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From: Flying Machines Construction Operation

Successful aviation has evoked some peculiar things
in the way of legal action and interpretation of the law.

It is well understood that a man's property cannot
be used without his consent. This is an old established
principle in common law which holds good today.

The limits of a man's property lines, however, have
not been so well understood by laymen. According to
eminent legal authorities such as Blackstone, Littleton
and Coke, the "fathers of the law," the owner of realty
also holds title above and below the surface, and this
theory is generally accepted without question by the

Rights of Property Owners.

In other words the owner of realty also owns the sky
above it without limit as to distance. He can dig as
deep into his land, or go as high into the air as he desires,
provided he does not trespass upon or injure similar
rights of others.

The owner of realty may resist by force, all other
means having failed, any trespass upon, or invasion of
his property. Other people, for instance, may not enter
upon it, or over or under it, without his express permission
and consent. There is only one exception, and
this is in the case of public utility corporations such as
railways which, under the law of eminent domain, may
condemn a right of way across the property of an obstinate owner
who declines to accept a fair price for the

Privilege Sharply Confined.

The law of eminent domain may be taken advantage
of only by corporations which are engaged in serving
the public. It is based upon the principle that the
advancement and improvement of a community is of more
importance and carries with it more rights than the
interests of the individual owner. But even in cases where
the right of eminent domain is exercised there can be no
confiscation of the individual's property.

Exercising the right of eminent domain is merely
obtaining by public purchase what is held to be essential
to the public good, and which cannot be secured by private
purchase. When eminent domain proceedings are
resorted to the court appoints appraisers who determine
upon the value of the property wanted, and this value
(in money) is paid to the owner.

How It Affects Aviation.

It should be kept in mind that this privilege of the
"right of eminent domain" is accorded only to corporations
which are engaged in serving the public. Individuals
cannot take advantage of it. Thus far all aviation
has been conducted by individuals; there are no flying
machine or airship corporations regularly engaged in the
transportation of passengers, mails or freight.

This leads up to the question "What would happen if
realty owners generally, or in any considerable numbers.
should prohibit the navigation of the air above their
holdings?" It is idle to say such a possibility is ridiculous--
it is already an actuality in a few individual instances.

One property owner in New Jersey, a justice of the
peace, maintains a large sign on the roof of his house
warning aviators that they must not trespass upon his
domain. That he is acting well within his rights in doing
this is conceded by legal authorities.

Hard to Catch Offenders.

But, suppose the alleged trespass is committed, what
is the property owner going to do about it? He must
first catch the trespasser and this would be a pretty hard
job. He certainly could not overtake him, unless he
kept a racing aeroplane for this special purpose. It
would be equally difficult to indentify the offender after
the offense had been committed, even if he were located,
as aeroplanes carry no license numbers.

Allowing that the offender should be caught the only
recourse of the realty owner is an action for damages.
He may prevent the commission of the offense by force
if necessary, but after it is committed he can only sue
for damages. And in doing this he would have a lot of

Points to Be Proven.

One of the first things the plaintiff would be called
upon to prove would be the elevation of the machine.
If it were reasonably close to the ground there would,
of course, be grave risk of damage to fences, shrubbery,
and other property, and the court would be justified in
holding it to be a nuisance that should be suppressed.

If, on the other hand; the machine was well up in the
air, but going slowly, or hovering over the plaintiff's
property, the court might be inclined to rule that it
could not possibly be a nuisance, but right here the court
would be in serious embarrassment. By deciding that
it was not a nuisance he would virtually override the
law against invasion of a man's property without his
consent regardless of the nature of the invasion. By
the same decision he would also say in effect that, if one
flying machine could do this a dozen or more would
have equal right to do the same thing. While one machine
hovering over a certain piece of property may be
no actual nuisance a dozen or more in the same position
could hardly be excused.

Difficult to Fix Damages.

Such a condition would tend to greatly increase the
risk of accident, either through collision, or by the
of the aviators in dropping articles which might
cause damages to the people or property below. In
such a case it would undoubtedly be a nuisance, and
in addition to a fine, the offender would also be liable
for the damages.

Taking it for granted that no actual damage is done,
and the owner merely sues on account of the invasion
of his property, how is the amount of compensation to
be fixed upon? The owner has lost nothing; no part of
his possessions has been taken away; nothing has been
injured or destroyed; everything is left in exactly the
same condition as before the invasion. And yet, if the
law is strictly interpreted, the offender is liable.

Right of Way for Airships.

Somebody has suggested the organization of flying-
machine corporations as common carriers, which would
give them the right of eminent domain with power to
condemn a right of way. But what would they condemn?
There is nothing tangible in the air. Railways
in condemning a right of way specify tangible property
(realty) within certain limits. How would an aviator
designate any particular right of way through the air
a certain number of feet in width, and a certain distance
from the ground?

And yet, should the higher courts hold to the letter
of the law and decide that aviators have no right to
navigate their craft over private property, something
will have to be done to get them out of the dilemma, as
aviation is too far advanced to be discarded. Fortunately
there is little prospect of any widespread antagonism
among property owners so long as aviators refrain
from making nuisances of themselves.

Possible Solution Offered.

One possible solution is offered and that is to confine
the path of airships to the public highways so that nobody's
property rights would be invaded. In addition,
as a matter of promoting safety for both operators and
those who may happen to be beneath the airships as
they pass over a course, adoption of the French rules
are suggested. These are as follows:

Aeroplanes, when passing, must keep to the right, and
pass at a distance of at least 150 feet. They are free
from this rule when flying at altitudes of more than 100
feet. Every machine when flying at night or during
foggy weather must carry a green light on the right,
and a red light on the left, and a white headlight on the

These are sensible rules, but may be improved upon
by the addition of a signal system of some kind, either
horn, whistle or bell.

