The entry of an aircraft into the airspace over land belonging to another person is privileged and lawful unless the entry is in such a manner as to interfere with the landowner's use of the property beneath the airspace. -- 2A C.J.S. Aeronautics & Aerospace § 9

1. Overview

After weeks of putting up with it buzzing around your house, you finally shoot down your neighbor's drone. Your neighbor sues you. Or, another example, a large black helicopter swoops down over your backyard, barely skimming the tops of your pine trees. Can you do more than shake your fist?


Who owns the air above your property? You do. To a limit.


In property law, when you purchase land, you own what's underneath -- yes, all the way down to the center of the earth -- and the air above it . . . but obviously not to the moon. In legalese, you own as much of the air above the surface as you can reasonably use in connection with the surface.  It's common sense: you can't use your land if you didn't own the air above the surface. In short, land is not just about the dirt; it's also about the sky. 


But how far up is "reasonable use"? Well, this is where the federal government comes in, which has exclusive sovereignty of U.S. airspace. The operative term "navigable airspace" (just like waterways, remember?) and Congress delegated to the FAA the ability to define “navigable airspace” and the authority to regulate it.


2. Navigable Airspace


According to FAA Regulations, “navigable airspace” refers to 

  • the minimum flight altitude of 1,000 feet while flying over congested areas or open air assemblies of persons is 1,000 feet above the highest obstacle within a horizontal radius of 2,000 feet; 
  • an altitude of 500 feet over uncongested areas, airplanes can operate at an altitude of 500 feet above the surface.
  • Taking off and landing

Airplanes can operate even lower when over “open water or sparsely populated areas.” But those aircraft must not get closer than 500 feet to any person, vehicle, or structure, except if:

  • the airplane needs to make an emergency landing, and the pilot must know that landing will not create an "undue hazard"
  • when necessary for takeoff or landing; and
  • in an in-flight emergency requiring immediate action. 


3. Government Overreach: How Much Power Over Your Airspace?


How low is too low before the government infringes upon your property? The FAA argues that it has authority to regulate aircraft in U.S. airspace at any altitude because according to Federal law, the FAA can "develop plans and policy for the use of the navigable airspace and assign by regulation or order the use of the airspace necessary to ensure the safety of aircraft and the efficient use of airspace."


In addition, Congress gave the FAA the authority to prescribe “regulations and minimum standards for other practices, methods and procedure the [FAA] finds necessary for safety in air commerce and national security.” Under this section, the FAA regulates amateur rockets, motorized paragliders, and other vehicles below 500 feet.


Finally, even if navigable airspace does not extend to the surface, the FAA has argued that it may regulate below navigable airspace because it can prescribe regulations “on the flight of aircraft for navigating, protecting, and identifying aircraft” and “protecting individuals and property on the ground.” So, the government can trespass upon your airspace in order to protect you and your land. From what? Deranged sheep?


4. Example


Say you live in a secluded area and the FEMA installs a military camp in nearby Forest Service land. Soon large military aircraft flies as low as 8o feet over your property farmer’s property. The deafening noise caused your entire family exhaustion from the lack of sleep. Even worse, the noise from the aircraft frighten your herd of sheep, causing them to try to jump the fence and die in the attempt.


Do you have a solid case against the government? Doubtful. Per Congress and its establishment of the minimum safe altitude (MSA), flight paths for taking off and landing is public airspace. Therefore, the government likely wins.


5. Conclusion


Here are two important principles regarding airspace below the MSA from an important Supreme Court case:

  1. You have “exclusive control of the immediate reaches of the enveloping atmosphere"; and
  2. You own at least as much of the space above the ground as you can occupy or use in connection with your land.

However, these principles remain unclear, which is why airspace is still a controversial topic.


Today, the hot button issue regarding airspace is the use of drones. Contrary to the above example, drones are quiet, and they often fly well below 80 feet. As a result of increased drone technology and use, it could be that “navigable airspace” extends to the surface.


At the moment, the FAA thinks it can regulate any and all airspace, but the law is unclear.  In reality, it's the states that should oppose the FAA overreach by arguing that regulating airspace below 500 feet is part of their traditional police powers. (But that raises a whole 'nother issue, doesn't it?)


So, what if you see a drone hovering over your property? If it's within a stone's throw, well. . . .


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