Logan, George B.

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Washington University Law Review Volume 16 Issue 4 January 1931 Aviation and the Maxim Cujus Est Solum George B. Logan Washington University School of Law Follow this and additional works at: https://openscholarship.wustl.edu/law_lawreview  Part of the Air and Space Law Commons Recommended Citation George B. Logan, Aviation and the Maxim Cujus Est Solum, 16 ST. LOUIS L. REV. 303 (1931). Available at: https://openscholarship.wustl.edu/law_lawreview/vol16/iss4/3 This Article is brought to you for free and open access by the Law School at Washington University Open Scholarship. It has been accepted for inclusion in Washington University Law Review by an authorized administrator of Washington University Open Scholarship. For more information, please contact digital@wumail.wustl.edu. AVIATION AND MAXIM CUJUS EST SOLUMAVIATION AND THE MAXIM CUJUS EST SOLUM*BY GEORGE B. LOGANIn these days of competition between lawyers and trust com-panies, between lawyers and real estate men, between lawyersand insurance companies, and in these times when group in-surance, sick benefits and workmen's compensation laws aresettling for themselves many questions formerly litigated, it iscomforting to know that there is a new industry, which offershope of some additional employment not only to lawyers of todaybut to the lawyers of the next several generations.Perhaps this is only by way of saying that the law is a per-manent profession. Each new invention, each new developmentof civilization, each new mode of living brings its law and itslitigation. The casebooks are full of reports of railroad suits,automobile cases, electric power and telephone cases, all arisingby virtue of new inventions and representing litigation non-existent but for these new inventions.We now have on our legal as well as on our social horizon anew invention as important as any of the others because it in-volves a change of transportation as well as of our mode of liv-ing, and because it offers a possibility of more litigation and leg-islation than probably any other. The reason I make this state-ment is that this new invention, the airplane, makes use of ahitherto unused element. The air is now usable for transporta-tion-it is navigable. The significance of this statement, inview of the facts that only land and water have heretofore beenusable for this purpose in all the thousands of years of our his-tory, can hardly be overestimated.What the effect will be on law as well as on life can at best bebut conjectured in a brief talk, such as I mean this to be. Infact, only one topic of the limitless possibilities may be men-tioned.The first violent impact of this new invention on the old orderof things in law is the clash when the right to air navigation runs* Credit for the major portion of this material is gladly given to the briefof Messrs. Cuthell, Hotchkiss & Mills, attorneys in the Swetland-Curtiscase cited above. G. B. L.Washington University Open ScholarshipST. LOUIS LAW REVIEWdirectly afoul of one of the most firmly and permanently estab-lished rules of our common law.All law students are familiar with the maxim, Cujus est solum,ejus est usque ad coelum et ad infernos. For more than tenyears lawyers have speculated in addresses such as this one andin articles in pamphlets and legal magazines, as to what wouldhappen when some landowner should say "No" to an aviatorflying over his land and should invoke the maxim as the reasonfor his "No," and ask the aid of the courts to make his "No" ef-fective. It is still permissible to speculate, although the pointhas been raised in two cases in the United States; for, unfor-tunately, it has not been definitely determined. The cases towhich I refer are Smith v. New England Aircraft Company,1and Swetland v. Curtiss Airports Corporation.2The facts in these cases were fairly similar. In each case alandowner, whose property adjoined an airport, had broughtsuit to enjoin the flying of the planes using the airport over hisproperty and, in each case, had alleged that these flights con-stituted both trespass and nuisance. In both of these cases thecourts held that flights above 500 feet were lawful, basing theirdecision as to this point on the regulations issued by the Depart-ment of Commerce,3 which define the minimum safe altitudes offlight at 500 feet and above. The Air Commerce Act itselfspecifies that the navigable air space (above the minimum safealtitudes of flight) shall be subject to a public right of flight. Inboth cases, however, the courts held that flights below 500 feetconstituted trespasses. Both courts discussed at length theancient nmaxim and threw considerable doubt on the birth, origin,and respectability of the old greybeard, but both were apparentlyloath to let loose of so well established a legal doctrine.Bear in mind that we lawyers likewise have a well establisheddoctrine in our own minds and that is that trespass implies andcalls to mind either title or possession. Hence, to sustain theaction of trespass, the plaintiffs in these cases must have hadeither ownership of the air space or possession of it. Not having-possession, at least not physical possession, the theory of tres-(Mass. 1930) 170 N. E. 385.