Owning Airspace

[Tufargon]

Above and below your property? I didn't watch the waste of a video, but may watch Vic's Reply to it, should be good. To own the minerals/oil/gold beneath the surface you also have to have mineral rights, which are often severed from the surface rights.

So the theory that everyone owns everything above and below, well I could say that there is a 22 acre parcel in the Indian Ocean that I own then, and every ship that passes through owes me tolls.

This is correct to a point. As a professional liscensed Real Estate Appraiser I went through thousands of contracts and know for a fact that probably 99% of property owners do not have mineral rights unless it is stated and passed down to the new owners in that contract (I've only ever seen one in a contract). Mineral rights have long been lost on properties unless they are passed on in a sale. Sure you can dig a pool but if you find gold then it belongs to the last mineral rights owner of the property which is probably died a long time ago and so the state would probably take/claim it. As for property near water, if the water raises and lowers you will own to the waters edge so your property will get larger and smaller as the tide goes down and up. It's something they teach in Appraisal school. There were many lawsuits on that because land owners would take fishermen to court for fishing around their docks saying it's their property but they would lose the cases.

 

[Chip]

I have read Causby and agree with your opinion.

In Causby not only did they not make a ruling of 500 feet, they had no problem with airplanes flying down to 83 feet as far as airspace usage. Causby also had trees on his property and said that the airplanes going by at 83 feet, barely cleared the trees. Again, SCOTUS had no issue with that. They did not rule that it was unlawful entry or trespassing.

What they did rule and perhaps is overlooked by some people, was not the height of the airplanes as an issue but the fact that the airplanes created such noise it rendered the property unusable. They were flying heavy bombers during World War II so maybe B17s or B24s. Yes at full takeoff power those aircraft would create a deafening noise and did so often enough to render the property unusable. The noise and landing lights were the problem.

The Court ruled that in doing so the federal government has seized the usefulness of the property just as if the had gone onto the property and taken it.

SCOTUS also said in that ruling that the ancient doctrine of owning airspace (and I quote), “But that doctrine has no place in the modern world”.

Causby was about such an annoyance caused by the federal government as to render property unusable so requiring compensation per the Fifth Amendment.

Can a drone cause such an annoyance? Probably but Causby set no rules on airspace and seems to have tossed out the ownership of airspace over property.

I suspect that drones have little relevance to Causby because the noise isn’t the issue as in Causby. Since drones could not be conceived back then, I suspect we will see another case or two in the future.

Until then……

Here is a summary of a case decided by the Michigan Court of Appeal in 2021 which you may find interesting:

LONG LAKE TOWNSHIP v TODD AND HEATHER MAXON

https://www.courts.michigan.gov/siteassets/case-documents/uploads/OPINIONS/FINAL/COA/20210318_C349230_47_349230.OPN.PDF

The issue was the legality of the use of a drone by Long Lake Township to fly over defendants' private property and take aerial images without permission or any other specific legal authorization. The Township relied on those aerial photographs to commence suit against defendants, alleging that they were in violation of a zoning ordinance, nuisance law, and a prior settlement agreement between the parties. The Michigan court of appeal entered an order barring any use of the aerial images.

Verbatim Excerpt:
"The FAA regulations, 14 CFR part 107,5 require drone operators to keep drones within visual observation at all times, fly drones no higher than 400 feet, refrain from flying drones over human beings, and obtain a certification. Such rules reflect the fact that drones are qualitatively different from airplanes and helicopters: they are vastly smaller and operate within little more than a football field’s distance from the ground. A drone is therefore necessarily more intrusive into a person’s private space than would be an airplane overflight. Furthermore, unlike airplanes, which routinely fly overhead for purposes unrelated to intentionally-targeted surveillance, drone overflights are not as commonplace, as inadvertent, or as costly. In other words, drones are intrinsically more targeted in nature than airplanes and intrinsically much easier to deploy. Furthermore, given their maneuverability, speed, and stealth, drones are—like thermal imaging devices—capable of drastically exceeding the kind of human limitations that would have been expected by the Framers not just in degree, but in kind."

