Search the words DRONE – BACKYARD – SHOOTDOWN on the internet and you will get thousands of results. The results reflect the intensely visceral reaction to overflight of private property by an unmanned aircraft, whether within the personal airspace of the property owner, or not. Beyond the regulatory basics of not hazarding persons or property on the ground, the fundamental property question is highly unsettled. What are the limits of personal airspace, and what rights exist within that airspace to exclude or remove offending, trespassing objects?
The issue evolves from ancient Common Law air rights ad coelum et ad inferos (Latin for “whoever’s is the soil, it is theirs all the way to Heaven and all the way to Hell”). Subterranean rights aside, the modern devolution of air rights is founded in United States v. Causby, 328 U.S. 256, 264, 66 S. Ct. 1062, 90 L. Ed. 1206, 106 Ct. Cl. 854 (1946) (Challenging military approach paths over a farm where aircraft noise created damages). There, the court stated: “The landowner owns at least as much of the space above the ground as he can occupy or use in connection with the land.” Id. That is a rather nebulous standard. There is no absolute, quotable ceiling to personal airspace above private property. It is as high as the owner can occupy. For the owner of a single story ranch house under Causby’s rule, private airspace might theoretically extend to possibly 30 feet. The neighbor with a two story house and a HAM radio tower may conversely own private airspace to 100 feet. The lesson here: Personal airspace is incredibly ill-defined and non-uniform in application.
Air rights were formulated in the days of manned light aircraft and helicopters. Overflight of these vehicles would be a dangerous nuisance well before trespass arose. Property owners possessed unremarkable trespass protections: “We think that the landowner, as an incident to his ownership, has a claim to it [air] and that invasions of it are in the same category as invasions of the surface.” Id.
The advent of miniaturized drone technology changes that equation. The implication is clear from Causby: A drone can invade the personal airspace of a private property owner without nuisance warning, without clear danger, surreptitiously. The drone owner has potentially committed trespass, but below what commonly understood altitude? A drone flying over a backyard pool at 20 feet may trespass. A drone flying over a backyard pool at 100 feet may not trespass. Yet each generates an equally visceral reaction. The law is unsettled, notably highlighted in a recent drone shoot-down case. See generally, Boggs v. Merideth, No. 3:16-CV-00006-TBR, 2017 WL 1088093 (W.D. Ky. Mar. 21, 2017) (dismissing a federal question action by a drone owner upon shoot-down of flight over private property).
Adding confusion, in response to an administrative subpoena, the FAA has exerted control to grass top, suggesting that an entire backyard is now navigable airspace. “It appears from oral argument as well as from the FAA’s website that the FAA believes it has regulatory sovereignty over every cubic inch of outdoor air in the United States (or at least over any airborne objects therein). If so, that ambition may be difficult to reconcile with the terms of the FAA’s statute that refers to navigable airspace…” Huerta v. Haughwout, D.Conn. 3:16-cv-358 (JAM), 2016 U.S. Dist. LEXIS 92866 (July 18, 2016).
The concept that a backyard is now government-regulated, navigable airspace, independent of traditional ownership rights, has significant implications to property and air rights. In Boggs, a parallel case where a drone was shot down by a landowner, the drone owner sued for trespass to chattels in the destruction of the drone. There the federal action failed in jurisdiction. The court held: “[W]hether [the drone] aircraft was on [private] property or federal [airspace] is not significant to the federal system as a whole.” Boggs, 2017 WL 1088093, at *8. Without case law to further refine and interpret the concept of personal airspace and property rights, this issue is ripe for conflict and cases of first impression.