Owning Airspace

[Chip]

Best "READ" the court´s decision. They explicitely say "The airspace, apart from the immediate reaches above the land, is part of the public domain. We need not determine at this time what those precise limits are. Flights over private land are not a taking, unless they are so low and so frequent as to be a direct and immediate interference with the enjoyment and use of the land." So, if you fly low and look for Karen, this is clearly an appropriation. If you pass at adequate height, no lingering, no harassment - you are within the law and will not incur any "partial taking"

You are suggesting I READ the court's decision again. Okay, can you direct me to what part exactly? Did I misstate something?

"The airspace, apart from the immediate reaches above the land, is part of the public domain."

What do you think that means, apart from the immediate reaches above the land? Are the "immediate reaches" just one half of one millimeter off the ground everywhere in the country just like the FAA claims? Or might those "immediate reaches" be more like 500 feet, where navigable airspace actually begins? Perhaps something in between?

 

[Chip]

simply flying "low" and looking for "Karen" is not within the opinion of the ruling. It has to be low and "frequent" AND interfere with the enjoyment and use of the land. A drone, unless it does it every day, does not constitute all the requirements. And to top that, if you are harassing a landowner with a drone, there are many other laws that come into play.

I agree 100%. That is the way to distinguish Causby and state laws governing trespass, nuisance, harassment, stalking, invasion of privacy, voyeurism, etc., provide an adequate remedy. But this is also why I say the FAA does not have sole authority to determine what can and cannot be done with a drone flying over private property.

 

[Chip]

"If the landowner is to have full enjoyment of the land, he must have exclusive control of the immediate reaches of the enveloping atmosphere." Causby v United States

Excerpt from supreme court decision:

The air above the minimum safe altitude of flight prescribed by the Civil Aeronautics Authority is a public highway and part of the public domain, as declared by Congress in the Air Commerce Act of 1926, as amended by the Civil Aeronautics Act of 1938. Pp. 328 U. S. 260-261, 328 U. S. 266. Flights below that altitude are not within the navigable air space which Congress placed within the public domain, even though they are within the path of glide approved by the Civil Aeronautics Authority. Pp. 328 U.S. 263-264.

The Supreme Court is saying that the immediate reaches of the enveloping atmosphere are exclusively controlled by the property owner and they extend up to the minimum safe altitude for flight.

In 2022, the minimum safe altitude for flight of aircraft is set forth in 14 CFR § 91.119 - Minimum safe altitudes: General.

Except when necessary for takeoff or landing, no person may operate an aircraft below the following altitudes:

(a) Anywhere. An altitude allowing, if a power unit fails, an emergency landing without undue hazard to persons or property on the surface.

(b) Over congested areas. Over any congested area of a city, town, or settlement, or over any open air assembly of persons, an altitude of 1,000 feet above the highest obstacle within a horizontal radius of 2,000 feet of the aircraft.

(c) Over other than congested areas. An altitude of 500 feet above the surface, except over open water or sparsely populated areas. In those cases, the aircraft may not be operated closer than 500 feet to any person, vessel, vehicle, or structure.

(d) Helicopters, powered parachutes, and weight-shift-control aircraft. If the operation is conducted without hazard to persons or property on the surface -

(1) A helicopter may be operated at less than the minimums prescribed in paragraph (b) or (c) of this section, provided each person operating the helicopter complies with any routes or altitudes specifically prescribed for helicopters by the FAA; and

(2) A powered parachute or weight-shift-control aircraft may be operated at less than the minimums prescribed in paragraph (c) of this section.

Federal Register :: Request Access

www.ecfr.gov

Does the minimum safe altitude of flight equal any measurable distance above ground?

 

[Vic Moss]

"If the landowner is to have full enjoyment of the land, he must have exclusive control of the immediate reaches of the enveloping atmosphere." Causby v United States

Excerpt from supreme court decision:

The air above the minimum safe altitude of flight prescribed by the Civil Aeronautics Authority is a public highway and part of the public domain, as declared by Congress in the Air Commerce Act of 1926, as amended by the Civil Aeronautics Act of 1938. Pp. 328 U. S. 260-261, 328 U. S. 266. Flights below that altitude are not within the navigable air space which Congress placed within the public domain, even though they are within the path of glide approved by the Civil Aeronautics Authority. Pp. 328 U.S. 263-264.

The Supreme Court is saying that the immediate reaches of the enveloping atmosphere are exclusively controlled by the property owner and they extend up to the minimum safe altitude for flight.

In 2022, the minimum safe altitude for flight of aircraft is set forth in 14 CFR § 91.119 - Minimum safe altitudes: General.

Except when necessary for takeoff or landing, no person may operate an aircraft below the following altitudes:

(a) Anywhere. An altitude allowing, if a power unit fails, an emergency landing without undue hazard to persons or property on the surface.

(b) Over congested areas. Over any congested area of a city, town, or settlement, or over any open air assembly of persons, an altitude of 1,000 feet above the highest obstacle within a horizontal radius of 2,000 feet of the aircraft.

