Herman, Florence S.

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St. John's University School of Law

St. John's Law Review Volume 7 Number 1 Volume 7, December 1932, Number 1 Article 33 June 2014 Aeronautics--Wrecked Aircraft--Examination of, Before Removal Florence S. Herman Follow this and additional works at: https://scholarship.law.stjohns.edu/lawreview Recommended Citation Herman, Florence S. (1932) "Aeronautics--Wrecked Aircraft--Examination of, Before Removal," St. John's Law Review: Vol. 7 : No. 1 , Article 33. Available at: https://scholarship.law.stjohns.edu/lawreview/vol7/iss1/33 This Recent Development in New York Law is brought to you for free and open access by the Journals at St. John's Law Scholarship Repository. It has been accepted for inclusion in St. John's Law Review by an authorized editor of St. John's Law Scholarship Repository. For more information, please contact selbyc@stjohns.edu. ST. JOHN'S LAW REVIEWrisk is shifted from our citizen and placed on the municipal cor-poration against whom the crime has been committed, and who,through its professional police officer, has drafted the assistance,if it results in harm to him who answered the call. Thus society,which has always recognized the right to assistance of the wronged,now must compensate the avenger who is himself harmed while soupholding the peace.LAWRENCE T. GRESSER, JR.AERONAUTICS-WRECKED AIRCRAFT-EXAMINATION OF, BE-FORE REMOVAL.-The aviation policy of New York, according to theState Aviation Commission, is predicated on the belief that the basiccontrol of aeronautics is primarily a function of the federal govern-ment.' In conformity to this, all aircraft and airmen are required toprocure a federal license,2 and comply with the federal standards forairworthiness.8 However, since 1928, there has been a rapid increasein the number of state laws supplementing the national statutes,resulting in the imposition of stringent local requirements. 4Such a law became effective in July, 1932, 5 in the case of acci-dents occurring through the falling or faulty landing of an airplane.It reads as follows:"When an aircraft falls or lands in a wrecked conditionor is wrecked by the fall or in landing and an occupant thereofis killed or severely injured thereby or escapes death or injuryby the use of a parachute, neither such aircraft or any part ofit shall be destroyed or removed before the expiration oftwenty-four hours thereafter without the permission of aninspector of the United States Department of Commerce or amember of the state police and if, before it is destroyed orremoved, such an inspector or member of the state policeshall appear at the scene of the wreck for the purpose ofexamining the aircraft it shall not be destroyed or removeduntil the examination is completed within forty-eight hoursof the time that the aircraft fell or landed. This section shalland thirty, one hundred and thirty-two, one hundred and thirty-three and onehundred and thirty-four of the Decedent Estate Law."'Foreword," LAWS AFFECTING AVIATION OF THE STATE OF NEW YORK,1932, published by the New York State Commission on Aviation, Albany, N. Y.2 Laws of 1928, c. 233, art. 14, §241.'Ibid. §243.'Laws of 1928, cc. 169, 233, 373, 408; Laws of 1929, cc. 16, 31, 53; Lawsof 1930, cc. 289, 334, 488; Laws of 1931, cc. 99, 101, 225; Laws of 1932, cc.121, 187, 594.6S. Int. 652, March 15, 1932. Introduced Feb. 3, 1932.CURRENT LEGISLATIONnot prevent or postpone the destruction or removal of awrecked aircraft lying in a public street or highway in a posi-tion that causes a blockade of traffic, or lying in a navigablewaterway in a position that impedes or imperils navigation,or which lands or falls on a public building or structure, or ina case where the immediate destruction or removal of theaircraft is necessary to prevent injury to persons; but suchnecessity, in the case last mentioned, shall be matter of defensein any prosecution for a violation of this section. A personwho destroys or removes, or causes to be destroyed or re-moved, a wrecked aircraft in violation of the provisions ofthis section is guilty of a misdemeanor." 