Verbatim Excerpt Regarding Causby and Aerial Trespass:

"Although the United States Supreme Court rejected the ancient understanding that land ownership extended upwards forever, landowners are still entitled to ownership of some airspace above their properties, such that intrusions into that airspace will constitute a trespass no different from an intrusion upon the land itself. Drones fly below what is usually considered public or navigable airspace. Consequently, flying them at legal altitudes over another person’s property without permission or a warrant would reasonably be expected to constitute a trespass.

We decide this matter based upon defendants’ reasonable expectation of privacy—critical to which is that any reasonable person would have expected a low altitude drone overflight to be trespassory and exceptional, whether the drone flew as high as a football-field length or flew directly up to an open bathroom window."

 

[Chip]

Federal Aviation Administration Fact Sheet
State and Local Regulation of Unmanned Aircraft Systems (UAS)
December 17, 2015
https://www.faa.gov/uas/resources/policy_library/media/UAS_Fact_Sheet_Final.pdf

The FAA told the public in 2015 that: "Laws traditionally related to state and local police power – including land use, zoning, privacy, trespass, and law enforcement operations – generally are not subject to federal regulation."

FAA Statement–Federal vs. Local Drone Authority
Friday, July 20, 2018
https://www.faa.gov/newsroom/faa-statement-federal-vs-local-drone-authority

The FAA told the public in 2018 that: "Laws traditionally related to state and local police power – including land use, zoning, privacy, and law enforcement operations – generally are not subject to federal regulation."

The FAA stripped out the word “trespass.” Why would that be? Did the Constitution change?

 

[Skyryder]

The FAA told the public in 2018 that: "Laws traditionally related to state and local police power – including land use, zoning, privacy, and law enforcement operations – generally are not subject to federal regulation."

That's only with regards to landing, not flying over airspace. You left out the key sentence before that:

"However, these powers are not the same as regulation of aircraft landing sites, which involves local control of land and zoning. Laws traditionally related to state and local police power – including land use, zoning, privacy, and law enforcement operations – generally are not subject to federal regulation."

 

[smashse]

Here is a summary of a case decided by the Michigan Court of Appeal in 2021 which you may find interesting:

LONG LAKE TOWNSHIP v TODD AND HEATHER MAXON

https://www.courts.michigan.gov/siteassets/case-documents/uploads/OPINIONS/FINAL/COA/20210318_C349230_47_349230.OPN.PDF

The issue was the legality of the use of a drone by Long Lake Township to fly over defendants' private property and take aerial images without permission or any other specific legal authorization. The Township relied on those aerial photographs to commence suit against defendants, alleging that they were in violation of a zoning ordinance, nuisance law, and a prior settlement agreement between the parties. The Michigan court of appeal entered an order barring any use of the aerial images.

Verbatim Excerpt:
"The FAA regulations, 14 CFR part 107,5 require drone operators to keep drones within visual observation at all times, fly drones no higher than 400 feet, refrain from flying drones over human beings, and obtain a certification. Such rules reflect the fact that drones are qualitatively different from airplanes and helicopters: they are vastly smaller and operate within little more than a football field’s distance from the ground. A drone is therefore necessarily more intrusive into a person’s private space than would be an airplane overflight. Furthermore, unlike airplanes, which routinely fly overhead for purposes unrelated to intentionally-targeted surveillance, drone overflights are not as commonplace, as inadvertent, or as costly. In other words, drones are intrinsically more targeted in nature than airplanes and intrinsically much easier to deploy. Furthermore, given their maneuverability, speed, and stealth, drones are—like thermal imaging devices—capable of drastically exceeding the kind of human limitations that would have been expected by the Framers not just in degree, but in kind."

Verbatim Excerpt Regarding Causby and Aerial Trespass:

"Although the United States Supreme Court rejected the ancient understanding that land ownership extended upwards forever, landowners are still entitled to ownership of some airspace above their properties, such that intrusions into that airspace will constitute a trespass no different from an intrusion upon the land itself. Drones fly below what is usually considered public or navigable airspace. Consequently, flying them at legal altitudes over another person’s property without permission or a warrant would reasonably be expected to constitute a trespass.

We decide this matter based upon defendants’ reasonable expectation of privacy—critical to which is that any reasonable person would have expected a low altitude drone overflight to be trespassory and exceptional, whether the drone flew as high as a football-field length or flew directly up to an open bathroom window."