(c) Over other than congested areas. An altitude of 500 feet above the surface, except over open water or sparsely populated areas. In those cases, the aircraft may not be operated closer than 500 feet to any person, vessel, vehicle, or structure.

(d) Helicopters, powered parachutes, and weight-shift-control aircraft. If the operation is conducted without hazard to persons or property on the surface -

(1) A helicopter may be operated at less than the minimums prescribed in paragraph (b) or (c) of this section, provided each person operating the helicopter complies with any routes or altitudes specifically prescribed for helicopters by the FAA; and

(2) A powered parachute or weight-shift-control aircraft may be operated at less than the minimums prescribed in paragraph (c) of this section.

Federal Register :: Request Access

www.ecfr.gov

Does the minimum safe altitude of flight equal any measurable distance above ground?

Drones aren't regulated under Part 91. So none of this applies here.

 

[KLRSKIR]

Don't confuse ownership with control. Just because you own the airspace, you don't necessarily control it.

Also, there will be 3 or 4 of use on Ken Heron's show talking about this guy and his video. I'll post a link once we tape it. It'll be a week or so before we all have free time to tape it.

I for one am very much looking forward to this. Thanks for the heads-up!

 

[Chip]

Drones aren't regulated under Part 91. So none of this applies here.

I guess it depends on how you define "here." If "here" is a discussion of Causby, and the right of an "aircraft" to fly over private property at less than one hundred feet with no one but the FAA having any say in the matter, it is certainly relevant. The US Supreme Court made key distinction between navigable airspace which starts at 500 feet and the immediate reaches of the enveloping atmosphere.

 

[Vic Moss]

I guess it depends on how you define "here." If "here" is a discussion of Causby, and the right of an "aircraft" to fly over private property at less than one hundred feet with no one but the FAA having any say in the matter, it is certainly relevant. The US Supreme Court made key distinction between navigable airspace which starts at 500 feet and the immediate reaches of the enveloping atmosphere.

SCOTUS hasn't defined navigable airspace.

 

[Chip]

SCOTUS hasn't defined navigable airspace.

Did the court in Causby not say that the immediate reaches of the enveloping atmosphere are exclusively controlled by the property owner and they extend up to the minimum safe altitude for flight which is the navigable airspace within the public domain?

 

[Vic Moss]

Did the court in Causby not say that the immediate reaches of the enveloping atmosphere are exclusively controlled by the property owner and they extend up to the minimum safe altitude for flight which is the navigable airspace within the public domain?

The Causby case is probably the most misquoted case ever used.

The Justices did not define navigable airspace. They simply said that the gov’t deprived Mr Causby of enjoyable use of his property by repeatedly flying low over it.

The 83’ was specific to that case and the Justices said each future case must be judged in the own merit when it comes to usable control by landowners

So no, SCOTUS did not set 500’ as navigable, nor did they say anything about 100’. The limit was very specific to that case and that case only.

And as mentioned was about taking of the land w/o compensation by the DOD.

 

[Chip]

The Causby case is probably the most misquoted case ever used.

The Justices did not define navigable airspace. They simply said that the gov’t deprived Mr Causby of enjoyable use of his property by repeatedly flying low over it.

The 83’ was specific to that case and the Justices said each future case must be judged in the own merit when it comes to usable control by landowners

So no, SCOTUS did not set 500’ as navigable, nor did they say anything about 100’. The limit was very specific to that case and that case only.

And as mentioned was about taking of the land w/o compensation by the DOD.

Yes, I think the case is often misquoted but not by me here.

"navigable air space" is defined as "airspace above the minimum safe altitudes of flight prescribed by the Civil Aeronautics Authority." 49 U.S.C. § 180. And it is provided that "such navigable airspace shall be subject to a public right of freedom of interstate and foreign air navigation."

The navigable airspace which Congress has placed in the public domain is "airspace above the minimum safe altitudes of flight prescribed by the Civil Aeronautics Authority." 49 U.S.C. § 180.

The airspace is a public highway. Yet it is obvious that, if the landowner is to have full enjoyment of the land, he must have exclusive control of the immediate reaches of the enveloping atmosphere.

The airspace, apart from the immediate reaches above the land, is part of the public domain.

How do you reconcile these passages with the argument that all airspace down to the ground is controlled solely by the FAA? Where does that argument come from?

 

[Vic Moss]

Yes, I think the case is often misquoted but not by me here.

"navigable air space" is defined as "airspace above the minimum safe altitudes of flight prescribed by the Civil Aeronautics Authority." 49 U.S.C. § 180. And it is provided that "such navigable airspace shall be subject to a public right of freedom of interstate and foreign air navigation."

Drones have thrown 49 USC out the window. Our safe navigable airspace in literally from the ground up. So that definition is changing every time we fly.

