By: David Riahi
Some of our oldest and most popular books, playwrights, and movies have embodied the notion that our home is a special place, unlike any other. This is seen in The Odyssey, where the hero Odysseus embarks on a seemingly endless journey, battling Gods and defying death, for one simple reason- he wants to go home.[1]But as we all know, “There is no place like home” and The Odyssey isn’t the only feature to make this message clear. [2]It’s no surprise, we have a special value for our homes, philosophically, emotionally, and legally. In fact, as seminal caselaw shows, the right to exclude others from our property has been defined as one of the most paramount rights of our bundle of sticks that define property law. [3]This right to exclusion solidifies our value of the property we own and our right to privacy. Further, it allows for a clear cut, and cost-effective way to handle property disputes.
As technology advanced, and air travel became common, we then needed to handle issues of airspace trespass. Old jurisprudence allowed us to own all land below our property, and all air above our property- but this caused a large impediment for air travel, so this framework was unworkable.[4]Had such a framework continued, aircraft owners, the federal government, and airlines would all have had to obtain easements from private property owners to fly over their land, no matter how high they were.[5]Needless to say, this would be a costly operation method that would cripple air travel. This resulted in the creation of a “navigable airspace” which allowed airspace to be considered public domain if the use was above 500 feet.[6]This navigable airspace allowed for the growing use of aircrafts to function uninterrupted by the private interests of landowners. However, since the law was unclear on what property rights landowners can exercise below 500 feet of airspace, landowners were then faced with different issues- drones. [7]
Drones pose a new set of murky issues to be decided by the courts. Drones bring a host of issues as they can fly at a low altitude, take off from almost anywhere, are relatively inexpensive, are available to the public, and can be purchased with high resolution recording devices attached to them. Although drones are an innovation that allows for recreation, scientific development, and research, they frequently invade areas below the navigable airspace and pose a right to privacy issue.
Legislation is largely unsettled in this area. Some scholars, such as Professor Troy Rule, have made recommendations that the law should embrace our right to exclude up to the navigable airway. [8]Such a recommendation illuminates the benefits of the exclusionary rule. If states adopted this rule, not only is one of our most cherished rights in our bundle of sticks solidified, but resolution of disputes below the navigable airway would become quicker, easier, and cheaper.
However, only time will tell if the our long-cherished value of “home” will win the day and make way for an exclusionary-based rule for airspace use below 500 feet. Given out rapid advance and availability of air technology, our traditional notions of privacy and property ownership may be further compromised for a larger purpose.
[1]homer, the odyssey,(Trans. Robert Fitzgerald et al, 2005).
[2]L. Frank Baum, The Wonderful Wizard of Oz.
[3]Kaiser Aetna v. United States, 444 U.S. 164, 176 (1979);
[4]See Troy A. Rule, Airspace in an Age of Drones, 95 B.U. L. REv. 155, 174 (2015). Citing, Cnty. of Westchester v. Town of Greenwich, Conn., 793 F. Supp. 1195, 1204 (S.D.N.Y. 1992), rev’d sub nom. Cnty. of Westchester, N.Y. v. Comm’r of Transp., 9 F.3d 242 (2d Cir. 1993)
[6]See Civil Aeronautics Act of 1938 §§ 1(24), 3; Air Commerce Act of 1926§ 10.
[7]See Colin Cahoon, Low Altitude Airspace: A Property Rights No-Man’s Land, 56 J.
AIR L. & COM. 157, 161 (1990).
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