AVIATION. The air space above the high seas and unoccupied territory is admittedly free to all nations and persons. It is with the air space above territorial lands and wa ters that conflicting views of the rights of nations are concerned. According to Hazel tine (Law of the Air), there are the freedom of-the-air theories, which comprise abso lute and partial freedom either by lateral zone divisions or limited exercise of rights; and the sovereignty-of-the-air theories which may also be classified into absolute sovereign ty and limited sovereignty groups. The zone and limited sovereignty theories are usually based on analogy to the three mile limit of sovereignty over the high seas. This analogy is obviously unsound both on account of the unsafe condition of states if alien and hostile were permitted to sail over them above a prescribed height, and the difficulty of calculating the exact or even approximate height of air-craft. The absolute sovereignty theory is probably better justified on reason and practicality. Rights of aliens to unhin dered passage and rules for alighting could be settled by international agreement. See 4 Am. J. Int. L. 95; 45 L. J. 402; 126 L. T. 168. It is said to be clear that the territo rial jurisdiction of a state must extend to the atmosphere above its soil if the state is to be able to protect itself from airships which would otherwise have it in their power to violate the laws of the state, or to inflict injury upon the citizens of the state in case of accident to the airship. On the other hand, it is reasonable that a state should allow the innocent passage of foreign air ships through its territorial atmosphere, sub ject to the domestic regulations imposed up on the aerial traffic of its own citizens. In this respect the territorial atmosphere of a state may be considered as governed by the same rules as the territorial waters of the state. Hershey 232.
With regard to the rights of a landowner in the air space above his land, there are al so divergent views of absolute and limited rights. The Roman Law regarded the air as res putiica, free to all persons. The French Code, on the other hand, defines land as including everything above and below the surface. The German Imperial Code adopts this same theory but limits the landowner's right to exclude persons from using the air space, to his actual interest in such exclu sion. The Swiss Code is similar.
At common law the old maxim of cujus est solum, ejus est usque ad ccelum has led to much confusion. In its origin it had refer ence to the right of the owner to have the air space above his land remain in its natural state and to have excluded therefrom any thing which would detract from his enjoy ment of the land. 4 Am. J. Int. L. 95 ; 71 Cent. L. J. 1; 46 Can. L. J. 480. The flying of fowls, the passage of smoke and of wire less messages over another's land have never suggested such a conflict with the maxim as would amount to a trespass. Even naviga tion by, balloons and aeroplanes for a cen tury or more has been tacitly permitted. See
4 Camp. 219; 3 Bengal LA R. 43. But such passage in every instance must not by its frequency amount to a nuisance. The degree of peril and inconvenience to the landowner defines his legal rights ; 14 Law Notes 69 ; 16 Case and Comment •216.
Under the commerce clause in the United States constitution it would seem that Con gress has power to regulate aerial naviga tion; in the absence of such regulation, the individual states may legislate for their own exclusive territorial air space.
As to the liability of aviators for accidents it has been held that they are liable for all damage both direct and consequential ; Guille v. Swan, 19 Johns. (N. Y.) 381, 10 Am. Dec. 234; Conney v. Ass'n, 76 N. H. 60, 79 Atl. 517. This result is based on the view that all aerovehicles are dangerous devices and as such are operated at the aviator's peril. It is conceivable however that as aerial science develops, so that the present dangers and uncertainties are obviated, the stricter rule of liability will give way to one holding the aviator liable only for negligence. It has been urged that the more liberal rule would aid materially in the development of aerial science.
The intentional or negligent dropping and throwing articles overboard, which fall on private property and cause damage, is gen erally subjected to heavy liability. There is no inherent right to alight an private prop erty without the consent of the owner, though an exception might possibly be allowed where an act of God or inevitable accident is the cause.
Every aeronaut shall be responsible for all damages suffered in this state by any per son from injuries caused by any voyage in an airship directed by such aeronaut ; and if be be the agent or employee of another in making such a voyage, his principal or em ployer shall be liable for such damage. Conn. Public Acts of 1911, p. 1351.
A Massachusetts act of May 7, 1913, regu lates the use of air-craft ; makes provision for the license of aviators after examination and registration ; prescribes rules of the air for meeting and overtaking corresponding with the marine practice. Air machines are forbidden to fly over municipalities, except at prescribed altitudes, or to fly over crowds of people. Aviators are held liable for inju ries resulting from flying unless they " can demonstrate that they had taken every rea sonable precaution to prevent injury. Drop ping missies without special permission is forbidden, and also landing on public prop erty without permission.
See generally Lycklama, Air Sovereignty ; Hazeltine, Law of the Air ; Davids, Law of Motor Vehicles, chap. 19.
The "Sovereignty of the Air" is treated by Blewett Lee, in Report of Tennessee Bar Ass'n (1913). He cites : Weili, The Air Ship in Local Law, etc. (Zurich, 1908) ; Revue Juridicque Internat. de la Locomotion Aerienne, Vol. II.; Catellani, Il Diritto Aereo; Proceedings in Inter-Nat. Fair Asso ciation (1912, Paris Conference).