One thing to note on this case, was that this was a Government Entity, using the drone operation for surveillance, and NOT just some random person flying a drone. In the case they specifically mention that, this was about surveillance (even though the township was in violation of trespass laws, it was because of their stated purpose which was to gain photographs of the persons backyard). It would be the same as the township hiring a photographer to enter your back yard to take images without permission.

Which then brings me back to, why can a person fly in a Cessna at 1500' and take aerial images of my house with a telephoto lens and develop them, and try to sell them to me, without my permission, but I can't fly over a property even with my camera fully horizontal? The logic there escapes me.

Also, this would seem not to hold up well, because they are saying that if the township were to pay more, I.E. using a heli to do the same thing, that it would be fine... Why does the price of it matter? Really it would not, the real reason is that the "blight" has to be visible with the naked eye from off the property and a reasonable height. It was not.

However my point is, the purpose of the flight was for surveillance of the property, which they said was NOT reasonable, but this was not conclusive for a normal drone pilot NOT taking pictures of the property, and simply overflying. The trespass was the images taken, not the overflight. It is kind of like illegal search.

Also, the FAA controls the airspace.

 

[smashse]

Speaking of the Maxon case... Here's from a lawyer:
"March 16, 2022, the Supreme Court of Michigan ordered “the Clerk to schedule oral argument on the application. MCR 7.305(H)(1). The appellant shall file a supplemental brief within 42 days of the date of this order addressing whether it violated the appellees’ Fourth Amendment rights by using an unmanned drone to take aerial photographs of the appellees’ property for use in zoning and nuisance enforcement.”

They then vacated the oral arguments, meaning the Supreme Court won't hear it. However, please note that this is once again, about a township using drones for aerial investigations without warrants.

More info: One moment, please...

So in reality, this case isn't even settled, so we are really stretching to say that's the law of the land while it is still in court and being appealed.

 

[Chip]

Speaking of the Maxon case... Here's from a lawyer:
"March 16, 2022, the Supreme Court of Michigan ordered “the Clerk to schedule oral argument on the application. MCR 7.305(H)(1). The appellant shall file a supplemental brief within 42 days of the date of this order addressing whether it violated the appellees’ Fourth Amendment rights by using an unmanned drone to take aerial photographs of the appellees’ property for use in zoning and nuisance enforcement.”

They then vacated the oral arguments, meaning the Supreme Court won't hear it. However, please note that this is once again, about a township using drones for aerial investigations without warrants.

More info: One moment, please...

So in reality, this case isn't even settled, so we are really stretching to say that's the law of the land while it is still in court and being appealed.

Nice find and clarification. I agree 100% with you on this:

So in reality, this case isn't even settled, so we are really stretching to say that's the law of the land while it is still in court and being appealed.

Right. I agree. But I think the case shows that the FAA's position, that it has sole and exclusive control over any drone flying over private property at one inch AGL, is at least debatable.

My interest in this issue is partially because it came up in the DC appellate court hearing in Race Day Quads (Remote ID) case. The presiding judge seemed surprisingly interested in the FAA's right to and reason for, wanting or needing to implement drone tracking and surveillance on small drones flying below the tree line or in rural areas.

 

[Chip]

The FAA told the public in 2018 that: "Laws traditionally related to state and local police power – including land use, zoning, privacy, and law enforcement operations – generally are not subject to federal regulation."

That's only with regards to landing, not flying over airspace. You left out the key sentence before that:

"However, these powers are not the same as regulation of aircraft landing sites, which involves local control of land and zoning. Laws traditionally related to state and local police power – including land use, zoning, privacy, and law enforcement operations – generally are not subject to federal regulation."

I am not sure I understand what you are saying. I printed and compared the two documents side-by-side and noted the elimination of the word "trespass." There are, of course, other changes worth noting but I picked the most puzzling. One of those changes is re-characterizing certain laws from consultation with FAA recommended to FAA has sole legal authority.

If you are saying that "laws traditionally related to state and local police power – including land use, zoning, privacy, trespass, and law enforcement operations – generally are not subject to federal regulation," refers exclusively to aircraft landing sites, I must respectfully disagree. But, I would also say that confusion is natural given the changes in FAA policies and legal positions.

One other key point: the 2015 Fact Sheet did not say that regulation of low altitude drone overflights was the exclusive province of the FAA. It said only that "federal courts strictly scrutinize state and local regulation of overflight."

