University of Virginia Library

19. CHAPTER XIX.

LAW OF THE AIRSHIP.

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 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 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 constract

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."