(D. C. N. D. Ohio, 1930) 41 F. (2d) 929.'Air Commerce Act, 44 Stat. 568 (1926), 49 U. S. C. A. sec. 171.https://openscholarship.wustl.edu/law_lawreview/vol16/iss4/3AVIATION AND MAXIM CUJUS EST SOLUMpass in the minds of the court must have been based upon owner-ship. Since the shadow of these decisions has hung as a pallover the future of air navigation, it is exceedingly importantthat we as lawyers investigate for ourselves the birthplace andthe family history of this maxim of law.Dean Pound has said that sometimes a Latin maxim is a sub-stitute for thought and it remains for us to see whether thismaxim appears as thought or merely a substitute.The earliest English text in which we find a statement of themaxim is COKE on LITTLETON. 4And lastly, the earth hath in law a great extent upwards,not only of water as hath been said, but of aire, and all otherthings even up to heaven, for cujus est solum ejus est usquead coelum, as it is holden.It is necessary to note that Lord Coke was considering thefeudal concept of land and that land then was of the highestimportance and the corner stone of the feudal system itself. Sorespected was land that in an action trespass quare clausum fre-git, if entry on one's land was shown, there was no defense.But, under this system, there were rights in land or ratherarising out of the ownership of land, which did not attain to thedignity of ownership or possession. There were such rightsas piscary and turbary; there were rights in common fields;there were the necessary rights of ingress and egress; the an-cient rights of firebote and fencebote; above all there was theright of escheat which belonged to the crown. All of such rightswent with and appertained to the ownership of some parcel ofland (or with tenancy) but eventually were not expressed by theland ownership itself.Now it is evident that there are more ways of interfering withrights in land than by actual trespass. One of the greatestrights in land, a right which existed then and does now, is theright of complete and peaceful enjoyment. This right could bejust as effectively interfered with by a boiler factory on one sideof the hedge as on the other. The early common law made adistinction; for in the one case there was the action of trespassand in the other the ancient writ of Quod permittat, the fore-'Bk. 1, see. 1, "Terra," p. 4.Washington University Open ScholarshipST. LOUIS LAW REVIEWrunner of the action of nuisance. This gives us, then, the back-ground at the time Coke wrote and gives us the sharp distinctionwhich existed at that time between the right of property and theright of peaceful enjoyment of property. It is evident that whatCoke was saying was not only that a man's castle was his ownbut also that he could build his castle as high as he saw fit andthat none might interfere. It is also evident, for that construc-tion would have been as unnecessary as it was impossible, thathe was not saying that the man who owned the land owned thecubic contents of the air space enclosed by vertical planes, pro-jected upward from his boundary lines. This early distinctionbetween the action of trespass and the action of nuisance has ap-parently been lost sight of, but it is important today in interpret-ing the meaning of an old common-law writer.With this survey of the background, let us return to Coke'sstatement. He cited three cases from the Yearbooks. Thesewere 22 Henry VI 59, 10 Edward IV 14, 14 Henry VIII 12. Thefirst case is a dispute as to the ownership of six young goshawksas between landlord and tenant under a lease. The second caserelates to the theft of muniments of title in which the case of thegoshawks is referred to. The latest one discusses the right ofthe Bishop of London as landlord to certain herrons and shovel-ers nesting in trees on land which the Bishop has leased. Thesignificance of some of the cases is somewhat obscure to thereader of today but the result seems entirely sound. The cruxof the matter seems to be that the owner of land has an interestin birds that nest in trees growing thereon because if he ownsthe land which enfolds the roots of the trees he owns the branch-es that are in the air space above and in which the birds in dis-pute have their nests. The litigation between landlord and ten-ant turns