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 lega
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."