The navigable airspace which Congress has placed in the public domain is "airspace above the minimum safe altitudes of flight prescribed by the Civil Aeronautics Authority." 49 U.S.C. § 180.

The airspace is a public highway. Yet it is obvious that, if the landowner is to have full enjoyment of the land, he must have exclusive control of the immediate reaches of the enveloping atmosphere.

Not exclusive. We have transitory allowances. And there are no safe minimum altitudes for drones.

The airspace, apart from the immediate reaches above the land, is part of the public domain.

How do you reconcile these passages with the argument that all airspace down to the ground is controlled solely by the FAA? Where does that argument come from?

That comes from the Congress and the FAA themselves. They control all navigable airspace. And when it comes to drones, the really is from the ground up. Congress gave the FAA sole responsibility for safety of the NAS. That means all of the NAS.

Immediate reaches has never been defined. It is case specific.

 

[Mikieh]

The only time I was approached on my droning rights was when I hovered a noisy GoPro Karma drone in one spot for about 5 or ten minutes while shooting boats in a canal . I was off to one side of a man’s property about 80 feet up and the homeowner came after me saying it was unnatural and his wife was upset. I was totally surprised by him and apologized saying I was just shooting the boats. He left off saying I couldn’t fly over his land, which is a bunch of baloney. Anyway, I always try to keep my footprint low while in the air and not offend anyones sensitive psyche. Even though lawn mowers and leaf blowers are far more annoying!

 

[Hawkwind]

Thoughts on this? Basically says you own down and up ( Heaven to ground )on your property. FAA has granted "easement" for flights over property.

Well, this video was a waste of time to watch. This is what I gathered from his overly verbose monologue, he posits:
1) You own your property and everything above and below it
2) Aircraft have an easement to pass over it.

With the clickbait title, I was expecting him to say that you can prevent aircraft from flying over your property.

 

[rawman001]

Not sure which is worse, his Latin pronunciation or his legal advice.

 

[T303]

With apologies to The Cruel Sea:
"get a better lawyer, son...."

 

[tvc184]

The Causby case is probably the most misquoted case ever used.

The Justices did not define navigable airspace. They simply said that the gov’t deprived Mr Causby of enjoyable use of his property by repeatedly flying low over it.

The 83’ was specific to that case and the Justices said each future case must be judged in the own merit when it comes to usable control by landowners

So no, SCOTUS did not set 500’ as navigable, nor did they say anything about 100’. The limit was very specific to that case and that case only.

And as mentioned was about taking of the land w/o compensation by the DOD.

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……

 

[Vic Moss]

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……

Correct.

There is very little relevance between drones and Causby. The vast majority of the time (like in this thread) the argument is misused and misquoted.

Your assessment is sport on.

 

[smashse]

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.

 

[Chip]

Our safe navigable airspace in literally from the ground up. So that definition is changing every time we fly.

Where do you get this definition that "navigable airspace" is from the ground up? Is this a statute or regulation?

Not exclusive. We have transitory allowances. And there are no safe minimum altitudes for drones.

If you are claiming "transitory allowances" to fly drone over private property, then are you not conceding private property owners possess air rights?

Are you saying that you have the legal right to fly your drone at any height over anyone's private backyard in the United States and no one would have the right to stop you except for the FAA?

That comes from the Congress and the FAA themselves. They control all navigable airspace. And when it comes to drones, the really is from the ground up. Congress gave the FAA sole responsibility for safety of the NAS. That means all of the NAS.

Where did the FAA get the legal authority to control airspace over private property from the ground up? Are you saying it just happened naturally as soon as UAVs developed the ability to fly?

Immediate reaches has never been defined. It is case specific.

The FAA now claims that the navigable airspace is from the ground up everywhere in the country. That is not case specific at all. Is that not a problem for your analysis?

 

[smashse]

Are you saying that you have the legal right to fly your drone at any height over anyone's private backyard in the United States and no one would have the right to stop you except for the FAA?


Where did the FAA get the legal authority to control airspace over private property from the ground up? Are you saying it just happened naturally as soon as UAVs developed the ability to fly?



The FAA now claims that the navigable airspace is from the ground up everywhere in the country. That is not case specific at all. Is that not a problem for your analysis?

Yes, I have the legal right to fly at any altitude, given all other regulations.

Where did the FAA get the right? The US Congress. And that's been since I believe 1958, so nothing to do with UAVs.

FAA has claimed ground up since at least 1958. Now it depends on what you are doing. If someone is on their land, you can't flyover them or endanger them, otherwise you are breaking the FAA rules. Kind of like you can fly a private plane at 5000', and be legal, but if you are carrying 10 kilos of cocaine its illegal. FAA doesn't stop you, but law enforcement would. So in a backyard, if you are at 10' peering in windows, there are plenty of laws that make that illegal, just happens its not the flight that's illegal.

I find it funny that everyone, even on the boards, think its totally fine to fly a Cessna at 700' with a telephoto lens, but freak out when a drone is at 150' transitioning to another location...