Responsibility of Aviators.

Mr. Jay Carver Bossard, in recent numbers of _Fly_,
brings out some curious and interesting legal points in
connection with aviation, among which are the following:

"Private parties who possess aerial craft, and desire
to operate the same in aerial territory other than their
own, must obtain from land owners special permission
to do so, such permission to be granted only by agreement,
founded upon a valid consideration. Otherwise,
passing over another's land will in each instance amount
to a trespass.

"Leaving this highly technical side of the question,
let us turn to another view: the criminal and tort liability
of owners and operators to airship passengers. If
A invites B to make an ascension with him in his machine,
and B, knowing that A is merely an enthusiastic
amateur and far from being an expert, accepts and is
through A's innocent negligence injured, he has no
grounds for recovery. But if A contracts with B, to
transport him from one place to another, for a consideration,
and B is injured by the poor piloting of A,
A would be liable to B for damages which would result.
Now in order to safeguard such people as B, curious to
the point of recklessness, the law will have to require
all airship operators to have a license, and to secure
this license airship pilots will have to meet certain
requirements. Here again is a question. Who is going
to say whether an applicant is competent to pilot a balloon
or airship?

Fine for an Aeronaut.

"An aeroplane while maneuvering is suddenly caught
by a treacherous gale and swept to the ground. A crowd
of people hasten over to see if the aeronaut is injured,
and in doing so trample over Tax-payer Smith's garden,
much to the detriment of his growing vegetables and
flowers. Who is liable for the damages? Queer as it
may seem, a case very similar to this was decided in
1823, in the New York supreme court, and it was held
that the aeronaut was liable upon the following grounds:
'To render one man liable in trespass for the acts of
others, it must appear either that they acted in concert,
or that the act of the one, ordinarily and naturally produced
the acts of the others, Ascending in a balloon is
not an unlawful act, but it is certain that the aeronaut
has no control over its motion horizontally, but is at
the sport of the wind, and is to descend when and how
he can. His reaching the earth is a matter of hazard.
If his descent would according to the circumstances
draw a crowd of people around him, either out of curiosity,
or for the purpose of rescuing him from a perilous
situation, all this he ought to have foreseen, and must be
responsible for.'

Air Not Really Free.

"The general belief among people is, that the air is
free. Not only free to breathe and enjoy, but free to
travel in, and that no one has any definite jurisdiction
over, or in any part of it. Now suppose this were made a
legal doctrine. Would a murder perpetrated above the
clouds have to go unpunished? Undoubtedly. For felonies
committed upon the high seas ample provision is
made for their punishment, but new provisions will have
to be made for crimes committed in the air.

Relations of Owner and Employee.

"It is a general rule of law that a master is bound to
provide reasonably safe tools, appliances and machines
for his servant. How this rule is going to be applied
in cases of aeroplanes, remains to be seen. The aeroplane
owner who hires a professional aeronaut, that is,
one who has qualified as an expert, owes him very little
legal duty to supply him with a perfect aeroplane. The
expert is supposed to know as much regarding the machine
as the owner, if not more, and his acceptance of
his position relieves the owner from liability. When
the owner hires an amateur aeronaut to run the aeroplane, and
teaches him how to manipulate it, even though
the prescribed manner of manipulation will make flight
safe, nevertheless if the machine is visibly defective, or
known to be so, any injury which results to the aeronaut
the owner is liable for.

As to Aeroplane Contracts.

"At the present time there are many orders being
placed with aeroplane manufacturing companies. There
are some unique questions to be raised here under the
law of contract. It is an elementary principle of law
that no one can be compelled to complete a contract
which in itself is impossible to perform. For instance,
a contract to row a boat across the Atlantic in two
weeks, for a consideration, could never be enforced because
it is within judicial knowledge that such an undertaking
is beyond human power. Again, contracts formed
for the doing of acts contrary to nature are never
enforcible, and here is where our difficulty comes in. Is
it possible to build a machine or species of craft which
will transport a person or goods through the air? The
courts know that balloons are practical; that is, they
know that a bag filled with gas has a lifting power and
can move through the air at an appreciable height.
Therefore, a contract to transport a person in such manner
is a good contract, and the conditions being favorable
could undoubtedly be enforced. But the passengers'
right of action for injury would be very limited.

No Redress for Purchasers.

"In the case of giving warranties on aeroplanes, we
have yet to see just what a court is going to say. It is
easy enough for a manufacturer to guarantee to build a
machine of certain dimensions and according to certain
specifications, but when he inserts a clause in the contract to
the effect that the machine will raise itself from
the surface of the earth, defy the laws of gravity, and
soar in the heavens at the will of the aviator, he is to
say the least contracting to perform a miracle.

"Until aeroplanes have been made and accepted as
practical, no court will force a manufacturer to turn out
a machine guaranteed to fly. So purchasers can well
remember that if their machines refuse to fly they have
no redress against the maker, for he can always say,
'The industry is still in its experimental stage.' In
contracting for an engine no builder will guarantee that
the particular engine will successfully operate the aeroplane.
In fact he could never be forced to live up to
such an agreement, should he agree to a stipulation of
that sort. The best any engine maker will guarantee
is to build an engine according to specifications."



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