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THE LAW OF THE AIR-SHIP

The lawyers in every country have been kept busy during the last century in developing a special body of law, first for the railroad, then for the telegraph, and then for the telephone. They must soon address themselves to a new task of the same nature. The air-ship has at last been brought to a state of efficiency which, while far short of perfection, takes it out of the field of mere experiment and seems to assure its speedy employment in the transportation for hire of passengers and goods. Other uses of less worth to the community or of absolute detriment are equally certain. It will be seized as an aid in evil-doing by smugglers, spies, burglars; by criminals of all sorts flying from justice; and for illicit trade of every kind. It flies over the borders of one sovereignty into those of another as swiftly and irresponsibly as a bird. How far must it be the subject of public regulation? How fully can the precepts of private law which have been found applicable to other conditions and relations be applied to those resulting from the introduction of this new agency of power? Can there be one world-law for the high air, as there is one world-law for the high sea? Can such rules as those of general average and maritime lien be applied by analogy to aërial navigation?" 1

Is there, let us first ask, a right to navigate the air?

Justinian tells us that the air, like the high seas, is by natural right common to all.2 In the sense that all can breathe it in as they have opportunity this is certainly true; but it can hardly be accepted as a proposition of jurisprudence with respect to its use for the support of a vehicle of transportation.

It has been abundantly settled by physiologists that the pectoral muscles of a human being are too weak to move anything in the

1 See discussion of this point by Meyer, Du Domaine aérieu et de sa Réglement ation juridique. Clunet's Journal, 1909, p. 687.

2 Inst. I, 1, de rerum divisione, § 1; Dig. I, 8, de divisione rerum, § 2, 1.

nature of wings in such fashion as to keep him afloat in the air. He must rely on the strength of some kind of mechanism, or on being buoyed up by something lighter than the atmosphere like balloons or balloonets, or on both. He is contending against the force of gravity; and the force of gravity never slumbers or tires. Every moment that he is being carried above the earth the structure that supports him is to some extent endangering the safety of all who are beneath it. Can it be said to be the natural right of any man thus to put in peril the lives and property of so many other men?

But if not a natural right, may it not be fairly regarded as one that can be acquired from the state?

Every independent nation must have the right to regulate the use of the air above its territory in such manner as best to promote the public interest. Its power extends to everything which man in the ordinary course of things can reach or appropriate on, or below, or above its soil. It is, in a sense, the ultimate owner of the soil and all upon it. It can tax it to any extent within the bounds of reason. It can reclaim any part of it for its own use on paying the owner just compensation, though it be taken against his will. In respect of the air-ship it will be dealing with a new means of making the air useful to its people. They will have an undoubted interest in having its utility promoted and its perils minimized. If it were to be granted, then, that no individual could navigate the air at will, it would not follow that the state could not give that privilege to whom it pleases, under such conditions as would further the public good. Every railroad is built and operated under a franchise from the state. Why? Because its construction and operation invade the tranquillity of individual land-owners, endanger the safety of person and property, and may obstruet publie travel by other means (as at highway crossings). This franchise often grants the railroad company power to enter on the lands of private individuals, without seeking their consent, for the purpose of making preliminary surveys, and without making any compensation unless damage be act

* Granwald would divide the air into a lower zone, in which there are rights of property, and a higher, where there are only spheres of influence. See Journal de Droit Prine, 1908, No 7-9, 1058.

ually done. The public interest is deemed to justify this because otherwise the best route for the railroad could not well be known. In like manner it may justify the grant to the proprietors of an airship of the right to navigate the air under proper restrictions and for proper purposes.

Such a grant might take the shape of a bare license or of a franchise. Would not a franchise so obtained be a justification within the jurisdiction of the sovereignty from which it came, as against. any adverse claim of private right? If to sail an air-ship would otherwise be either a public or a private nuisance, would not the franchise render it lawful and therefore no nuisance? This would leave the owner of land under air in a position analogous to the owner of land under water. He may have an estate in fee simple, but it will be subject to a right of regulation, as to the use of the air, in the interest of the public, by public authority.

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But has a land-owner such a right in the air above his property that, even were there no franchise for it, he could complain of legal injury from the use of it for an air-ship voyage?

