Who owns the air?

While unmanned aerial devices are a relatively new phenomenon, especially for non-military uses, the question of property rights relating to airspace is a debate that has spanned decades. As drone use amplifies, so do the legal complexities surrounding both recreational and commercial flight, as demonstrated by a recent Kentucky lawsuit.  

John Boggs, a drone operator and hobbyist, used a drone device to take aerial photographs of the nearby Kentucky landscape. When resident William Merideth spotted the drone above his property, he destroyed the device by shooting it out of the air. Boggs is now suing Merideth for the damages to his device, claiming that while Merideth has property rights to his land, he has no right to the air above his property.

But who owns the air? Over time, the definition of navigable airspace has been in dispute. [1] As use of airspace for public or public good purposes has increased, the government has shifted the boundary of air rights closer and closer to the earth. We have seen shifts following the use of airplanes, helicopters and now drones. The most recent aeronautical development has the government claiming that anything above the blades of grass in your backyard is “navigable airspace.”

In a Federal Aviation Administration (FAA) fact sheet, released in December 2015, the federal agency claims that it has jurisdiction over drones and the airspace they occupy. (Existing state and local laws — as well as those currently being considered — should express consistency with federal laws in order to avoid contradictions and a “patchwork quilt” of regulations.) Likewise, according to this news release, the FAA claims control of “air safety from the ground up,” spotlighting its authority over aircrafts’ interaction with property as well as land and water vehicles.

Citing these FAA regulations, Boggs’ argument would seem valid. He was legally flying his aircraft in public airspace — airspace under the control of the government. But ambiguity is introduced when analyzing United States v. Causby, a 60-year-old case involving a farmer’s complaint that low-flying military aircraft was disrupting his chicken farm business. In its judgment, the court ruled that while “ownership of land [does not extend] to the periphery of the universe,” “[t]he landowner owns at least as much of the space above the ground as [he] can occupy or use in connection with the land.” Here, the famer received compensation for interference with his property, despite the interference coming from the air. This case was a takings case regarding the federal government’s use of airspace, but the questions regarding jurisdiction and private property rights apply.

While the Boggs and Merideth dispute, with $1,500 in question, seems insignificant, the argument is one that will likely be echoed within courtrooms in the coming months. As businesses become involved in the utilization of drones — and the airspace they occupy — clarity within ownership and regulation of both the devices and the airspace is demanded.