Gregory S. McNeal, Associate Professor of Law and Public Policy at Pepperdine School of Law, discusses some property rights questions that are associated with drone use. Do property owners own the air above their property? Can they destroy a drone that flies onto their property? How should disputes between property owners and drone users be settled?
As always, the Federalist Society takes no position on particular legal or public policy issues; all expressions of opinion are those of the speaker.
The question of whether someone can fly a drone over your house is a pretty complex one. On the one hand, someone flying a drone a couple of millimeters above the blades of grass on your land would clearly implicate your property rights. However, someone flying a drone at 500 feet or 700 feet above your land clearly would not implicate your property rights and so the question is, where do we draw the line between a couple of millimeters above a blade of grass all the way up to a couple of 100 feet above your property. Where does the landowners rights end and the public navigable airspace begin? In the 1940’s the US Supreme Court handed down a decision, US v. Causby. In the case the Causby’s who were chicken farmers sued the Federal government because the Federal government was flying over their property at low altitude. The case made it all the way to the Supreme Court and the Supreme Court said that the Causby’s actually had a property right in the airspace above their land and specifically over flights that took place at 83 feet above their land intruded upon the Causby’s property rights. What was really interesting about this case is it for the first time established a right of property in the airspace above one's land. But what was even more interesting is that the Court of Federal Claims said that not only did the Causby’s own up to 83 feet above their land, they were actually entitled to damages for over flights ranging from 83 feet all the way up to 365 feet above their property. In almost all circumstances you can't destroy a drone that flies over your property. The reason for this or the analogy is pretty simple. If someone were to ride a moped onto your land, would you be entitled to go out with a baseball bat and smash up the moped? The answer is clearly no. They would be able to sue you for damaging their property and you'd be able to sue them for a trespass and on balance I think what would end up happening is the person who destroyed the moped would get the raw end of that deal. In the same way, if you were to destroy someone's drone for flying over your property they would be able to sue you for the damages that you did to their drone. We’re starting to see a few disputes now between drone fliers and property owners and the way these disputes are oftentimes playing out is that the drone flier is flying at some low altitude and the landowner incorrectly believes that they have some right to destroy that person's drone. What we're finding in those circumstances is that for the most part courts are siding with the drone owner saying that that person has a right to operate that aircraft and not have their aircraft destroyed. However, we are also seeing a few cases, in particular a case in Kentucky where the court basically is throwing out charges against individuals who are destroying drones saying that the landowner actually has a right to destroy the drone that's trespassing upon its property. I think that the cases that are trending towards giving people a right to destroy the drones are wrongly decided. A better way to decide this is to say that landowners have some rights to exclude low altitude flights and drone operators can be liable if they fly at low altitudes whereas those drones that fly at high altitudes have a right to be there and the land owners really don't have a claim against those individuals.
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