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In Coke on Littleton we are told that the owner of land owns upwards the "Ayr, and all other things, even up to Heaven for, cujus est solum, ejus est usque ad coelum." This maxim was not derived from the nation whose language is used for its statement. and, as we have seen, is foreign to the conceptions of the Roman law as to what is the common property of all. It is the production of some black-letter lawyer, and, like every short definition of a complex right, must be taken with limitations.

It would seem that one of these must be that a proprietor of land cannot be heard to complain of any use of the air above it by which no injury to him can result. In other words, the law will hardly aid him by giving a remedy in court where there has been and could have been no actual damage. His right, if any, is too tenuous for the state to care to protect by its active intervention.

Perhaps we may go farther and say that he has no legal right at all over the air above his land, except so far as its occupation by others could be of injury to his estate.

4 Baldwin's American Railroad Law, p. 28.

5 Page 4.

This seems to be a view quite in accordance with the spirit of our times. Modern government tends, at all points, to push the public good farther and farther into what was formerly thought the inviolable domain of private right.

The German Imperial Code of 1900 has expressed this tendency with particular relation to the subject under discussion. Two of its sections read thus:

904. The owner of a thing is not entitled to forbid the interference of another with the thing, if the interference is necessary for averting a present danger and the threatened damage is disproportionately great in comparison with the damage arising to the owner by the interference. The owner may require compensation for the damage arising to him.

905. The right of the owner of a piece of land extends to the space above the surface and to the substance of the earth beneath the surface. The owner may not, however, forbid interference which takes place at such a height or depth that he has no interest in its prevention."

Another principle of Anglo-American law may be invoked, in determining the title of a landed proprietor to the protection of the state against invasion of what he claims to be his aërial rights.

The air-ship is a thing of passage. It flies in a second of time from a position over the soil of one man to a position above that of his neighbor. It carries to each and to all beneath it the same menace. It imperils the public generally.

Now an injury to the public is to be redressed by an action in behalf of the public. The offender is not to be vexed with separate actions by every member of it. One is enough to settle his liability and to settle it in favor of all those whom he has wronged. Only if special damage be suffered by some particular individual can he bring an individual suit for his own indemnification.

Should the air-ship drop a sand-bag in its course which strikes and wounds any individual, he would have at least a prima facie right to sue for damages whether he be or be not the owner of the land upon which he received the shock. The proprietor of the ship in whose service it was sailing and his servant, the master of the ship, would be equally liable. The Roman law would give such an action, whether

The new Swiss Civil Code, § 667, has substantially the same provisions.

the accident was or was not due to the immediate fault or negligence of the aëronaut.7 He has violated the cardinal rule alterum non laedere. Its principles in this respect are well summed up and rounded off in Art. 1383 of the Code Napoleon, in its provision that "Tout fait quelconque de l'homme, qui cause à autrui un dommage, oblige celui par la faute duquel il est arrivé, a le réparer." The Supreme Court of the United States, however, has spoken of this as too rigid a rule, and more modern codes are couched in somewhat different terms. That of Japan (Art. 709) states it thus:

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A person who intentionally or negligently violates another's right is bound to make compensation for damage arising therefrom..

The original project of the Imperial German Code excluded, in certain cases, damages that could not have been anticipated. As adopted, Art. 823 reads thus:

Wer vorsetzlich oder fahrlassig das Leben, den Korper, die Gesundheit, die Freiheit, das Eigenthum oder ein sonstiges Recht eines Anderen widerrechtlich verletzt, ist dem Anderen zum Ersatze des daraus entstehenden Schadens verplichtet.

An interesting question of pleading under the common law system would arise in drawing a declaration against an aëronaut for dropping anything upon another. Should it allege the breach of duty to be the navigation of a vehicle of transportation of a kind which might naturally require the dropping of the thing in question for the safe prosecution of the voyage, or to be negligence in management? The former averment would present a simple case, if the proposition of law involved be sound: the latter it might be difficult or impossible to prove.

But for the public wrong, if wrong it be, of making such a voyage, or of dropping such a bag, it may at least plausibly be contended that the public only can complain, on the ground that no man who was not hit has any substantial interest calling for the intervention of the law, unless he were put in some special peril.

7 Inst. IV, 3, de lege Aquilia; 5, de obligationibus quæ quasi ex delicto nascuntur; Dig. IX, 3, de his qui effuderint vel dejecerint.

& Railroad Co. v. Lockwood, 17 Wallace's Reports, 357, 383.

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