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Show Controversy: Wages on Ownership of Air 9 Conflicting Rights of v Property Owners and Fliers Being Decided Ancient Ideas of Real Estate Limits May " Be Upset ' Has the property owner rudely awakened from his slumbers by the drone of an airplane motor passing over his home any redress? Or will the coming of aviation destroy the ancient doQtrine that the land owner owns to the center of the earth and to the sky sbove it? l important nations of the world j agreed In 1919 that sovereignty of the atr Is vested Individually in each j nation, a uniform state law on aero, na it tics gives control of air spaces above the land and waters of a stats to the state, the air commerce act passed by congress In 192 provides pro-vides that the air above a certain height la subject to a certain rlKt foX freedom for Inters la La and foreign, air navigation, points out the Rational Ra-tional Association of Real instate Boards In the eighty-second of Its series of stories. And on March. 4. 1930, the supreme Judicial court of Massachusetts sustained sus-tained the decision of the lower courts that Mr. Smith of Grafton was really not bothered by planes from an adjacent flying field traveling travel-ing over his land, even though Mr. Smith ststed In court that the planes not only worried him. but also worried wor-ried his horses, NO ONE KNOWS WHY The righta of property owners in connection with the future develop- ment of aviation will have to be 1 more clearly defined In the near ; future, saysthe realty association. At present no one is prepared to say who really owna the air above a piece of land and many conflicting opinions have been advanced by va- I rious authorities who realize that 1 the question is due to be settled before many more cases, like the MassasBachusetta one come before the courts. Thus, although It has been pointed out by students of the question that legislation against property owners ! who object to planes traveling over their lands cannot hold because such legislation cannot destroy their title ; to the air still Mr. Smith of Grafton must sleep as best he can this summer sum-mer on tlie estate he develoocd in the country to get away frA the city's noise. The Massachusetts courts have ruled that the planes can romp over his bedroom as they have In the past. In fact, the court stated that the noise of an alrphtne in flight at an altitude of less than 200 feet was leas and shorter tlian that occasioned occa-sioned by a motor truck, but the real estate association points out that one of the reasons why vp)e purchase country estates is to Kt away from the noise of motor trucks and similar citr- noises, and that tht was probably Mr. Smith's idea In 'occupying a country estate In Massachusetts. HE'D BETTER USE IT The Smith property st Grafton was established about 1893. In 192? sn sdjoining property was converted into a flying field. The distance from the plaintiiTa house to the nearest point of the flying field is Some 3000 feet. In rendering the decision against Mr. Smith, the Massachusetts court said, among other things, that because be-cause Mr. Smith was not occupying the air over his property, the state could, therefore, exercise police power pow-er over this atmosphere and permit ulanes to fly there under certain regulations. Th. owner of Grafton called the planes most annoying, but th. lower courts of Massachusetts, through s master sppointed to preside over this case before it resched the supreme su-preme court, took th. lnterestln, position that the Smiths, living in a modern world highly civilised standards, for this reason, had no cause for complaint. Said the master: "I find th. plaintiffs ar. persons accustomed to a rather luxurious habit of living, and whils ths noise of the airplanes In flight over their premises has caused them Irritation and annoyance, yet gauged by the standards of ordlnsry people, this noise Is not of sufficient frequency, duration or Intensity to constitute j a nuisance." unless It csuses soms harm, danger or Inconvenience to.th. occupier of th. surfsce. WRITES ON AIR LAW Carl Zollman, another atudent of thla subject, writing on the "Law of th. Air," paints a rather disturbing picture of th. possibility of airplanes hovering around a hbuse "(or tho exprees purpose of eavesdropping." H. does not think thst any flying over a horn, or open gardens or porches will constitute an actionable invasion of privacy unleea "th. seronsut should hover about th. premises with th. exprsss purpos. of esvesdropplng." Should this hsp-pen, hsp-pen, then, he says: "Ths right of privscy msy. therefore, become th. subject of fawsults u connection with aircraft." But whatever the outcome of thla mass of conflicting opinions, th. real eetat. association Is pledged to see thst the rights of property owners ar. protected In so far aa the necessary development of aviation avia-tion makes it possible, snd tbs association asso-ciation ia tbus wstchlng thee, early cases that may eetabltsh such fra-portsnt fra-portsnt precedent on this subject. ARE PLANES EXCE5SIVET Th. Smith case was decided by th. supreme court on the basis thst the police power of a state permits It to regulst. minimum heights at which planea msy fly snd thst this means ahen such itelght Is established estab-lished that planes may fly anywhere. any-where. Th. court, however, considered consid-ered only the questions of trespass snd ths nuisance resulting from its continuance. Th. court said thst ths planes flying over the Smith lends had not Interfered with any valuable use of th. Isnd snd thst there hsd not been "excessive numbers" num-bers" of airplanes droning over the Smith roofs. Future legislstion may establish who is to ssy what Is excessive In ths matter of numbers of plsnes passing over a ptfvate property. Mr. Smith, disturbed In his slumbers, probably thinks on. plan, a night IS excessive. The Massachusetts supreme court. In th. Smith decision, held thst It wss not a trespass to fly st sn altitude alti-tude of S00 feet over the property in question, but thst It wss trespass to fly ss low aa 100 feet In order to reach or leave an airport. The court held that flights at altitudes of SOO feet did not Interfere with th. rights of owners, but said nothing noth-ing about flights between 100 and i00 feet. Tet It was pointed out during this same case thst buildings in cities often reach a height of 100 feet or more. Among the vsrlous authorities who hev. written of lets on this Interesting subject ar. several who holcf that an Invasion of th. air spac. abov. tha land, without contact con-tact with th. surface, constitutes a trespass. Another says there can be no trespass without physical contact with the bind and that a mere entering Into th. air space Java itad is sat t xrs? ccoa |