Can you trespass with a drone? Can you prevent a drone from flying over your property? Can you shoot it down if it does? Can you sue the operator?

The British colony of Pennsylvania was given to William Penn in 1681. Most property owners in Pennsylvania can trace their deeds back to “warrants” from William Penn. These land grants conveyed property from the center of the earth to the heavens above. There was not great risk of trespass from the air until Professor Langley’s Aerodromes (unmanned flights) and the Wright Brother’s manned flights in 1903. By 1926 Congress declared the air above the “minimum safe altitude of flight” prescribed by the Civil Aeronautics Authority as a “public highway” and “part of the public domain.”[1] The current regulations define that minimum safe altitude as 1,000 feet above congested areas and 500 feet above rural areas with a number of exceptions and qualifications (of course, it’s a government regulation).[2]

But what about the space between the ground and the minimum safe altitude flight mark? The U.S. Supreme Court weighed in on a case involving a chicken farmer, United States v. Causby[3]. During World War II, the army took over a municipal airport and started flying noisy aircraft over Thomas Causby’s land as low as 83 feet, causing many of his chickens to fly into the walls of their coop and die. These flights rendered his land unfit for chicken farming. He sued the government in the Court of Claims, asserting a “taking” of his property. The lower court decided in his favor, requiring the government to reimburse Causby for a “taking” of his property.

The Supreme Court said: “It is ancient doctrine that at common law ownership of the land extended to the periphery of the universe — cujus est solum ejus est usque and coelum. But that doctrine has no place in the modern world. The air is a public highway, as Congress has declared. Were that not true, every transcontinental flight would subject the operator to countless trespass suits. Common sense revolts at the idea. To recognize such private claims to the airspace would clog these highways, seriously interfere with their control and development in the public interest, and transfer into private ownership that to which only the public has a just claim. 328 U. S. at 260-261”

Drones and Trespass – What the Court’s say:

But the Court said: “Flights of aircraft over private land which are so low and frequent as to be a direct and immediate interference with the enjoyment and use of the land are as much an appropriation of the use of the land as a more conventional entry upon it.” Causby, supra, 328 U. S. 261-262, 328 U. S. 264-267. The Supreme Court remanded the case for a determination of Causby’s precise damages for the taking of “flight easement.”

In 1955 the Pa Supreme Court was asked if the courts had the authority to enjoin low flights said: “Where planes fly frequently over land either in interstate or intra-state commerce below minimum safe altitudes of flight and so low or in such manner as to endanger life or property, they may be enjoined by a state court as unlawful trespassers or as a nuisance, and may injure or destroy usefulness of property to such an extent as to amount to a “taking”, for which damages may be awarded.[4]

A quick check of Westlaw this morning did not reveal any reported case on drone flights as a trespass in Pennsylvania, making this a legal grey area – at least for now. There have been a number of news reports recently about people shooting down drones over their property (an understandable but bad idea for lots of reasons) and people loosing drones that crashed into their neighbor’s property. If you have a question about the legality of a drone, want to stop drones from snooping over your house, or need to get your lost drone back from an angry neighbor call the experienced lawyers at the Mazza Law Group, P.C.

[1] The Air Commerce Act of 1926, as amended by the Civil Aeronautics Act of 1938.

[2] 14 CFR 91.119 – Minimum safe altitudes: General.

[3] United States v. Causby, 328 U.S. 256 (1946)

[4] Gardner v. County of Allegheny, 114 A.2d 491 (PA 1955).

DRONES AND TRESPASS was last modified: December 30th, 2015 by William Arbuckle