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 courts.
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.
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 identify 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 trouble.
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 carelessness 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 front.
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."