6It is a necessary characteristic of a good legislative system thatit be able to keep pace with current development in the civilization itgoverns. This statute is a good illustration of the possession of thatability by our legislature, which under its power of enacting lawsprotecting the safety of our citizens, has deemed it wise to be stricterwith, and to secure more control over, the airplane than the variousother types of public carriers. Motor vehicle operators must reporttheir names and license numbers, either to the person they injure orto a police officer.7 Railroads 8 and vessels 9 must report the circum-stances concerning accidents in which they are involved. But nowin New York, remains of airplane accidents are to lie untouched tillofficial inspections, much the same as the corpse after a murder.Merely reporting this type of accident does not satisfy the statute.10We wonder whetlher this connotes a general tendency in airplanelegislation, and, if so, how far it will lead; but as to the instant lawwe believe that no charge of unconstitutionality on the grounds ofundue discrimination can be made out. The section falls within thetrend of legislation permitted by the Supreme Court of the UnitedStates." The policy of the national government would appear to be'Laws of 1932, c. 121, GEN. Bus. LAW §257, subd. 1 and 2.Laws of 1910, c. 374, §290, subd. 3; People v. Rosenheimer, 209 N. Y.115, 102 N. E. 530 (1920).Laws of 1907, c. 429, §47.' Laws of 1903, c. 430, §4."Neither the federal law (Air Commerce Regulations, Laws of 1928, c. 3,§34), nor the state laws (Conn. Laws of 1929, c. 253, §§31, 32; Mass. Order ofDept. of Public Works, June 10, 1929; Pa. Laws of 1929, c. 315, §704; Vt.Laws of 1929, art. 79, §11; Va. Regulations of Corp. Comm. Rule 34, July 1,1929), except New Hampshire (Order #2234, Aug. 1, 1930, art. X, §§ b and2; 1930; 1930 U. S. Aviation Report 435) and New York (supra note6), require more than the reporting of airplane accidents. The UniformState Law on Aviation (1928 U. S. Aviation Repprts, 438 et seq.) is silent onthe subject. For a discussion of these laws see Aviation Law and the Consti-tution, (1930) 39 YALE L. J. 1113-1129.nli re Considine, 83 F. (lst) 157 (C. C. D. Wash. N. D. 1897) ; SlaughterHouse Cases, 83 U. S. 36 (1872); Atchison, Topeka & Santa Fe R. R. Co. v.Matthews, 174 U. S. 96, 19 Sup. Ct. 609 (1899) ; Jacobson v. Mass., 187 U. S.11, 25 Sup. Ct. 358 (1904); People ex rel. Lieberman v. Van De Carr, 199ST. JOHN'S LAW REVIEWthat it will not interfere with the state regulation of industry, wherethe cause arising may be brought in under the general heading ofpolice power of the state,12 within these bounds; if the result to beattained is of itself reasonable, even though the means to accomplishthat end be not of the best, and, in fact, even if it fall short of expec-tations, so long as it is in pursuance of the general reasonable aim,the law will be upheld. Inasmuch as this law is aimed at ways andmeans of furthering safety, it comes under the foregoing generalproposition.The management of some air-carriers feel that the best way toaid the industry is not to pass more laws, but to give more freedomuntil the industry is further developed 13 However, while most air-men may ha-ie a high regard for public welfare and will not abuseany privileges granted to them, all might not have the same highstandards, and a laissez-faire policy towards them would be perilous.When it is remembered how new the industry is, how great the needto learn the causes of its fatalities, and how wary, as yet, the publicis towards its widespread use in travel, then this law which at firstseems harsh, because it imposes a stricter rule on airplanes than onother carriers, becomes more understandable. Despite the spectacu-lar achievements of aeronautics,' 4 its inherent dangers have beenmagnified by its growth. 