Hinman v. Pacific Air Transport

United States Court of Appeals for the Ninth Circuit · 1936 · Property

Propertyairspacead coelum doctrinetrespassflightairspacetrespassoverflight

Facts

The plaintiffs owned about 72 and one-half acres in Burbank and alleged ownership and possession of the superjacent airspace to at least 150 feet above the surface. They alleged that the defendants, commercial airlines, repeatedly flew aircraft across two well-defined paths over the land at altitudes ranging from as low as 5 feet to less than 100 feet above the surface while landing, despite notice to desist. The complaints sought an injunction against further flights and damages, alleging that the repeated flights would impose a servitude on the land and that the use of the airspace was worth $1,500 per month. The bills, however, did not allege facts showing how the flights caused actual or substantial injury to the plaintiffs' use or possession of the land.

Issue

Does a landowner have an absolute property right in the airspace above the land, such that flights through that space are trespasses without more? If not, do the complaints state a claim for injunction or substantial damages based on the alleged low-altitude overflights?

Rule

The ad coelum doctrine is not taken literally. A landowner owns only so much of the space above the ground as he can occupy or make use of in connection with the enjoyment of the land, and that right varies with his needs. Overflight through airspace above land is not itself a trespass; it becomes actionable only when done under circumstances causing injury to the landowner's possession, beneficial use, or actual and substantial damage. Continuous use of airspace above another's land cannot ripen into a prescriptive easement in the air.

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One of 10 multiple-choice questions for this case. Pick an answer to see why.

Nina Alvarez owns a five-acre parcel outside Tucson, Arizona. She sues Desert Mesa Charter, alleging that its sightseeing planes pass 250 feet above her land and that she owns all airspace above the parcel up to 500 feet because she may someday build a hotel tower there, but she alleges no present structures or current use of that airspace.

Under the majority rule, which is the strongest argument for dismissing Nina's claim for trespass?

Explanation. The majority rejected a literal ad coelum rule. It held that a landowner owns only so much of the space above the ground as the owner can occupy or make use of in connection with enjoyment of the land, and not definite unused spaces claimed merely for contemplated future use. Because Nina alleges only a future possibility and no actual use or interference, her theory of absolute ownership fails.