State and Local Regulation of Unmanned Aircraft Systems (UAS) December 17, 2015
https://www.faa.gov/uas/resources/policy_library/media/UAS_Fact_Sheet_Final.pdf

FAA Statement–Federal vs. Local Drone Authority Friday, July 20, 2018
https://www.faa.gov/newsroom/faa-statement-federal-vs-local-drone-authority

 

[Chip]

One thing to note on this case, was that this was a Government Entity, using the drone operation for surveillance, and NOT just some random person flying a drone. In the case they specifically mention that, this was about surveillance (even though the township was in violation of trespass laws, it was because of their stated purpose which was to gain photographs of the persons backyard). It would be the same as the township hiring a photographer to enter your back yard to take images without permission.

Which then brings me back to, why can a person fly in a Cessna at 1500' and take aerial images of my house with a telephoto lens and develop them, and try to sell them to me, without my permission, but I can't fly over a property even with my camera fully horizontal? The logic there escapes me.

Also, this would seem not to hold up well, because they are saying that if the township were to pay more, I.E. using a heli to do the same thing, that it would be fine... Why does the price of it matter? Really it would not, the real reason is that the "blight" has to be visible with the naked eye from off the property and a reasonable height. It was not.

However my point is, the purpose of the flight was for surveillance of the property, which they said was NOT reasonable, but this was not conclusive for a normal drone pilot NOT taking pictures of the property, and simply overflying. The trespass was the images taken, not the overflight. It is kind of like illegal search.

Also, the FAA controls the airspace.

All good points. Especially:

The purpose of the flight was for surveillance of the property, which they said was NOT reasonable, but this was not conclusive for a normal drone pilot NOT taking pictures of the property, and simply overflying. The trespass was the images taken, not the overflight. It is kind of like illegal search.

Many states have invasion of privacy laws which create potential liability for overflight by drone coupled with intentional and inappropriate image capture. These laws often use the specific term "surveillance." Just as you say, a transitory passing over property at reasonable height with no or incidental image capture should be distinguished from targeted and intentional image capture.

There are a few states which have enacted pure aerial trespass laws like Nevada which split the airspace below 400 feet and seem most vulnerable to court challenge as pre-empted by FAA regulation:

NRS: CHAPTER 493 - GENERAL PROVISIONS

NRS 493.103  Unmanned aerial vehicles: Action for trespass against owner or operator; exceptions; award of treble damages for injury to person or property; award of attorney’s fees and costs and injunctive relief.

1.  Except as otherwise provided in subsection 2, a person who owns or lawfully occupies real property in this State may bring an action for trespass against the owner or operator of an unmanned aerial vehicle that is flown at a height of less than 250 feet over the property if:

(a) The owner or operator of the unmanned aerial vehicle has flown the unmanned aerial vehicle over the property at a height of less than 250 feet on at least one previous occasion; and

(b) The person who owns or occupies the real property notified the owner or operator of the unmanned aerial vehicle that the person did not authorize the flight of the unmanned aerial vehicle over the property at a height of less than 250 feet. For the purposes of this paragraph, a person may place the owner or operator of an unmanned aerial vehicle on notice in the manner prescribed in subsection 2 of NRS 207.200.

2.  A person may not bring an action pursuant to subsection 1 if:

(a) The unmanned aerial vehicle is lawfully in the flight path for landing at an airport, airfield or runway.

(b) The unmanned aerial vehicle is in the process of taking off or landing.

(c) The unmanned aerial vehicle was under the lawful operation of:

(1) A law enforcement agency in accordance with NRS 493.112.

(2) A public agency in accordance with NRS 493.115.

(d) The unmanned aerial vehicle was under the lawful operation of a business registered in this State or a land surveyor if:

(1) The operator is licensed or otherwise approved to operate the unmanned aerial vehicle by the Federal Aviation Administration;

(2) The unmanned aerial vehicle is being operated within the scope of the lawful activities of the business or surveyor; and

(3) The operation of the unmanned aerial vehicle does not unreasonably interfere with the existing use of the real property.

3.  A plaintiff who prevails in an action for trespass brought pursuant to subsection 1 is entitled to recover treble damages for any injury to the person or the real property as the result of the trespass. In addition to the recovery of damages pursuant to this subsection, a plaintiff may be awarded reasonable attorney’s fees and costs and injunctive relief.