon its own circumstances and special facts. 45 (1887) 4 T. L. R. 8. If the passage 46 Engineering. June, 1909, p. 793; L. Fox, "The Law of Aërial Navigation," in North American Review, July, 1909, p. 101. 47 Reference is here made only to so much of the case as refers to the shooting of bullets in vacuo. Plaintiff in fact also proved that shots fired across another of his farms actually fell upon the land. 48 (1887) 4 T. L. R. 8, at page 9. As to this farm, "his Lordship did not look upon the ground of complaint as constituting a trespass in the strict technical sense of the term; but he did look upon such firing of bullets as grievances, which, under the circumstances, afforded the plaintiff a legal cause of action." Ibid. of aircraft over a piece of land really interferes with its actual enjoy ment, the courts are able to grant a remedy for the wrong in fact. The mere passage through the airspace above the land should not in itself constitute the wrong. It is in this light that we interpret the language of Sir Frederick Pollock: 49 Clearly it would be a trespass to sail over another man's land in a balloon (much more in a controllable airship) at a level within the height of ordinary buildings and it might be a nuisance to keep a balloon hovering over the land at even a greater height. Sir Frederick is equally of the opinion that a trespass is not constituted by passage through the airspace at the great height reached by modern projectiles. He seems inclined to believe “that the scope of possible trespass is limited by that of effective possession," though unfortunately does not further pursue the thought. Doubtless we may refer it to the essential requirement of trespass queere clausum fregit that there should be possession, or the right to possession, in the complaint. The suggestion is novel inasmuch as it regards this requirement as objective as well as subjective. But though this phraseology has already gained currency, it is more specious than precise, because the scope of effective possession as far as it concerns the airspace is indeterminate and will vary with the advance in the art of air navigation. Furthermore it leaves open the airspace for the acquisition of rights not necessarily appurtenant to the right of enjoyment of the soil. Such a result would be inconsistent with and harmful to the state of society among free peoples and is not warranted by the principles of either the common or the civil law. The maxim of the law already referred to should not be extended to conditions which did not exist and were not conceived of at the time of its origin. Its phraseology, usque ad coelum, has been referred to by an English judge as at best a “fanciful phrase.” 50 The 49 Pollock on Torts, 8th ed., p. 348. 50 Brett, Master of the Rolls, in Wandsworth Board of Works v. United Telephone Company, (1884) 13 Q. B. D. 904, at p. 915. In this case it was held that the maxim had no application to streets and highways, for the reason that only such property passes to the community as is necessary for and appurtenant to their use as such. view here favored, by which the land-owner's rights in the airspace are regarded as strictly appurtenant to the soil and to be accorded only when essential to the enjoyment of the latter, will tend to reconcile the interests of the land-owner with the progress of the new art. The latter is deserving of every reasonable encouragement through law. On the other hand, it should not be over-favored at the expense of individual interests. There are extremists who declare indeed that the whole of the airspace is a highway free for all, or if not so already, it must be so declared by legislation, or by an exercise of eminent domain. Apart from the legality or practicability of such a procedure, the discussion of which would lead us too far afield, it is well to remember the primitive philosophy so naïvely expressed by Lord Coke, and which is true to-day as it was then: This element of the earth (the land) is preferred before the other elements: first and principally, because it is for the habitation and resting place of man; for man cannot rest in any of the other elements, neither in the water, air or fire.51 The solution of the conflict of interests seems to have been accomplished very well on the continent of Europe. Even before the advent of progress in air navigation, the Code of the Canton of Grisons provided: 52 Property in land extends to the airspace (above) and the earth beneath, so far as these may be of productive value to the owner. The German Civil Code 55 also recognizes the extension of property upwards and downwards, but in a clause 53 for which air navigation was largely responsible,54 it is declared: But the owner can not prohibit such interferences undertaken at such a height or depth that he has no interest in the prevention. The Swiss Code reaches the same result by an affirmative statement that property in land extends in the airspace and under the 51 Coke upon Littleton, ut cit. 62 In effect 1862; § 185. 53 German Civil Code (in effect 1900), § 905. 64 Meurer, op. cit., p. 14. 55 To take effect 1912; § 667. earth so far as there is any material interest in the exercise of ownership. The opening of the airspace to the aërial navigator brings with it, on his part, concomitant responsibility. The law of gravitation is constant and inevitable and he who seeks temporarily to overcome its effects must reckon with an extraordinary responsibility for injuries to person or property in the event of failure. "We have powers of controlling the material world and holding its various energies ready to be directed to our ends which were wholly unknown to our forefathers. With those powers have come risks which were equally unknown to them." 56 If the owner of land upon a highway is held to the duty of insuring safety as against objects falling and injuring the passer-by, how much more should the aërial navigator be held to a like degree of responsibility. Meili well points out that in the modern world we are supposed to look forwards, on both sides of us and behind us and now we are called upon to look even above us! 5 A New York case 58 decided in 1822, thus early manifested the inclination of the judiciary, for there an aëronaut was held responsible not only for the direct damage caused by the descent of his balloon into the garden of the plaintiff, but even for the remote damage caused by the crowding of strangers upon the property to satisfy their curiosity. 57 Numerous other question of private law suggest themselves in connection with the development of air navigation but none are considered by the writer as ripe for useful discussion at this time. (B) Criminal Law. It is a common observation that modern technical discovery greatly increases both the facility with which crimes are committed and the difficulty of detecting and capturing the offender. This applies also to the development of aërial navigation. Irrespective of crimes. 56 Pollock & Wright, The Expansion of the Common Law, pp. 125–6. 57 Das Luftschiff und die Rechtswissenschaft, p. 14. In the event of collision between voyaging air craft, the determination as to who is the guilty party will be a fine point indeed for the solution of the sufferers beneath! Ibid., p. 15. 58 Guille v. Swann, (1822) 19 Johns. 381; 10 Amer. Dec. 234. of violence made possible from above and the increased difficulty of capture suggested by a new medium of escape, crimes of a fiscal nature, such as smuggling, must be dealt with in ways yet to be devised. In countries like our own, with long land boundaries and sparsely settled frontiers, aircraft, once become of frequent use, will present serious problems to customs authorities. Major Baden-Powell sees for all states great difficulty in the detection of smuggling when pursued in the air, especially at night and under certain weather. conditions. He arrives at the rather hasty conclusion "that customs, in the main, will have to be abolished." 59 It is interesting to note the ease with which the Britisher mentally arrives at a result which, to say the least, would startle the average American observer. Much discussion has been devoted in Europe in respect of the proper jurisdiction to take cognizance of crimes committed aboard aircraft. This again is largely due to the analogy sought to be drawn from principles determining the jurisdiction for crimes committed upon the high seas. Furthermore, it is realized that voyaging aircraft may readily escape from the jurisdiction of the state below and, in case of an offence begun and completed in the air, the peace of that state may have been violated in only a very narrow sense. It has been thought desirable to make the national state always competent, assuming of course that aircraft will be nationalized in the manner of ships of the sea. Thus, in Fauchille's draft code we find the following provision : 60 Crimes and delicts committed on board of aircraft by members of the crew or other persons on board, no matter in what part of the airspace, fall under the competence of the tribunals of the nation to which the aircraft belongs and shall be judged according to the laws of such nation, no matter what be the nationality of the authors (of crime) or the victims (thereof). This would deprive the local state of the jurisdiction which circumstances might make it desirable if not imperative for it to have. It also violates the basic principle of Anglo-American legal practice, which is territoriality. Jurisdiction should be concurrent, not ex 59 "Law in the Air,” in National Review, March, 1909, pp. 78, 82. |