Air Rights Law

What legislation are the States enacting to regulate UAS ?

At least 38 states considered legislation related to UAS in the 2017 legislative session. Eighteen states–Colorado, Connecticut, Florida, Georgia, Indiana, Kentucky, Louisiana, Minnesota, Montana, Nevada, New Jersey, North Carolina, Oregon, South Dakota, Texas, Utah, Virginia and Wyoming–passed 24 pieces of legislation.

Three states–Alaska, North Dakota and Utah–have adopted resolutions addressing UAS this year. Alaska SCR 4 continues the Task Force on UAS and specifies additional membership and duties of the task force. North Dakota SCR 4014 supports the development of the UAS industry in the state, congratulates the FAA on the first Beyond Visual Line of Sight Certificate of Authorization in the United States, and encourages further cooperation with the FAA to safely integrate UAS into the national airspace. Utah’s resolution, HCR 21, supports the building of a NASA drone testing facility and Command Control Center in Tooele County, Utah.

What is Causby v. United States ?

The Causby case is considered the seminal supreme court decision that clarified the disposition of air rights in the new era of aviation. The case involved a North Carolina farmer whose property was adjacent to a civilian airfield converted to a military airbase in WW2. Large, very noisy bombers and fighter planes were constantly passing over the roof of the Causby home causing stress and material damage to Mr. Causby’s poultry business. Causby sued the federal government on Fifth Amendment grounds because the constant overflight of military aircraft impacted the enjoyment of his property and caused material damage to his livelihood without compensation.

The court held the public’s right of flight does not extend downward to the earth’s surface.

Key findings:

  1. The ancient “coelum doctrine” that a property owner controls the air above their property to infinity was deemed no longer relevant in the era of commercial aviation.
  2. 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.
  3. 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. The minimum safe altitudes are defined in FAA statute 91.119 as being 1000 feet in urban areas and 500 feet in rural areas.

Does the FAA Part 107 regulation nullify Air Rights ?

The FAA Part 107 regulations govern the operation of UAV (Unmanned Aerial Vehicles or Drones). A controversy has arisen over the maximum altitude limit for drones defined in this regulation as 400 feet. FAA regulations set minimum safe altitudes (1000′ and 500′) for public air space so the decision was made for safety reasons to separate drone flights from existing air traffic.

Many believe Part 107 nullifies air rights by defining a special zone from ground level to 400 feet where drones can operate without causing trespass. This is incorrect. There is ongoing debate as to how drones will be integrated into low-altitude air space but there is no conceivable outcome that would eliminate the concept of trespass specifically for drones.

How are Air Rights cases typically handled ?

There are six scenarios where air rights encroachments are typically litigated:

  1. Artificial, permanent encroachment from adjoining land such as houses, eaves, cornices, walls, boards and wires;
  2. Artificial, temporary encroachment from adjoining land such as reaching arm over fence, horse kicking through fence, shooting;
  3. Natural encroachment such as trees, shrubs and vines;
  4. Right to prevent natural elements from continuing to enter adjoining land such as water, air, light;
  5. Disputes between two claimants of interest in land such as grantor and grantee, lessor and lessee, contractees, heirs and the like;
  6. Aviation cases (i.e. avigation easement, aerial trespass).

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