on the rights under leases and does not affect the ques-tion in which we are particularly interested. All of these casesemphasize the right of the landowner to the fullest use and en-joyment of his property.There remains the Latin maxim itself. Examination showsthat the words are attributable to Accursius, a glossator or com-mentator on the Code, who flourished in Bologna about the year1200. Mr. Bouve, in a very interesting discussion on this samesubject, finds evidence that the son of Accursius was taken tohttps://openscholarship.wustl.edu/law_lawreview/vol16/iss4/3AVIATION AND MAXIM CUJUS EST SOLUMEngland by Edward I on his return from the Holy Land andthere lectured on subjects of Roman Law at the University ofOxford. It is suggested that this was the reason that the maximgained currency, as stated in Burry v. Pope,5 as early as EdwardI, who reigned from 1239 to 1307.Accursius, however, used the phrase in a discussion of a rightto maintain a burial plot or tomb free from interference of anoverhanging building. There can be no quarrel with this doc-trine, for an overhanging building would clearly have been apermanent invasion of the right of complete enjoyment of theland. But, when all is said and done, the rights now asserted inair space inevitably come back to this Latin maxim.After Coke's text, there came a discussion contemporary withCoke in Penruddock's Case, reported by Coke himself. This in-volved an overhanging building, dropping rain on the land, butthe action was by way of the writ of Quod permittat. Theholding was that it constituted a nuisance and that it should beabated.Another case, also contemporary with Coke, was Baten's Case.7Here again was a projecting house, depositing rainfall on theplaintiff's land, and again the use of the ancient writ of Quodpermittat.There is a lapse then of over 200 years until we find the famousdicta of Lord Ellenborough in Pickering v. Rudd., This was acase of a projecting barber sign. Lord Ellenborough gave ahint of the future when he said:I do not think it is a trespass to interfere with the columnof air superincumbent on the close. . . . If this board over-hanging the plaintiff's garden be a trespass, it would followthat an aeronaut is liable to an action of trespass quareclausum fregit at the suit of the occupier of every field overwhich his balloon passes in the course of his voyage.In view of the fact that balloon flights carrying passengershad been inaugurated by the Montgolfier brothers in 1783, LordEllenborough must be recognized as having at least the propheticsense of what is happening today.(1588) 1 Cro. Eliz. 118. 7 (1611) 9 Coke 54.'(1597) 3 Coke 205. 8 (1815) 4 Camp. 219.Washington University Open ScholarshipST. LOUIS LAW REVIEWFollowing that came the case of Fay v. Prentice," which was acase involving a projecting cornice, precipitating rainfall onplaintiff's garden. The judge cited Penruddock's Case andBaten's Case and referred to the Latin maxim as "a presumptionof law not applicable in all cases."Just twenty years later, in Kenyon v. Hart,1° Lord Blackburnquoted the dicta of Lord Ellenborough and said that he "agreedwith the sound sense of his comment, but doubted the legalreasoning." With all due respect to the memory of LordBlackburn, it would seem that sound sense and legal reasoningshould not be strangers, but handmaidens and go together. In-deed, Justice Holmes has said that the law is but the expressionof accumulated wisdom.It will be noted that in the foregoing cases there was simplya citation of the maxim, wholly unnecessary to the decisionsmade. In the case of Corbett v. Hill,1 we again have dicta, byVice-Chancellor James, expressing a belief in the old maxim.This was a case where the defendant, owning two adjoininghouses, had sold one to the plaintiff. The remaining houseowned by the defendant had a room which projected over theline of the property sold to the plaintiff. It was unnecessaryfor the Vice-Chancellor to make the statement that a conveyanceof the house conveyed the air space. The projecting room of thedefendant was an obstruction to the right of complete enjoy-ment and could be abated as a nuisance.A case decided in the same year which has been muchquoted and cited and for the most part incorrectly is the case ofEllis v. Loftus.12 This is a case in which damages were soughtfor injuries by one horse kicking another horse through thefence. It is cited as authority for the proposition that a horsekicking through a fence commits trespass, but the case itself isbased upon negligence.These are the leading English cases down to date. OurAmerican cases have followed them almost blindly, and, as wedid not continue to retain in our practice the distinction betweenthe ancient action of Quod permittat (later succeeded