Lawsuit over shot-down drone could set U.S. law
In 1946, the US Supreme Court determined 83 feet was the height US property owners could claim in regard to flights over their property. In my opinion, that is still considered reasonable and the courts should leave it at that.
Almost, but not quite.
The courts ruled that the 83 feet was an
easement, one to which the government was not entitled and Causeby was paid for his chickens by the US Government.
Read the entire SCOTUS case opinion.
The summary:
"Without defining a specific limit, the Court stated that flights over the land could be considered a violation of the Takings Clause if they led to "a direct and immediate interference with the enjoyment and use of the land."
The meat of it can be found in Sec 258.
"The navigable airspace which Congress has placed in the public domain is "
airspace above the minimum safe altitudes of flight prescribed by the Civil Aeronautics Authority." 49 U.S.C. § 180. If that agency prescribed 83 feet as the minimum safe altitude, then we would have presented the question of the validity of the regulation.
But nothing of the sort has been done. [emphasis mine]
The path of glide governs the method of operating -- of landing or taking off. The altitude required for that operation is not the minimum safe altitude of flight which is the downward reach of the navigable airspace. The minimum prescribed by the authority is 500 feet during the day and 1000 feet at night for air carriers (Civil Air Regulations, Pt. 61, §§ 61.7400, 61.7401, Code Fed.Reg.Cum.Supp., Tit. 14, ch. 1) and from 300 to 1000 feet for other aircraft depending on the type of plane and the character of the terrain."
Then..
"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. The principle is recognized when the law gives a remedy in case overhanging structures are erected on adjoining land. [
Footnote 9] The landowner owns at least as much of the space above the ground as the can occupy or use in connection with the land.
See Hinman v. Pacific Air Transport, 84 F.2d 755.
Then...
"No rigid Constitutional rule, in my judgment, commands that the air must be considered as marked off into separate compartments by imaginary metes and bounds in order to synchronize air ownership with land ownership. I think that the Constitution entrusts Congress with full power to control all navigable airspace. Congress has already acted under that power. It has by statute,
44 Stat. 568, 52 Stat. 973, provided that "the United States of America is . . . to possess and exercise complete and exclusive national sovereignty in the air space [over] the United States."
In short, the Court set the standard that implies two important considerations.
-The court determined that an owner has air rights only insofar as they're necessary for the use and enjoyment of his land. Thus one can't prevent planes from flying overhead — (nor can one demand beyond a certain degree of privacy) even if it means scaring chickens, cows, horses, or damaging crops (except the owner of the plane will likely be liable for/taking of an improper easement or tortious interference with the land owner's commerce or enjoyment of land-product).
-The country in which the land in question resides rules the airspace beyond a landowner's ability to use and enjoy it (sovereign law). In a public park area for instance, the government owns it from the tops of the blades of grass to the heavens.
Contrary to many rumors and beliefs being published in the drone community, there currently is no "ruler" that measures the distance from the ground to the government's aerial property line.
Jonathan Rupprecht has an excellent Powerpoint on the topic; follow him on his webpage or read his books.
This isn't likely to ever change. Expect more regulation and control within those airspaces, but don't expect the actual findings of 1944, 1946, 1967, and 1976 to be changed. Too many sovereignities, too many global understandings, and too many complications would ensue.
The USA Today article is fraught with misunderstandings, including this 83' statement. Additionally, while SCOTUS has not addressed the topic, many, many other courts have, and are precedent law to which SCOTUS will likely look to for guidance *if* Boggs ever gets that far.
Further, Boggs will most certainly not "set law for US if he wins this case." It'll be a precedent. It's not a law, and it isn't something that will likely make it to SCOTUS. He may not even win, as it appears his flightlogs don't clearly prove he was at 200'. His lawsuit will likely raise some very interesting questions and baselines that will be written into law, however.
Essentially, navigable air space was defined as the sky above "the minimum safe altitudes of flight" as determined by federal regulators — typically 500 to 1,000 feet above the ground.If we stay below 400', we're well outside of these minimum safe altitudes used by Civil Aviation.
Unless we're within 5 miles of an airfield whether public or private.
The pilot of an aircraft, with or without passengers or cargo, will always have more rights, right of way, and dominion over UAV operators.
As they should, IMO.