15 In fact, reported casualties in the UnitedU. S. 552, 26 Sup. Ct. 144 (1905); Laurel Hill Cemetery v. San Francisco, 216U. S. 358, 30 Sup. Ct. 301 (1909); Noble State Bank v. Haskell, 219 U. S. 104,31 Sup. Ct. 471 (1911).1 Police power is not limited to regulations for promotion of public health,safety or morals alone, but extends to public convenience, notwithstanding itmay interfere with the enjoyment of private property. Novelty is no argumentagainst such regulations. See Village of Carthage v. Frederick, 122 N. Y. 268,25 N. E. 480 (1890) ; People ex rel. Tyroler v. Warden of City Prison of Cityof New York, 157 N. Y. 116, 51 N. E. 1006 (1898); People v. C. Klink Pack-ing Co., 214 N .Y. 121, 108 N. E. 278 (1915); Edgar A. Levy Leasing Co.,230 N. Y. 634, 130 N. E. 923 (1921); Wulfsohn v. Burden, 241 N. Y. 288,150 N. E. 120 (1925)." See article by John F. O'Ryan, Limitation of Aircraft Liability (1932)3 AIR L. REv. 35.14 For excellent short summaries of the growth of industry see: "Commer-cial Aviation," The Conference Board Bulletin, Oct. 15, 1929; "The AviationIndustry," the Index, New York Trust Co., March, 1932; Wall Street Journal.June 27, 1932, 9; "Aviation and National Industry," United States AviationMagazine, March 8, 1930.'A short statistical tabulation of the industry in the United States indicatesthis growth:SUMMARY OF AIR TRANSPORT OPERATIONSYear Miles Flown Passengers1926 4,608,880 5,7821927 5,242,839 12,5941928 10,472,024 52,9341929 20,242,891 165,2631930 28,833,967 385,9101931 43,305,478 457,753- AIRCRAFT YEAR BOOK FOR 1932, AERONAUTICALCHAMBER OF COMMERCE OF AMERICA, 519.CURRENT LEGISLATIONStates have increased twofold within four years.1 6Although some may urge that insufficient experience exists uponwhich to base aerial legislation, still the need to protect the public is sowell known that it forms a more than proper groundwork for laws inthis field. It was, of course, this need that promoted the instant law.Whether the desired end will be accomplished thereby rests with thefuture.FLORENCE S. HERMAN.ADVERSE POSSESSION-REDUCTION IN TIME REQUIRED.-In thelaws of New York for 1932, the legislature has seen fit to amend theCivil Practice Act in relation to adverse possession under a writteninstrument or judgment.' Section 37 now provides that "where theoccupant or those under whom he claims entered into the possessionof the premises under claim of title, exclusive of any other right,founding the claim upon a written instrument, as being a conveyanceof the premises in question, or upon the decree or judgment of acompetent court, and there has been a continued occupation and pos-session of the premises included in the instrument, decree, or judg-ment, or of some part thereof, for fifteen years, under the sameclaim, the premises so included are deemed to have been held ad-versely * * *." Section 262 allows a presumption in favor of theone possessing legal title but such presumption is deemed to have beenovercome when the premises have been held and possessed adverselyto the title for fifteen years before the commencement of the action.The adoption of the fifteen-year limit has been applied to sections34-5 and 36 also.It is quite evident from this legislation that a more or less radicalchange has been inaugurated in limiting to fifteen years action previ-ously allowed twenty. That this modification is the expression ofmore progressive views on this phase of the law can hardly be denied.The development of the law in this regard has been slow. In fact,the trend in the beginning was to increase instead of decrease theperiod in which to bring actions against one holding adversely.2 Theearliest legislation is to be found in the statute of 20 Henry 3rd, c. 9,in which an action could not be maintained if the person claimingadversely had so held from the reign of Henry 2d, which was aperiod of seventy years. In 1275, this period was increased to eightyyears by 3 Ed. 1st, c. 39, providing as it did "that the adverse pos-session barring the action was fixed from the time of Richard theFirst." 3 This was the duration of time for such actions until the" "Accidents in Civil Aeronautics," ibid. p. 34.GEN. LAWS OF N. Y. (1932) cc. 261-2-3-4-5.'DIGnY, HISTORY OF THE LAW OF REAL PROPERTY (5th ed. 1898).'WALSH, LAW OF REAL PROPERTY (2d ed. 1927).

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Aeronautics--Wrecked Aircraft--Examination of, Before Removal

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