by trespasson the case) and the action of trespass, a great many of our cases- (1845) 1 C. B. 827. n (1874) 9 L. R. Eq. 671.10 (1865) 32 L. J. Rep. 87. - (1874) L. R. 10, C. P. 10.https://openscholarship.wustl.edu/law_lawreview/vol16/iss4/3AVIATION AND MAXIM CUJUS EST SOLUMindiscriminately use the word trespass in referring to overhang-ing boughs, cornices, roofs, etc., while the cases themselves aredecided on the grounds of nuisance.It is now necessary to stop and detour. In spite of the casesholding that "he who owns the soil owns likewise to the heav-ens," it is nevertheless true that from the most ancient of days,everything which could fly has been permitted to fly. Thereare no cases involving a trespass by bees, carrier pigeons, domes-tic ducks, geese, chickens, and particularly by balloons. The non-existence of the holding that flight by balloons constitutes a tres-pass is a strong argument that the question of trespass wasnever raised, because a balloon passage is noiseless and, whilenoise may create a nuisance, it could not add to nor detract fromthe existence of trespass.It is now proposed to make a double-barrelled argument--first,that the landowner does not own the air space, and second, thatif he does own the air space according to common law, the com-mon law should be changed. In the first place, it is evident thatnone of the decided cases involved anything beyond a height closeto the ground, and hence, even though the maxim was frequentlyquoted, the statement of the maxim can at best be dicta in thedecided cases. It is well known that questions that merely lurkin the record are not raised. It is only those questions necessaryto a decision of the case as presented that are in fact decided.On the other half of the scales and weighing against the maximis the old and well-known statement by common-law writersthat there are certain properties which no man may own, amongthem the air and the high seas. It is only fair to say that theseearly writers, no more than Coke himself, had in mind air space.They were probably referring to the element of air. But airspace, now that it has become navigable, at least is clearlyanalogous to the navigable seas. Just as the navigable seasbelong to all nations and all men, so does the navigable air space(aside from any question of national sovereignty, distinct fromownership, which is not here discussed).Finally, if the maxim has been the common law, it should bechanged because an individual owner of property should not bepermitted to assert rights unnecessary to his complete enjoy-ment of his land and property, and at the same time destructiveof a right so necessary to the progress of civilization.Washington University Open ScholarshipST. LOUIS LAW REVIEWIn view of the fact that the greatest right arising out of landownership is the right to complete, undisturbed enjoyment, it issufficient if this right be preserved in its completest sense to thelandowner. The right of air navigation, therefore, should becircumscribed and limited only by the right of the landowner tothe complete enjoyment of the land. This means that the rightof flight should be limited by the question of nuisance and hencethat flights which interfere by reason of noise, creating fear, in-vasion of the right of privacy, etc., should be enjoined, not be-cause they are trespasses, but because they are nuisances.The new fact of flight, the new fact of air navigation shouldbe recognized, just as Chief Justice Taney in the opinion of thePropellor Genesee Chief v. Fitzhugh,"" recognized the new factof river navigation brought about by the invention of steam-pro-pelled boats.England, by act of Parliament, has already brought at rest, inthe very cradle of the doctrine of the ancient maxim, any con-tention of rights in the upper air space by the enactment of theBritish Air Navigation Act of 1920,14 which provides as follows:Sec. 9 (1). No action shall lie in respect of trespass or inrespect of nuisance, by reason only of the flight of aircraftover any property, at a height above the ground, which hav-ing regard to wind, weather and all the circumstances of thecase, is reasonable, or the ordinary incidents of such flight,so long as the provisions of this Act and any order madethereunder and of the convention are duly complied with.It is to be hoped that either by statute or by enlightened judi-cial opinion the same question will likewise be brought to a quietand permanent rest in this country.1'10 & 11 Geo. V c. 80 see. 9 (1920).- (1851) 53 U. S. 443.https://openscholarship.wustl.edu/law_lawreview/vol16/iss4/3

Aviation and the Maxim Cujus Est Solum

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Aviation and the Maxim Cujus Est Solum

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