Aviation

The air space above the high seas and unoccupied territory is admittedly free to all nations and persons. It is with the air space above territorial lands and waters that conflicting views of the rights of nations are concerned. According to Hazeltine (Law of the Air), there are the freedomof-the-air theories, which comprise absolute and partial freedom either by lateral zone divisions or limited exercise of rights; and the sovereignty-of-the-air theories which may also be classified into absolute sovereignty and limited sovereignty groups. The zone and limited sovereignty theories are usually based on analogy to the three mile limit of sovereignty over the high seas. This analogy is obviously unsound both on account of the unsafe condition of states if alien and hostile air-craft were permitted to sail over them above a prescribed height, and the difficulty of calculating the exact or even approximate height of air-craft. The absolute sovereignty theory is probably better justified on reason and practicality. Rights of aliens to unhindered passage and rules for alighting could be settled by international agreement. See, 4 Am. J. Int. L. 95; 45 L. J. 402; 126 L. T. 168. It is said to be clear that the territorial jurisdiction of a state must extend to the atmosphere above its soil if the state is to be able to protect itself from airships which would otherwise have it in their power to violate the laws of the state, or to inflict injury upon the citizens of the state in case of accident to the airship. On the other ships through its territorial atmosphere, subject to the domestic regulations imposed upon the aerial traffic of its own citizens. In this respect the territorial atmosphere of a state may be considered as governed by Lbe same rules as the territorial waters of the state. Hershey 232. With regard to the rights of a landowner in the air space above his land, there are also divergent views of absolute and limited rights. The Roman Law regarded the air as res publico,, free to all persons. The French Code, on the other hand, defines land as including everything above and below the surface. The German Imperial Code adopts this same theory but limits the landowner's right to exclude persons from using the air space, to his actual interest in such exclusion. The Swiss Code is similar. At common law the old maxim of cujus est solum, ejus est usque ad caelum has led to much confusion. In its origin it had reference to the right of the owner to have the air space above his land remain in its natural state and to have excluded therefrom anything which would detract from his enjoyment of the land. 4 Am. J. Int. L. 95; 71 Cent. L. J. 1; 46 Can. L. J. 4S0. The flying of fowls, the passage of smoke and of wireless messages over another's land have never suggested such a conflict with the maxim as would amount to a trespass. Even navigation by balloons and aeroplanes for a century or more has been tacitly permitted. See 4 Camp. 219; 3 Bengal L. R. 43. But such passage in every instance must not by its frequency amount to a nuisance. The degree of peril and inconvenience to the landowner defines his legal rights; 14 Law.Notes 69; 16 Case and Comment 216. Under the commerce clause in the United States constitution it would seem that Congress has power to regulate aerial navigation; in the absence of such regulation, the individual states may legislate for their own exclusive territorial air space. As to the liability of aviators for accidents it has been held that they are liable for all damage both direct and consequential; Guille v. Swan, 19 Johns. (N. Y.) 381, 10 Am. Dec. 234; Conney v. Ass'n, 76 N. II. 60, 71) Atl. 517. This result is based on the view that all aerovehicles are dangerous devices and as such are operated at the aviator's peril. It is conceivable however that as aerial science develops, so that the present dangers and uncertainties are obviated, the stricter rule of liability will give way to one holding the aviator liable only for negligence. It has been urged that the more liberal rule would aid materially in the development of aerial science. The intentional or negligent dropping and throwing articles overboard, which fall on no inherent right to alight on private property without the consent of the owner, though leptlon might possibly be allowed where an act of God or inevitable accident is the cause. Every aeronaut shall be responsible for all damages suffered in this state by ai son from injuries caused by any v.,.. an airship directed by such aeronaut; and if he be the agent or employee of anotl making such a voyage, his principal or employer shall be liable for such damage. Conn. Public Acts of 1911, p. 135L A Massachusetts act of May 7, 1913, lates the use of air-craft; makes provision for the license of aviators after examination and registration; prescribes rules of the air for meeting and overtaking corresponding with the marine practice. Air machines are forbidden to fly over municipalities, i at prescribed altitudes, or to fly over crowds of people. Aviators are held liable for injuries resulting from Hying unless they can demonstrate that they had taken every reasonable precaution to prevent injury. Dropping missies without special permission is forbidden, and also binding on public property without permission. See generally Lycklama, Air Sovere lg Hazeltine, Law of the Air; Davids, Law of Motor Vehicles, chap. 1!». The "Sovereignty of the Air" is treated by Blewett Lee, In Report of i e Bar Ass'n (1913). He cites: Weill, The Air- Ship in Local Law, etc. (Zurich, Revue Juridicque Internat. de la Loco: Aerienne, Vol. II.; Catellani, II Diritto Aereo; Proceedings in Inter-Nat Fair Association (1912, Paris Conference).